Truck Ins. Exch. V. MagneTek, Inc., 360 F.3d 1206 (10th Cir. February 25, 2004)
The NLdH National Subrogation Legal Update recently published an article entitled, “Expert Testimony Involving Pyrolysis Precluded Under Daubert Standards: Decision Upheld by Federal Appellate Court,” in which we reviewed the Tenth Circuit’s recent decision in Truck Ins. Exch. v. MagneTek, Inc. After publishing the article, several fire experts communicated their opinions that the court misunderstood the fire science issues involved, and misused certain fire science terms in reaching the decision. After consultation with further experts in the field, we revisit the decision to clarify these points and the practical effect of the decision.
The plaintiff in MagneTek asserted that a fire arose from heat generated by a ceiling light fixture in a restaurant, and that that wood strips near the light fixture ignited as a result of the long term exposure to the heat generated by such fixture. The investigators found that a component of the fixture called the ballast had short-circuited. It contained an over-temperature control that shut off power to the fixture when the ballast reached a temperature of 340 degrees Fahrenheit, and despite the short circuit it was admitted that it continued to function when the ballast reached such temperature.
This fact created a problem for the plaintiff. Wood typically ignites at temperatures near 400 degrees Fahrenheit, or 60 degrees above the shut off point. How could the wood surrounding the ballast ignite from exposure to only 340 degrees Fahrenheit? To prove a fire could occur at the lower temperature, the plaintiff’s expert relied on the well-accepted theory that the ignition temperature of wood is reduced when exposed to heat for an extended period of time. This theory posits that the surface of combustible materials, like the wood furring strips, decompose when exposed to prolonged heat, undergoing a chemical and physical change that ultimately allows the material to ignite at temperatures below their usual ignition point.
Before proceeding, it is beneficial to review certain definitions:
Pyrolysis (general definition): “Decomposition or transformation of a chemical compound caused by heat.” The American Heritage Dictionary of the English Language, Fourth Edition (2000). As used in this generic sense, the term pyrolysis simply means the chemical process effect that heat has on materials.
Pyrolysis (fire cause and origin specific use): “chemical decomposition of a compound into one or more other substances by heat alone; pyrolysis often precedes combustion.” National Fire Protection Association (NFPA) Guide for Fire and Explosion Investigation, 921, § 1.3.96 (2001 Ed.) (emphasis added). This term is often used in the fire cause and origin community as a short hand for the concept that the ignition temperature of a wood or other combustible is lowered when exposed to heat over an extended period of time. This is a well-accepted theory of fire science, but the limits of such concept (extent of lowered ignition temperature, effect of different exposure temperatures, effect of exposures of different time periods) are not well documented or explored.
Pyrophoric Carbon: An unproven and contested fire science theory that long term exposure of a combustible material such as wood causes the creation of self-heating material on its surface, and such self-heating material eventually ignites itself and in turn the rest of the combustible material. While fire scientists and cause and origin investigators have come to widely accept the idea that ignition temperatures will be reduced in the face of long term exposure to heat, this theory involving pyrophoric carbon as the basis for such lowered ignition is not widely accepted.
The Tenth Circuit, applied the Daubert standards to the expert’s testimony on pyrolysis and reduced ignition temperatures and invalidated the proposed expert evidence for this theory as a cause of the fire. Since the plaintiff could not admit the expert evidence the court dismissed the complaint.
In its analysis, the Tenth Circuit failed to make a distinction between the widely accepted theory of reduced ignition temperatures and the contested theory of pyrophoric carbon. Although the court stated in its opinion that it would refer to the reduced ignition temperature theory as “pyrolysis” and the char caused by long term heat exposure as “pyrophoric carbon,” 360 F.3d at 1209 n.2, when discussing the research and scientific community perception of the theories it seemed to accept them as one and the same theory.
Due in part to this confusion, despite the wide acceptance in the fire science community of the long-term, low-temperature ignition theory, the Tenth Circuit determined that such expert testimony would not be "the product of reliable principles and methods." Id. at 1211.
Review of the underlying basis for the court’s rejection shows that plaintiff’s expert advanced both theories for the fire’s origin: general pyrolysis as well as the theory that “pyrophoric carbon” contributed to the ignition. By advancing both theories on the fire’s origin, the expert seemingly cast doubt upon the widely accepted theory. This is demonstrated by the fact that the court looked to three articles for support for the plaintiff’s expert’s theories and they all dealt to some degree with pyrophoric carbon hypotheses, as compared to the more general long-term, low-temperature ignition theory. Id. at 1211-12.
Our previous article on this case did not focus on the court’s apparent confusion over the theories and appreciation of their differing degrees of acceptance in the fire science community. This aspect of the case explains why this court may have rejected this theory while it has been mentioned as a factor in numerous other decisions and cases, as set forth at length in our earlier article.
We repeat here our Practice Tips from the prior article, and provide an additional one based upon this closer review of the decision:
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.
3. (new) To prevent liability adjusters, defense counsel or courts from relying too heavily on this decision as a basis to undercut any subrogation claim in which long-term, low-temperature ignition theory is involved, it is important to distinguish it from the more controversial sub-theory – that such low temperature ignition is caused by pyrophoric carbon involvement. Additionally, to the extent that any theory can be supported with the use of tests, such an approach is highly recommended to further overcome a court’s questioning as to the theory’s reliability.
