10/29/2015
Suppressing the Burn

Suppressing the Burn

Why the NFPA’s revised 1033 is the next big thing in fire claims investigations.

By John W. Reis

Is your fire investigator in your subrogation or arson case qualified? Perhaps your expert is a master of NFPA 921, the premier guideline for fire investigations issued by the National Fire Protection Association (NFPA). But what about NFPA 1033? In the fire litigation world—particularly in subrogation and arson cases—NFPA 1033 is becoming the next big avenue for expert challenges, especially with its recent revision in 2014. Attorneys are increasingly using it to attack opposing experts. Will your expert survive those attacks?

Unlocking the Power of NFPA 1033

NFPA 1033, first issued in 1987, identifies itself as a “standard,” not just a guide. It requires minimum qualifications, which “shall be followed.” It lists 16 topics that the fire investigator must know. Although 1033 is not a code or statute (unless adopted by a government), it is a standard even in states that have not adopted it by law largely because the document says it is and because the NFPA is so well respected. For example, the courts have long embraced NFPA 921, “Guide for Fire and Explosion Investigations,” as the go-to document for how a fire investigator should investigate a fire, as established in United States v. Hebshie.

But NFPA 921 bills itself as a guide, not a standard. That makes NFPA 1033 potentially more powerful. Yet courts rarely ever cite NFPA 1033, despite its prestigious title of “Standard for Professional Qualifications for Fire Investigators,” which seeks to “develop clear and concise job performance requirements that can be used to determine that an individual, when measured to the standard, possesses the skills and knowledge to perform as a fire investigator” in both the private and public sectors.

NFPA 1033’s time in the shadows is ending, however. For at least the past year, a working template of questions for fire investigators has been circulating in the fire litigation world, particularly among the defense bar in subrogation cases, using NFPA 921 and 1033, but with special emphasis on 1033 on the front end of the questioning. Fire investigators in subrogation and arson cases can now expect questions such as these:

 

Q.         Do you agree that NFPA 1033 represents the minimum qualifications for a fire investigator?

Q.         Do you agree that NFPA 1033 is a standard?

Q.         Do you agree that NFPA 1033 applies to you?

Q.         Referring to section 1.3.7, do you possess knowledge of the 16 topics beyond a high school level?

Q.         What courses have you taken [in each topic of the 16 listed]?

Q.         What is your definition of [each topic of the 16 listed]?

 

Experts are well advised to be able to fully detail the courses and publications that they have attended, authored, or reviewed on the 16 topics covered in NFPA 1033, which are discussed later. A detailed curriculum vitae can be critical. Experts also are advised to be ready with a definition of at least those 16 topics. For reasons that will become clear, however, that is only the beginning of the expert’s challenge.

Bootstrap to NFPA 921

As noted previously, although NFPA 921 is perhaps the best-known resource in fire investigations, it is not a standard like NFPA 1033. Experts who do not agree with a portion of NFPA 921 or have a less than thorough knowledge of it have used its “guide” status for protection, arguing that a guide does not hold the same status as a standard that demands minimum, mandatory requirements. Artful litigators, however, have been using NFPA 1033 to nail down experts on certain NFPA 921 provisions. For instance, NFPA 1033 often refers back to NFPA 921, citing it as a primary source for a fire investigator’s knowledge base, skills, and methodology. Does NFPA 1033’s reference to NFPA 921 raise it to “standard” status? That is the premise of a line of questioning circulating in the fire world for experts in an effort to bootstrap the importance of NFPA 921 through NFPA 1033, as follows:

Q.         Do you agree that in order to find the requisite knowledge described in section 1.3.7, the NFPA 1033 standard refers you to NFPA 921?

Q.         Do you agree that the NFPA 1033 standard embraces NFPA 921 as a source of knowledge with which all fire investigators should be familiar?

These questions are particularly clever. If the expert answers, “no,” then the expert is vulnerable to attack as unqualified under NFPA 1033. If the expert says, “yes,” it challenges the expert’s ability to downplay NFPA 921 provisions. To that end, the next line of questions circulating in the fire litigation world would seek to test the expert’s knowledge of NFPA 921, with such exam-like questions as the following:

Q.         How is the size of a fire measured?

Q.         What is air entrainment?

Q.         What is a ceiling jet?

Q.         What is the definition of flashover?

Q.         What is the definition of a fuel-controlled fire?

Q.         What is the definition of a ventilation-controlled fire?

Q.         What is your understanding of the phrase “changes of state”?

Q.         What is the difference between a vapor and a gas?

Q.         What is your understanding of the word “decomposition”?

Q.         What is the definition of combustion?

Q.         What is the definition of pyrolysis? Is it reversible?

Q.         What is the chemical formula for hydrogen gas? For oxygen gas?

Q.         What is the chemical reaction for the combustion of hydrogen?

Q.         What is the concentration of oxygen in air?

Q.         What is the relationship between temperature, volume, and pressure?

Q.         What is the difference between heat and temperature?

Q.         What is radiant heat flux?

Q.         What is your definition of fire?

Q.         What are the basic units of energy?

Q.         What are the basic units of power?

Q.         What is a watt?

The expert facing a deposition is well advised to bring a copy of NFPA 921 and NFPA 1033 since depositions are not necessarily closed-book tests. However, it helps to have studied the texts well in advance.

