Court Grants Motion to Exclude Insurer's Computer Fire Modeling Expert's Testimony

PROPERTY – HOMEOWNERS – FIRE INVESTIGATION – COMPUTER FIRE MODELING – ADMISSIBILITY OF EXPERT TESTIMONY – FRYE HEARING
Santos v. State Farm Fire & Cas. Co.
(Sup. Ct., Nassau Co., decided 6/28/2010)


Plaintiff moved pursuant to Frye v. United States, 293 F. 1013 (DC Cir. Ct. Apps.1923) to exclude the testimony of State Farm's defense computer fire modeling expert witness, Dr. Jozef Urbas.  At the time the motion was made, plaintiff contended that Dr. Urbas utilized the computer fire modeling to determine the origin and cause of a fire that occurred at plaintiff's premises in Bethpage, New York, on January 20, 2006. The court ordered a Frye Hearing.

Pursuant to the Frye test, expert testimony based on scientific principles or procedures is admissible only after a principle or procedure has gained general acceptance in its specified field (People v Wesley, 83 NY2d 417, 422 [1994]). A particular procedure need not be unanimously indorsed by the scientific community but must be generally accepted as reliable (Id. at 423). The Frye test emphasizes "'counting scientists' votes," rather than verifying the soundness of a scientific conclusion (Parker v Mobil Oil Corp., 7 NY3d 434, 447 [2006]).

In 1993 the United States Supreme Court decided Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 US 579 which, in federal courts, displaced the Frye general acceptance standard based upon the Federal Rules of Evidence. The Frye general acceptance test, however, continues to be the standard for determining reliability and admissibility of expert testimony in New York (see People v. Wesley, 83 NY2d at 433).

The burden of proof is on the party challenging the evidence to make a prima facie showing that it is a novel theory which is not generally accepted (Matter of Seventh Jud. Dist. Asbestos Litig., 9 Misc 3d 306, 311-312 [Sup. Ct. Wayne Co. 2005]). The burden then shifts to the proponent of the evidence to show by a fair preponderance of the credible evidence that there is sufficient general acceptance of its reliability (Id.).

Eugene J. West, retired investigator for the New York City Bureau of Fire Investigation (the Fire Marshal's Office), testified for the plaintiff that in his capacity as a fire investigator he would get many requests to utilize computer fire modeling but would decline to use it as part of the official investigation, stating that: "We can only speculate as to what was the composition or the exact construction of a room or the type of materials that were used, especially if those things are no longer available to us."

Mr. West stated that computer fire modeling was never generally accepted as an investigative tool by the New York City Fire Department.  It was his opinion that computer fire modeling is not generally accepted in the fire investigative community and cannot be used to determine the cause of a fire.  Although computer fire modeling was used in the World Trade Center investigation, it was used for illustrative purposes.  Mr. West explained that there is a caveat by the National Fire Protection Association ("NFPA") that the program is essentially as good as the information put into it.

In support of the introduction of the computer fire modeling evidence, Dr. Urbas testified the NFPA endorses the use of fire modeling in fire dynamics in the use of fire investigation.  Dr Urbas further testified that the underlying equations and laws of physics have been generally accepted in the fire science community and that they have been generally accepted as reliable in computer fire modeling.

State Farm's counsel explained that Dr. Urbas was not coming into court to state the cause and origin of the fire but rather to apply the computer dynamics to see how the fire would spread.  Dr. Urbas testified that the results of the fire modeling established that there was a time line that matched a particular origin of the fire, that the damage in the building corresponded to the results of the modeling and that the determination of fire dynamics in that particular theory [the time line] is generally accepted for that purpose.  The computer fire modeling essentially verified the hypothesis as to the ignition source or cause of the fire.  Dr. Urbas "never said it's accepted for determining the origin of the fire" and acknowledged that although "[i]t can help determining the cause", " it cannot be the sole method of determining the cause" of a fire.

After hearing the testimony of both parties' experts, Nassau County Supreme Court Justice Thomas Phelan granted plaintiff's motion to exclude the computer fire modeling testimony:

The NFPA Users Manual for 921 states: "To conduct valid modeling and testing it is important that the investigator gather data that is as accurate and complete as possible."  Dr. Urbas agreed that the concept "garbage-in-garbage-out" was applicable (p. 73).  Here, the input was based upon regulatory agency tables [for furniture, floors, walls, etc.]*, measurements taken by Dr. Urbas, his inspection of the damage and his reliance upon information received from fire investigators from the insurance company.  Dr. Urbas never spoke with the homeowner, the Nassau County fire officials or local firefighters.  Dr. Urbas testified that he was unaware that there were paint thinners and solvents in the area where the fire started and that such knowledge would have thrown off the entire calculation (p. 75).

