October 11, 2007
In today's legal environment, the selection of a properly qualified expert witness has become a critical step to ensure the success of a case when it enters the litigation phase. The failure to effectively screen and select the right expert in your case can doom your efforts before they even begin. Worse yet, it can have secondary effects which have far more serious implications, notably exposure to a bad faith claim.
More than ever before, insurers must use great care in selecting the experts used in a claim investigation to make certain the job is done right and the results of the expert's analysis will be admissible at the time of trial. In fire claims this is particularly important, since the decision to pursue an arson defense, defend a liability claim or seek a subrogation recovery will hinge upon the findings of the fire expert. Thus, an insurer must approach the decision to hire a particular fire expert as perhaps the most important decision to be made in the handling of the file.
To make the selection of the "right" fire expert, consider these questions in evaluating a prospective candidate:
- What is the full educational background of the investigator?
- What is the entire working-life experience of the investigator?
- What specific technical experience do they have relating to the field of fire investigations?
- What professional licenses do they carry? How long have they been licensed and is the license still current?
- Have they ever had their license suspended or revoked, or been the subject of a professional investigation?
- What professional certification(s) do they have? Who granted the certification(s) and how were they attained?
- What knowledge and training do they have in building construction, HVAC systems, electrical systems and contents to understand how those areas might impact burn patterns or fire spread?
- Do their professional licenses or certifications require continuing educational credits? Have they maintained those requirements?
- What seminars have they attended in their careers? Were they tested seminars? Will they provide copies of their certificates?
- Do they generally recognize and follow the recommended procedures as outlined by NFPA 921?
- Are they fully qualified as a fire investigator under the standards of NFPA 1033 (professional fire investigator qualifications)?
- Do they follow the "scientific method" in reaching a conclusion on a fire cause? Can they explain the process?
- What associations do they belong to? For how long? Date of last meeting? Attendance record? What roles have they played in these associations-as a member or did they serve on any committees or in executive/leadership positions? Are there publications put out by these associations?
- Have they ever published any articles? Will they provide copies of the articles?
- Have they ever been qualified in court previously as a fire expert or as any other kind of expert? When and where? Is there a transcript? Was it civil or criminal court? Did they act for the plaintiff/prosecution or defense?
- Have they ever been rejected by a court when seeking to be qualified as an expert witness? Has a court ever failed to qualify them as an expert or limited the scope of their testimony?
- Have they ever conducted live test-burns to support their fire theories and collect data? Was that data used in any analysis of a fire or in any fire modeling?
- Have they ever done any laboratory work? Who do they use for forensic analysis of evidence?
- Have they ever served as a firefighter or had any training in fire suppression? Do they have an understanding of how fire suppression efforts can impact the determination of the fire cause?
- How many fire scenes have they investigated where they served as the prime fire investigator? What has been their record for determining fire causation? How many arson fires? Electrical? Undetermined?
- How would the investigator handle a situation where they felt subrogation might exist based on initial findings at the scene? Are they aware of spoliation issues?
- Have they ever offered expert testimony from simply reviewing photographs or laboratory exhibits?
- What is their reputation with public authorities? How would they deal with situations where they were kept out of a scene until the authorities had completed their investigation? Has that happened to them and what did they do?
- Does the investigator work alone or for a company? Do they have Errors and Omissions insurance? Who is the insurer and how much coverage do they have? Have they had any claims filed against them and what was the result?
- What methods do they use to eliminate accidental causes in conducting a fire investigation?
- Does the investigator work for a firm that has in-house resources in fire specialty areas such as electrical, chemical, propane etc.?
- Are they knowledgeable on state or local fire ground hazards? Are they familiar with requirements relating to the handling of hazardous materials? Are they certified in hazardous materials investigations?
- Do they have secure management and control of their evidence in storage? Where and how is it stored?
- Have they had any formal training in interviewing techniques and note-taking?
- Can they provide at least three professional references?
- Are they knowledgeable of the use and limitations associated with fire modeling and fire models such as Consolidated Model of Fire and Smoke Transport (CFAST), Nuclear Regulatory Commission (NRC) Spread Sheets, Fire Dynamics Simulator (FDS) and Smokeview?
This is only a sampling of the questions that should be asked and is by no means a complete list of all you need to consider when selecting a fire expert. The specific facts of a case may require further inquiry into other areas and the selection process should be tailored accordingly. But unless the selection process is a deliberate and in-depth inquiry, the right expert may not be hired-and the consequences may be severe.
This article was authored by Glenn Gibson, Joseph Toscano and Guy E. "Sandy" Burnette, Jr. Mr. Gibson is the CEO of The Americas for Crawford and Company International. Mr. Toscano is a fire investigator and consultant for Chilworth Technology. Sandy Burnette is an attorney engaged in private practice with Guy E. Burnette, Jr. P.A. handling fire litigation cases.