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Expert Who Admittedly Failed to Follow 921 Employed Reliable Methodology

An appliance manufacturer challenged the admissibility of an origin and cause expert’s testimony arguing that (1) the origin and cause expert’s failure to employ NFPA 921 automatically subjects the opinion to exclusion and (2) his methodology was unreliable.  The Eighth Circuit Court of Appeals used this opportunity to summarize its 921 caselaw.  “NFPA 921 qualifies as "a reliable method endorsed by a professional organization, but we have not held NFPA 921 is the only reliable way to investigate a fire. Our NFPA 921 cases stand for the simple proposition an expert who purports to follow NFPA 921 must apply its contents reliably.”  (Citations omitted). 

An expert’s “testimony can only be excluded on NFPA 921 grounds if he purported to follow NFPA 921 but did not reliably apply it to the remains of the fire.”   The expert admittedly did not follow NFPA 921.  He testified NFPA 921 cannot be used when a fire leaves an insufficient burn pattern on the structure that sustained the fire. He did not employ NFPA 921 because, given the extent of the destruction, he believed he could not apply the guideline. Because the expert “did not attempt to employ NFPA 921 in his investigation, and therefore, his testimony may not be excluded for failure to reliably apply its contents.” 

Defendant argued that the expert’s methodology was not scientifically reliable because the expert “simply eyeballed three appliances he identified in the debris and concluded the most severely burned was the area of origin.”  The court held that the expert’s methodology was sufficient and that Defendant’s arguments went to the weight of the testimony, not its admissibility.  Russell v. Whirlpool, No. 12-1451, was issued on December 17, 2012. 

© Copyright 2020 Armstrong Teasdale LLP. All rights reserved National Law Review, Volume II, Number 354


About this Author

Gerald A. King, Explosion, fire, Electrocution litigation, attorney, Armstrong

Jerry King practices in all aspects of explosion, fire, and electrocution litigation, including products liability, class actions, trials, and appeals. As a Certified Fire and Explosion Investigator (CFEI), as certified by the National Certification Board of the National Association of Fire Investigators and recognized by National Fire Protection Association 921 Guide for Fire and Explosion Investigations, Jerry’s knowledge and experience allows him to provide effective and efficient solutions to resolve even the most complex case. An authority on these issues, he is often sought after as...