New Requirements

The 2014 edition of NFPA 1033 amended the 2009 edition, which required knowledge “beyond the high school level” on 13 topics: fire science; fire chemistry; thermodynamics; thermometry; fire dynamics; explosion dynamics; computer fire modeling; fire investigations; fire analysis; fire investigations methodology; fire investigations technology; hazardous material; and failure analysis and analytical tools.

The 2009 edition stated that “a post-secondary education level” was required on these topics, which suggested a college degree. The 2014 version deletes the phrase, taking out the argument that college is required, but now the expert must remain current on the topics “by attending formal education courses, workshops, and seminars, and/or through professional publications and journals.” Also, it adds three more heavy-duty topics to the list of 13 stated in the previous paragraph: fire protection systems; evidence documentation, collection, and preservation; and electricity and electrical systems. To remain current on such significant topics is a boon for course providers but a burden for experts.

The 2014 edition of NFPA 1033 also heightens the standards required of an investigator on such important concepts as the use of the scientific method, avoidance of confirmation bias, the duty of document review when the scene is not available, the duty to interpret fire patterns, and the duty to collect evidence. Let’s take a look at these.

Duty to Avoid Confirmation Bias. The new section on confirmation bias, at 4.3.9 of NFPA 1033, now can be used to more effectively challenge an expert who has too readily made a final hypothesis. The new language in the 2014 edition is noted in italics:

4.3.9 Confirmation Bias. Different hypotheses may be compatible with the same data. When using the scientific method, testing of hypotheses should be designed to disprove the hypothesis (falsification of the hypothesis). Confirmation bias occurs when the investigator instead tries to prove the hypothesis. This can result in failure to consider alternate hypotheses, or prematurely discounting seemingly contradictory data without an appropriate assessment. A hypothesis can be said to be valid only when rigorous testing has failed to disprove the hypothesis.

This gives savvy litigators more fodder against the “premature expert” who formed the final hypothesis in the first five minutes of the initial scene inspection, despite significant further study that confirmed that hypothesis.

Duty to Use Scientific Method More Cautiously. The 2014 NFPA 1033 Annex A amends the scientific method language to match that of NFPA 921. Both now emphasize the need to define the nature of the problem, evaluate the data and hypotheses, and only select a final hypothesis when possible—more fuel for lawyers to test how rigorously the expert fully eliminated all other hypotheses on the fire’s origin and cause.

Heightened Duty of Document Review. When a scene is no longer available, the 2014 NFPA 1033 Section 4.2 now puts a clear burden on the investigator to conduct a comprehensive document review, as shown in the italicized added language below:

4.2 Scene Examination. Duties shall include inspecting and evaluating the fire scene, or evidence of the scene, and/or conducting a comprehensive review of documentation generated during the examination(s) of the scene if the scene is no longer available, so as to determine the area or point of origin, source of ignition, material(s) ignited and act or activity that brought the ignition source and materials together, and to assess the subsequent progression, extinguishment, and containment of the fire.

When an opponent complains that a scene’s spoliation or cleanup makes it impossible to opine on origin or cause, the opponent cannot play ostrich but must seek and carefully review all documentation of the fire scene.

Heightened Duty of Fire Patterns Analysis. Sub-section 4.2.4 of the 2014 NFPA 1033 now requires that “each individual pattern is evaluated with respect to the burning characteristics of the material involved and in context and relationship with all patterns observed and the mechanisms of heat transfer that led to the formation of the pattern.” This change likely will be used to attack an expert’s report that does not evaluate those particular burn patterns important to the expert’s analysis and conclusions.

Heightened Duty of Evidence Collection. Sections 4.4 and 4.4.2 of the 2014 NFPA 1033 expand the investigator’s duties when collecting relevant evidence, emphasizing the need for documentation, collection, and preservation of the evidence, as follows:

4.4 Evidence Collection/Preservation. Duties shall include using proper physical and legal procedures to identify, document, collect, and preserve evidence required within the investigatio...4.4.2 Locate, document, collect, label, package, and store evidence, given standard or special tools and equipment and evidence collection materials, so that it is properly identified, preserved, collected, packaged, and stored for use in testing, legal, or other proceedings and examinations, ensuring cross-contamination and investigator-inflicted damage to evidentiary items is avoided and the chain of custody is established.

This addition is consistent with the overall theme of heightening and clarifying the expert’s duties of education, objectivity, and rigor of analysis.

The low spark of the 2014 NFPA 1033 is now catching fire. Before hiring an expert with whom you are unfamiliar, it is wise to obtain and review a copy of the expert’s curriculum vitae. A failure to document courses and publications covering the 2014 NFPA 1033 and its 16 topics could be a red flag. Better to act on the red flag early than to raise the white flag later.  



John W. Reis is an attorney with CLM Member Firm Smith Moore Leathewood LLP. He can be reached at (704) 384-2692, john.reis@smithmoorelaw.com, www.smithmoorelaw.com.

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