It’s Raining Experts
Selection of Multiple Experts in Complex Fire and Explosion Claims
Selecting the appropriate experts is a critical step in conducting the investigation of a complex fire or explosion scene, and will very likely have an impact on the likelihood of successfully pursuing or defending claims arising from the incident. Liability experts from various disciplines may be appropriate for such investigations.
Origin and Cause Expert
A qualified and skilled origin and cause expert is essential to any complex investigation. He or she will, of course, be familiar with NFPA 921 - Guide to Fire and Explosion and Investigations. Familiarity with this code, however, is just the beginning. This expert, in coordination with counsel and the insurance representative, will address, among other things, site security, access to the scene, and make critical decisions about how artifacts should be harvested and stored to avoid spoliation claims.
For example, depending on the nature of the scene, it may be prudent to hire 24-hour private security or erect a fence around some or the entire scene. This expert typically takes the lead in working with public officials (including the authority having jurisdiction), interviewing witnesses and overall management of the origin and cause investigation.
This expert’s primary function is to determine the origin and cause of the fire or explosion using the scientific method. In addition, to the extent adverse parties claim the origin and cause cannot be determined, or offer an alternative theory of origin and cause, this expert will be your first line of defense in rebutting these claims.
A mechanical engineer with experience in fire and explosion investigations is often a necessary part of the investigation team. It is essential for the mechanical engineer to have experience in forensic investigations. Find a mechanical engineer who has knowledge and experience with the type of equipment involved in the loss. For example, some mechanical engineers specialize in agricultural operations and understand the inner workings of tractors, combines, grain dryers and other agricultural-related equipment. Typically, the origin and cause investigator and mechanical engineer coordinate their investigations.
A forensic electrical engineer should be retained whenever there is a reasonable possibility that electrical activity was a cause of the fire. In some cases, it is necessary to have an electrical engineer participate in the on-scene investigation. For example, assume the fire involves a large commercial building that was recently constructed. You learn from a tenant that, less than 24 hours before the fire, electrical switches in a break room that previously worked were not working or worked sporadically. A forensic electrical engineer may be able to perform arc mapping or other investigative activities that decisively identify or eliminate electrical activity as the cause.
On the other hand, there are situations where an eyewitness identifies an energized piece of equipment as the area of origin. Depending on the circumstances, it may be wise to retain an electrical engineer to attend destructive testing and disassembly of the equipment in a lab setting as part of a joint inspection. In the subrogation context, origin and cause, mechanical and electrical experts can also identify potentially liable parties who need to be put on notice prior to further on-site investigation or destructive testing and disassembly.
It is uncommon to have a metallurgist participate in the on-scene investigation. There are, however, many instances where a metallurgist will be needed. For example, assume a cracked steel pipe near the foundation of a building has been identified as a potential source of propane that caused an explosion. The opposing party’s investigative team claims that the pipe was cracked as a result of the explosion, and did not cause the explosion. A forensic metallurgist, using a scanning electron microscope (SEM) and other techniques, will be able to examine the precise nature of the crack and the surface of the crack and render an opinion whether it was the cause of or result of the explosion.
In extremely complex fire scenes, one should consider retaining an evidence custodian. This person collects and stores artifacts and is the point person for providing photographs, relevant documents, and other information to interested parties. NFPA 921 specifically addresses this situation. Chapter 27, entitled Management of Complex Investigations, addresses “issues that are unique to managing investigations that are complex due to size, scope or duration. Complex investigations generally include multiple simultaneous investigations and involve a significant number of interested parties. A complex investigation may arise from a fire or explosion incident that involves circumstances such as fatalities or injuries, fires in high-rise buildings, large complexes or multiple buildings, or fires and explosions in industrial plants or commercial properties, but may not always be large in size or magnitude.”
Chapter 27 of NFPA addresses, among other things, communications among interested parties, cost sharing, nondisclosure agreements, information sharing and access control. Regardless of whether an evidence custodian is retained, one should follow the guidance in Chapter 27 in connection with complex investigations.
There is an array of other potential forensic experts that should be retained, depending on the specific circumstances of the complex fire and explosion investigation. These experts can include a chemical engineer, building code expert, gas odorization expert, and a fire spread/fire dynamics expert. The cause and origin expert and counsel are the best resources for determining which expert should be part of the forensic investigation team, when each expert should be retained, and the scope of his/her work.
Communication and Strategy
Consistent and frequent communication with each expert is essential to managing expert fees and expenses. Most experts provide a curriculum vitae and fee schedule and are not required to submit a budget. Although it is a good idea to budget expert expenses at the beginning of any claim, this is particularly true in connection with complex fire and explosion investigations. There have been many instances where a CFO or insurer experiences sticker shock upon receiving a bill. This is usually because the attorney has not managed the client’s expectations about the size of the bill, or the attorney did not request a budget in the first instance and failed to stay in communication with the expert about the amount of fees and expenses being accumulated.
It is important that thought is given to a strategy early in the process to assure that all appropriate experts are involved at the proper time. Success may depend on getting the right expert to the scene for a joint inspection or failure may be attributed to not having the right expert at the joint inspection.
Communication between the attorney, insurance company, and experts is crucial for any successful outcome in a complex case. The battle can be won or lost in the first few weeks. Do not be afraid to involve additional people early on for advice. They can be told to stop work and remain in the background until needed later. An additional set of eyes and ideas may save you from making an error of omission or commission.
Experts can be very expensive. Be aware of this, but do not exclude an expert because you can get someone else for a lesser rate. Sometimes you get what you pay for. Try to balance the cost with your potential exposure. While quick actions are required, it is imperative that careful thought be given to who you involve and when. A wrong decision may defeat your claim before you get a chance to present it.
Dave Dahlmeier is a Shareholder and Co-Chair of the Product Liability Group with Bassford Remele, PA. Paul Rutman is a Claim Manager with Southern States Insurance Exchange.
After the Fire
These are a few things to consider in the early hours and days after a fire
- What is the exposure?
- Do I need a full-out effort, or will a limited investigation be sufficient?
- Will I need a specialized attorney or can I use my local counsel?
- Do I need the top-of-the-line national expert, or can I use a local resource?
- Which experts need to be at the initial joint exam and which can wait for a later date?
- Is it necessary to have an attorney at the scene or a joint inspection?
- Is there any possibility to share experts?
- What budgets will be provided to each expert?
- What do you know about the experts on the other side? Who will you need to involve to defend their normal theories of cause?
- How do we preserve the paperwork that we need to prove our case?
- How do we preserve any physical evidence that is in our possession?