Fire modeling carries with it a 15 to 20 percent margin for error assuming all conditions are correct but could be as high as 80 percent depending upon the real conditions (pp. 76-77).  Dr. Urbas acknowledged that there could be a difference between the material represented in a table and the actual material at the fire scene (p. 83). "If the input in the model is correct then the output is correct" (p. 96).  Dr. Urbas' testimony indicated that incorrect input could lead to inaccurate results.

Bearing in mind that the court's role as gatekeeper is "counting scientists," the court finds that defendant did not present sufficient evidence to establish that there is a consensus in the fire investigation community that computer fire modeling is generally accepted as reliable. "The long-recognized rule of Frye v. United States (supra) is that expert testimony based on scientific procedures is admissible but only after a principle or procedure has gained general acceptance' in its specified field" (People v. Wesley, 83 NY2d at 422).  Here the specified field is fire investigation. The issue before the trier of fact in this particular lawsuit involves when and how the fire started.  Defendant failed to meet its burden of proving that its expert's use of computer fire modeling was generally accepted in the fire investigation community (Cumberbatch v. Blanchette, 35 AD3d 341, 342 [2d Dept. 2006]). Although defendant's expert may support a case for the acceptance of computer fire modeling in the regulatory/design community, it does not support a conclusion that it is generally accepted in the fire investigation community. 

It is important to understand that Justice Phelan did not hold that computer fire modeling is scientifically unreliable and never admissible in a civil arson case; he merely held that in this particular case, State Farm did not submit sufficient evidence to convince him that computer fire modeling was generally accepted in the fire investigation community.

And as late as the mid-nineteenth century, some still believed that the earth was flat.

Knives Up Their Noses -- Court Precludes Expert Testimony on Multiple Chemical Sensitivity Claims Against Homeowners Insurer

PROPERTY – HOMEOWNERS – PERSONAL INJURY CLAIM FROM POST-FIRE REMEDIATION WORK – MULTIPLE CHEMICAL SENSITIVITY – FRYE HEARING
O'Brien v. Citizens Ins. Co. of Am.
(Sup. Ct., Suffolk Co., decided 10/27/2008)

It's not that I'm insensitive to Idiopathic Environmental Intolerance a/k/a Multiple Chemical Sensitivity. It's just that when reading this decision, and its report of the plaintiffs' complaints of "knives shooting up [their] nose[s]", I couldn't help but think of 8th grade lunch recess at Immaculate Conception School in Stony Point, New York, and the excited angst of sinning venially, while listening to my buddy Jay Young's bootleg tape recording of Cheech and Chong's "Up His Nose" skit. Oh, if Sister Scholastica (not kidding) had caught us listening to that stuff, I don't think I would have gotten that CYO award at graduation later that year. How the social mores have changed from then to now.

We digress. Plaintiffs commenced this action for personal injury and property damage against their homeowners insurer and the remediation company it had retained to clean the plaintiffs' home after a small clothes dryer fire, alleging that the remediation work had been negligently performed. The remediation company cleaned walls, ceilings, and other items that could retain smoke odor. The cleaning process lasted two to three days utilizing various degreasers, furniture polish and window cleaners. Immediately following the clean-up, the plaintiffs walked through their home and complained of an irritating smell. Two ozone generators were brought in and run for approximately four days to alleviate the odor.

Mrs. O'Brien again entered the home after the four-day period and complained that the smell was "different and worse." She described feeling dizzy and complained "knives were shooting up my nose." Mr. O'Brien felt the same "knives" and was nauseous. After a third time through, both Mr. and Mrs. O'Brien felt the "knives in the nose again, headaches, nausea, difficulty breathing." Mr. O'Brien then allegedly went out on the front lawn and vomited. Plaintiffs subsequently claimed in this action that defendants' negligent conduct had caused them to suffer from a condition known as Multiple Chemical Sensitivity (MCS).

Suffolk County Supreme Court Justice Peter Mayer granted defendants' request for and conducted a Frye hearing, in accordance with Frye v United States, 54 App DC 46, 293 F 1013 [1923], to determine the admissibility of expert testimony to support the plaintiffs' claims that they suffered from MCS. After that hearing, at which scientific literature was introduced and doctors for both the planitiffs and defendants testified, Justice Mayer ruled that plaintiffs would not be allowed to offer expert testimony at trial in support of their MCS claims:

In New York, evidence based on novel scientific theories or techniques is considered admissible only upon a showing of general acceptance within the relevant scientific community (People v Carrieri, 49 AD3d 660, 854 NYS2d 427 [2d Dept 2008]; Parker v Mobil Oil Corp., 7 NY3d 434, 824 NYS2d 584 [2006]; Del Maestro v Grecco, 16 AD3d 364, 791 NYS2d 139 [2d Dept 2005]). To prove causation under New York law, a plaintiff may refer to court opinions, texts, laboratory standards or scholarly articles in an effort to determine whether a particular concept has been generally accepted by the relevant scientific community and, absent such materials, the court may take testimony of expert witnesses (People v Wesley, 83 NY2d 417, 611 NYS2d 97 [1994]; see also, Demeyer v Advantage Auto, 9 Misc 3d 306, 797 NYS2d 743 [Sup Ct, Wayne County 2005]).

