Alabama Court Applies NFPA 921 Guide to Expert Testimony
The United States District Court for the Middle District of Alabama recently handed down its Opinion in Ledbetter v. Blair Corp., 2012 WL 2464000, applying the NFPA 921 Guide for Fire and Explosion Investigations to expert testimony in a wrongful death case. The issue came before the court on cross-motions for exclusion of expert testimony. Plaintiff, as the executor of the decedent’s estate, sued Blair Corp., alleging defective design of a robe that decedent was wearing, claiming that the robe contained a design defect in being long-sleeved and loose-fitting, which make it more susceptible to cooking fires.
During the early morning hours of October 30, 2008, a resident at Arbor Place Apartments was awakened by smoke and called 911. First responders on the scene were met by heavy smoke and heat as they entered the decedent’s apartment. The body of Mrs. Thrash was found on the floor between the coffee table, a burned sofa and the television. The 100% cotton, chenille robe and pajamas Mrs. Thrash had been wearing were burned off and she had sustained 70-80% total body surface area burns.
Precisely what Mrs. Thrash was doing moments before the fire is not known. There were no eyewitnesses. However, cold water was running in the kitchen sink and a pot filled with water was on the burner of the gas stove, and the burner was in the “on” position, emitting natural gas but not burning. Plaintiffs theorized that Ms. Thrash was in the kitchen preparing her breakfast when she reached over the gas stove and her robe caught fire from the flames on the burner. They further theorized that Ms. Thrash fled the kitchen, passed through the small dining room and went to the living room, where she fell to the floor and her burning robe ignited the sofa as she passed by it.
Several experts were retained by both sides and became the subject of various motions to exclude their testimony at trial. In particular, Blair Corp. moved for the exclusion of Plaintiff’s expert, Dr. James Monger. Monger has an Associate’s Degree in Fire Science and a Doctorate in Occupational Safety and HealthEngineering. He has several certifications from the Alabama Fire College and Personnel Standards Commission, the Fire Protection Specialist Certification Board and the National Association of Fire Investigators. Monger served as a member of the adjunct faculty of the National Fire Academy in Emmetsburg, MD for 28 years. He is also a former Deputy State Fire Marshal for the State of Alabama. Monger offered three opinions that were challenged by Blair’s Daubert motion: First, related to the origin and cause of the fire; second, the carboxyhemogoblin levels found within Mrs. Thrash; and third, dealt with his opinion that the Blair sleepwear were easily ignited and had rapid flame spread.
Blair Corp. argued that Dr. Monger did not apply the methodology from NFPA 921 reliably to the facts of the case. It further argued that this unreliable application caused Dr. Monger to improperly determine the origin of the fire before he determined the source, by utilizing a negative corpus to define the stove as the ignition source, and then he failed to properly investigate and eliminate other potential causes of the fire. Both parties agreed that NFPA 921 was the accepted methodology to be used in the case and the Court accepted that agreement, but further observed that many courts have recognized NFPA 921 as a “peer-reviewed and generally accepted standard in the fire investigation community,” citing, Tunnell v. Ford Motor Company, 330 F. Supp. 2d 707, 725 (W.D. VA. 2004) and Travelers Prop. & Cas. Corp. v. Gen’l Elec. Co., 150 F. Supp. 2d 360, 366 (D. Conn. 2001).
The court found that Blair had not demonstrated that Dr. Monger misapplied the NFPA 921 Guidelines in such a way to render his methodology unreliable. Monger’s affidavit in support of his opinions was consistent with NFPA 921. In particular, the application of Section 18.1.3, addressing the scenario where there was no physical evidence of an ignition source; Section 18.2.3, addressing a point in area of origin determinations where a single point could not be identified; and Section 18.1.5, addressing the role of ignition sequence in determining fire cause. On this basis, Blair’s motion to exclude Dr. Monger’s testimony with regard to origin and cause was denied. The court also allowed Dr. Monger to opine regarding Ms. Thrash’s carboxyhemogoblin level, but limited his testimony with regard to the videos he reviewed in his opinion with regards to rapid flame progression and the Blair robe.