The following proposal was submitted to the 921 technical committee and was rejected. Submissions of public comments to the committee on this proposal are encouraged.

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Report on Proposals Log #170

RECOMMENDATION: Edit text as indicated. Move the edited Section 18.6 and following subsections through 18.6.2 to the end of Chapter 4 Methodology.

8.6 Opinions - Level of Confidence. When forming opinions from hypotheses about fires or explosions, the investigator should follow principles for the level of confidence in those opinions. Three general levels of confidence have significance with respect to opinions:

(1) Possible. At this level of confidence, the hypothesis can be demonstrated to be feasible but cannot be declared probable. If two or more hypotheses are 50 percent or less or equally likely, then the level of certainty must be "possible".

(2) Probable. This level of confidence the hypothesis can be demonstrated as to being more likely true than not. At this level of certainty, the likelihood of the hypothesis being true is greater than 50 percent.

(3) Certain. At this level of confidence, the hypothesis can be demonstrated to be true beyond any doubt or reasonable argument to the contrary.

No matter what the level of confidence in an opinion expressed by an investigator (possible, probable, or certain), it has been established by common and case law that any expressed opinion should be held "to a reasonable degree of certainty." [See Jordan v. Bero, [158] W. Va. [28], 210 S.E.2d 618 (1974)]. In fire investigation litigation cases, the courts have frequently required that such opinions be held to a reasonable degree of scientific, engineering, fire investigation, or professional certainty. For example, even if the opinion is that an expressed hypothesis is only possible, that opinion of possibility must itself be held to a reasonable degree of certainty in order to be properly expressed in a litigation case.

18.6.1 Use of the scientific method dictates that any hypothesis formed from an analysis of the data collected in an investigation must stand the challenge of reasonable examination by the investigator testing his or her hypothesis or by the examination of others. (See Chapter 4.) [See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786 (1993).]

18.6.2 Ultimately, the decision as to the level of confidence in data collected in the investigation or any hypothesis drawn from an analysis of the data rests with the investigator. Therefore, it is incumbent upon that investigator to have properly used the scientific method in reaching and proving that hypothesis. The final opinion is only as good as the sufficiency and quality of the data used in reaching that opinion, the propriety of the analysis and hypothesis development, and adequate testing of the hypothesis.

New Section 18.6 Opinions: Edit the current last two sentences of 18.6.2 and renumber as Section 18.6 Opinions.

18.6 Opinions. If the level of confidence in the opinion is only "possible" or "suspected," the cause should be listed as undetermined. Only when the level of confidence is considered probable or certain should a fire cause be classified as accidental, incendiary, or natural.

SUBMITTER SUBSTANTIATION: The current section should apply not only to opinions about cause, but to all opinions formed by investigators during the course of a fire investigation. As such it should be moved to the Methodology Chapter.

The proposed editing and new text more properly and fully explains the levels of confidence which an investigator should hold about all investigative opinions.

COMMITTEE ACTION: Reject

COMMITTEE STATEMENT: Although the committee believes that the current text needs modification, the committee does not believe this proposal resolves the issue.

Pat Kennedy, CFEI, CFPS, MIFireE
Fire and Explosion Analyst
Sarasota, Florida
[www.kennedy-fire.com]