Once a party has made a prima facie showing that the proposed expert opinion is not reliable or not generally accepted, the burden shifts to the proponent to demonstrate the general reliability and acceptance in the relevant scientific community (Zaslowsky v J.M. Dennis Constr. Co. Corp., 26 AD3d 372, 810 NYS2d 484 [2d Dept 2006]; Lewin v County of Suffolk, 18 AD3d 621, 795 NYS2d 659 [2d Dept 2005]).

Under the Frye standard, the burden of proving general acceptance rests upon the party offering disputed expert testimony (Cumberbatch v Blanchette, 35 AD3d 341, 825 NYS2d 744 [2d Dept 2006]; Zito v Zabarsky, 28 AD3d 42, 812 NYS2d 535 [2d Dept 2006]). Absent proof in the form of controlled studies, clinical data, medical literature, or peer review indicating the expert's conclusions are generally accepted in the relevant scientific community, the opinions/conclusions must be omitted (see, Cumberpatch v Blanchette, supra ). Accordingly, courts are charged with the responsibility to ensure that testimony meets minimum standards of reliability (see, e.g., Zito v Zabarsky, supra ; Pauling v Orenreich Medical Group, 14 AD3d 357, 787 NYS2d 311 [1st Dept 1995]).

* * * * *

In the affidavit and during the Frye Hearing plaintiffs' expert placed before the Court, the National Institute of Environmental Health Sciences, a Division of the National Institute of Health, July 2006 article on MCS. From this publication we learn that the proper name for MCS is Idiopathic Environmental Intolerance (hereinafter IEI) which is defined as a "chronic, recurring disease caused by a person's inability to tolerate an environmental chemical or class of foreign chemicals. IEI thus represents a complex gene-environment interaction, the true cause of which is unknown."

* * * * *

The publication relied on by plaintiff, while reciting six criteria to show a patient has IEI, clearly states that its general causation is unknown and that further specific studies such as those outlined above would aid in considering this question. The Court has no evidence as to the conclusions of these studies, or, indeed, if they were ever conducted. The publication also suggests that discovery of the etiology is made more difficult "because the syndrome is similar to certain allergic conditions and to certain organ-system responses caused by emotional disturbances" and that "disagreement among physicians and medical researchers as to what IEI really is has made research funding difficult." Differing scientists pose the question as to whether this is really a syndrome, a mental problem, or a simple allergy.

* * * * *

The plaintiffs' expert offers no proof that connects any of the substances that were known to be present as having the chemical properties that could generally cause MCS or IEI. And although not necessarily required, the plaintiffs have provided no information regarding the amount of any of the above substances required to cause the O'Briens' illness and have failed to quantify the exposures of any of the plaintiffs (see, Parker v Mobil Oil Corp., 7 NY3d 434, 824 NYS2d 584 [2006]).

* * * * *

There is nothing in the record that identifies a diagnostic test for MCS (IEI), nor are there any studies submitted which identify a mechanism or cause for MCS (IEI). Dr. Boris acknowledged in his testimony that there is indeed general disagreement among researchers and physicians about the etiology of MCS (IEI). There is no evidence submitted to establish a causal relationship between any of the chemicals that are known to have been utilized during the remediation process at the O'Brien home and MCS (IEI). The Court concludes therefore that there is insufficient evidence to show general causation.

Federal and State Courts have consistently determined that the cause or causes of MCS (IEI) cannot be reliably established by scientific proof (see, e.g., Oppenheimer v United Charities of NY, 266 AD2d 116, 698 NYS2d 144 [1st Dept 1999]; Frank v State of New York, 972 F Supp 130 [ND NY 1997]). The Court finds the defendants have made a prima facie showing that the proposed expert opinion is not reliable. This finding is based on the documentary and testimonial evidence. The Court further finds that the plaintiffs have not met their burden as the proponent of evidence to demonstrate the general reliability and acceptance of the proposed testimony (Cumberbatch v Blanchette, 35 AD3d 341, 825 NYS2d 744 [2d Dept 2006]).

There is also no proof beyond the conclusion in the affidavit of the expert as to specific causation. Based on the foregoing, the plaintiffs are precluded from offering expert testimony at trial in support of the theory of MCS.

Not really a coverage case, but one worth noting for insurers that retain companies to assist their insureds in remediating covered losses. And thanks C&C for the chuckle these 34 years later.

P.S. -- Holy crap. After posting this random memory this morning, I discovered that the boys are back touring together and will be 20 minutes away in Niagara Falls, Canada, this Thursday night. Sold out show. Drat.