If you are an energy company (or represent one) you have either likely had or will have an incident involving a fire or explosion. Liability for this incident will largely hinge upon the following: 1) How was that incident investigated; 2) How evidence was gathered at the scene; 3) Who is included in the investigation; and 4) How the origin and cause of the incident is determined.
The National Fire Protection Association publishes “NFPA 921Guide to Fire and Explosion Investigation” which has been called by one court “the Bible for forensic fire scene investigation” and failure to follow it can mean the difference between winning and losing a case. Courts have repeatedly held that NFPA 921 is an acceptable peer-reviewed authoritative work and generally accepted in the fire investigation community. It has been held to be sufficiently reliable to pass muster under Daubert and failure to follow the principles outlined in NFPA 921 has been found to be the basis to exclude opinions and experts at trial. NFPA 921 represents the national standard for the methodology for investigation by fire science experts. This article will discuss the general procedure and pitfalls for fire and explosion scene investigation.
At the outset, NFPA 921 requires that all interested parties be given reasonable notice of any scene investigation and given the opportunity to participate in the investigation. An interested party can be any party that might be assessed liability for the incident. Written notice to all interested parties should be sent ahead of any scene investigation asking the interested parties to attend and to participate in the gathering of evidence and observation of scene processing to avoid any claim of evidence destruction and spoliation. Failure to provide a potential interested party with notice of the scene investigation could later result in that interested party (as a defendant in a case) claiming evidence spoliation. Spoliation is the intentional or unintentional loss, destruction, or material alteration of an object or document that is evidence or potential evidence in a legal proceeding by one who has the responsibility for its preservation. Remedies for spoliation and the standards applied vary from jurisdiction to jurisdiction but can range from complete case dismissal, expert opinion exclusion, expert witness exclusion, or simply an adverse inference instruction to a jury. Suffice it to say, that none of the remedies are particularly favorable for the party accused of spoliating evidence. Proper scene preservation and notification (even without interested party participation) can prevent a party from claiming spoliation in later litigation.
The backbone of NFPA 921 is that it requires an investigator to use the “scientific method” to determine the origin and cause of a fire or explosion. The scientific method requires the investigator to (1) define the problem; (2) collect data; (3) analyze data; (4) develop a cause hypothesis; (5) test the hypothesis; (6) select the final hypothesis. Each working hypothesis must be tested using a scientific method. Each hypothesis is tested against known scene facts and commonly applied fire science principles. If all of the hypotheses developed, except one, are successfully eliminated, then the cause of the fire is identified. If more than one hypothesis remains, then the cause of the fire is classified as undetermined. However, using “negative corpus” approach to determining a fire cause or origin is an inappropriate use of this process of elimination. In other words, it is inappropriate to use a process of elimination by eliminating all ignition sources found or believed to have been present in the area of origin and then claiming such methodology is proof of an ignition source for which there is no evidence of its existence. Negative corpus is inconsistent with the scientific method as it generates an untestable hypothesis that may result in incorrect determinations of the ignition source or the first fuel ignited. Any hypothesis as to the cause (first fuel, ignition source, and ignition sequence) must be based on facts. Those facts are derived from evidence, observations, calculations, experiments and the laws of science. Speculative information cannot be included in the analysis.
Many times an investigator reaches a conclusion without utilizing the scientific method. Either by confirmation bias, or some other flaw in reasoning, the investigator processes the scene and looks for facts that are only consistent with the hypothesis favorable to the client. When the hypothesis is tested, it must account for inconsistent facts. If it does not, the hypothesis is unreliable and the expert’s opinion is likewise unreliable. Second to spoliation, failure to follow the scientific method is the most common basis to exclude and expert’s work and opinion at trial.
Chapter 17 of NFPA 921 recommends a methodology to follow to determine the area of origin of a fire or explosion. The area of origin is defined as a structure, part of a structure, or general geographic location within a fire scene in which the “point of origin” of a fire or explosion is reasonably believed to be located. The point of origin is defined at the smallest location a fire investigator can define within an area of origin in which a heat source, source of oxygen, and a fuel interacted with each other and a fire or explosion began. Determination of the origin of the fire involves coordination of information derived from one or more of the following: (1) witness information; (2) fire patterns; (3) arc mapping; and (4) fire dynamics. The scientific method must be utilized in determining the area of origin.
Chapter 18 recommends a methodology to follow in determining the cause of a fire. Fire cause determination is a process of identifying the first fuel ignited, the ignition source, the oxidizing agent, and the circumstances that resulted in the fire. Fire cause determination generally follows origin determination. Generally, a fire cause determination can be considered reliable only if the origin has been correctly determined. As before, a scientific method should be utilized in determining the cause of the fire as well.
Counsel representing an entity involved in a fire or explosion incident should be intimately aware and familiar with the principles and pitfalls of NFPA 921. These principles and pitfalls start at the scene management stage and it may be too late to correct mistakes after suit has been filed. Preservation of evidence and formulating a defensible hypothesis begins the moment disaster strikes. Failure to adhere to NFPA 921 principles and methodologies may be the difference between winning and losing a case.