EXPERT TESTIMONY INVOLVING PYROLYSIS PRECLUDED UNDER DAUBERT STANDARDS:
DECISION UPHELD BY FEDERAL APPELLATE COURT

Truck Ins. Exch. v. MagneTek, Inc., 2004 WL 348936 (10^th Cir., February 25, 2004)

In a decision that could have far-reaching effects within the property subrogation community, not to mention the fire cause and origin investigation industry, the United States Court of Appeals for the Tenth Circuit recently upheld a federal trial court’s determination that the theory of fire science known as “pyrolysis” does not pass muster under a Daubert analysis.  As a result, the appellate court found that it was proper for the trial court to bar the subrogating carrier plaintiff’s expert from testifying about the pyrolysis concept, which resulted in his entire testimony being disallowed.

The underlying case was a typical property subrogation matter that arose from a fire at a Colorado restaurant that was insured by the plaintiff, Truck Insurance Exchange.  Local fire officials and plaintiff’s fire cause and origin investigator opined that the fire originated in a ceiling-floor void.  A fluorescent light fixture in the ceiling below the void was the only apparent heat source in the origin area .  With physical evidence suggesting that the fixture’s ballast short-circuited, the investigation focused on the ballast (a component designed to regulate heat generated by the light). 

Testing led to the determination that the ballast’s over-temperature control was still functioning after the fire, and would have shut off power to the light fixture upon the ballast’s temperature reaching approximately 340º F, and leveling off at over 300º F.  Plaintiff retained an expert, a physicist, to explain how the ballast might have caused the nearby wood framing to ignite at such a low temperature, i.e. given that wood has an ignition temperature of approximately 400º F.  The expert opined that overheating over an extended period of time such as the ballast experienced was sufficient to have ignited the nearby wood due to the effect of pyrolysis.

“Pyrolysis” is defined by the National Fire Protection Association (NFPA) as “[t]he chemical decomposition of a compound into one or more other substances by heat alone; pyrolysis often precedes combustion.”  NFPA Guide for Fire and Explosion Investigation, 921, § 1.3.96 (2001 Ed.).  Essentially, this fire science concept holds that a combustible material (such as the wood framing and furring strips adjacent to the fixture in this case), when exposed to heat, undergoes a chemical and physical change that ultimately allows the material to combust at temperatures below its usual ignition point.  Pyrolysis has been cited as an explanation for fire causation in state and federal cases around the country for the last 30 years or more, and certainly was not a novel theory as raised in this case.[1]

Despite pyrolysis’s previous use in, and passive acceptance by, many courts in the past, the manufacturer defendant in this case took an aggressive stance and filed a motion to preclude plaintiff’s expert from testifying that the subject fire was caused through pyrolysis resulting from the overheating ballast.  Defendant’s motion further requested summary judgment in its favor, as the plaintiff had presented no other theory of causation.  The trial court granted defendant’s motion, finding that plaintiff’s expert’s conclusion as to the cause of the fire – specifically the pyrolysis component - was not based on sufficiently reliable scientific theory, as is required under Daubert v. Merrill Dow Pharmaceuticals, Inc.,[2] and other subsequent cases.  The court further determined that without reliable expert testimony on the issue of causation, defendant was entitled to summary judgment. 

Plaintiff filed an appeal, arguing that pyrolysis, as a fire science concept, did indeed meet the Daubert admissibility requirements.  In its opinion, the appeals court noted at the outset that analysis under Daubert is intended to ensure that evidence is both “reliable” and “relevant.”  After careful review of the trial-level testimony (and other evidence) presented by the plaintiff, the court held that the trial court had not abused its discretion in its role as “gatekeeper” for reliable and acceptable expert testimony, so the defendant’s summary judgment stands.

Given that this unexpected result could lead to limitations in similar expert testimony in the future, a careful review of the evidence and arguments before the trail court is worthwhile.  As noted above, plaintiff’s highly qualified expert in pyrolysis opined that heat from the lamp’s ballast was sufficient to cause wood ignition in the void space through the formation of “pyrophoric carbon” or “activated carbon.”

To support the use of the pyrolysis concept, plaintiff submitted three published articles, but the trial court found that all three actually cast doubt upon the general scientific acceptance of, the methodology used, as well as the adequacy of experimentation demonstrating that pyrolysis is an acceptable theory of causation.  One of the articles was actually entitled, Pyrophoric Carbon: the Jury is Still Out.[3]  Moreover, plaintiff’s physicist expert testified at his own deposition that in order to understand how the wood could ignite at lower temperatures, “you would have to have a good theory of pyrophoric carbon and formation …, and there isn’t one.”

In the end, based upon the perceived weakness of the supporting articles and the expert’s own testimony, the trial court concluded that pyrolysis, as an element of fire causation theory, had not been subjected to sufficient testing, and that without such testing there were few reliable principles about it to determine when pyrolysis might occur.  For its part, the appellate court noted that the insufficient testing, and the lack of evidence showing how the pyrolysis theory could be tested (or even such theory’s applicable rate of error), as well as the perceived uncertainty about the theory in the scientific community, all supported the trial court’s decision to preclude such testimony.[4]

The decision in this case can be viewed in a few different ways.  First, it must be placed in its proper factual and legal context.  Usually, the true nature and extent of the attacking heat source in fire litigation is not known, thus pyrolysis simply acts as an explanation or element of the causation story. The plaintiff’s assertions in this particular case, however, were very specific (that heat not exceeding 340º F over an uncertain period of time had caused wood, a material with a normal combustion temperature of 400º F, to ignite).  That is, the specific nature of these allegations made it easier to subject the testimony to a Daubert reliability attack than the more general manner in which pyrolysis is customarily employed in fire litigation.

Of course, some might want to view this decision from a 20/20 hindsight approach, and attribute the result to poor lawyering or use of weak technical support.  However, though there are innumerable articles on the subject in general, and pyrolysis as a concept is widely accepted by physicists and fire science engineers,the specific nature of its effects does not appear to have been fully tested and studied.   Therefore, retrospective criticism of the lawyer and expert doesn’t aid one’s full understanding of how this result came about.

The overarching lesson from this decision is that another court might view this court’s analysis as precluding the mention and concept of pyrolysis as entirely unreliable, and therefore preclude any mention of it by fire cause and origin experts despite the fact that it is indeed a widely accepted principle and most fire investigation experts should be permitted to speak of it generally when discussing their opinions.  This decision also highlights the sometimes “soft science” aspect of fire cause and origin investigation, as performed by many experts in the field, and thus might act as an additional point of reference for future criticism of otherwise accepted fire investigation techniques. 

Practice Tips:

1.   Although the fire investigation industry is trying to codify and clarify investigation techniques in a more scientific manner under the NFPA 921 Guide for Fire and Explosion Investigation, much of fire cause and origin investigation remains part “art” and part “science.”  As a result, not only will there be instances of aggressive defendants attacking subrogating carriers’ expert opinions from a scientific deficiency standpoint, such defendants might find sympathetic ears from skeptical judges.  Hence, this weakness, inherent in the opinion of fire investigation experts relying on pyrolysis, should always be taken into account when evaluating the merits and value of a particular matter.

2.   To avoid a negative result similar to that suffered in this case, recovery professionals should constantly cross-examine their own experts as to the bases of their opinions, and as to whether their supporting theories could be better demonstrated by tests, or at least reference to documented studies.  Caution should be employed when expert opinions cannot be independently tested or confirmed through prior studies.