Chris:
The reason you don't see many opinions excluding fire investigators because of the lack of qualifications when using NFPA 1033 as a standard is that the exclusion never actually happens. The case just goes away. Having watched his investigator be thoroughly demolished in a deposition or preliminary hearing (for example the guy is incapable of defining a watt), sponsoring counsel no longer wishes to have this guy as his witness. So criminal cases are dismissed, and civil cases are settled. It really is almost invisible, but I have seen it work in at least a dozen cases.
In my LMU Law Review article, I included the Weisgram case because the Appeals Court found that people were not qualified to render the opinions they did. That was a 1033 exclusion not a 921 exclusion, though admittedly, neither document is cited specifically.
I would also refer to you an article I wrote in 2017 entitled “The invisible but deadly reliability challenge for fire investigators: How NFPA1033 is weeding out unqualified investigators and ruining subrogation cases in the process.” You may find that article here.
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Just because there are not a lot of reported cases of exclusions via 1033, fire investigators should not be complacent on the subject. While he may not suffer the ignominy of an exclusion, his client is unlikely to call him again if the client has had to settle the case for a pittance because the investigator has demonstrated a lack of qualifications.
John Reis had a $5 million subrogation case that he settled for 10 cents on the dollar after his investigator failed a simple quiz in his deposition. He later wrote about it in the Fire and Arson Investigator in the July 2015 issue. He also published a similar article in Claims Magazine, available here: [
www.theclm.org]
Just because an investigator has been qualified previously that does not mean qualification will be automatic. Counsel may argue to the Judge that the expert has never been seriously challenged.
John J. Lentini, CFI
Scientific Fire Analysis
Islamorada, FL
www.firescientist.com
scientific.fire@yahoo.com