Fire/Arson Investigations : Fire/Arson Investigations
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Re: National Fire Protection Association 921 Scope
Posted by: J L Mazerat (IP Logged)
Date: April 11, 2022 11:46AM
I do not think this is something that is a little too late. I think this is another part of the process of understanding what the document is and is not. I do not think the quality of the document has been challenged to the point where NFPA has been required to testify as to its quality and intendent use. This may be a preempted step by NFPA to deflect challenges where they will be required to come to court to defend the document. I cannot see NFPA testifying to the document being any more than what they say in the document.
As it took time for attorneys to learn how to use the document to challenge investigators, now attorneys are using the document’s wording to inform the courts the problems with the document.
If one looks close at the suggested wording change one will see it is not coming from outside of the committee. These suggestions are coming from the Technical Committee (Tc On Fia-Aaa). I do not think they are trying to make the document look more favorable to one side or the other. What it appears they are trying to do is clear up any misunderstanding about the document.
I am not saying some courts have not cited NFPA 921 for different reasons, but it is important to know that this acceptance has not been uniform. As an example of this is the following:
West Virginia courts have failed to recognize the National Fire Protection Association’s (“NFPA”) guideline 921—a standard requiring the application of the scientific method to fire investigation and debunking many flawed techniques—and employ the Daubert factors to determine whether expert testimony in arson cases is admissible. 21 The Supreme Court of Appeals of West Virginia’s argument—that it will not follow NFPA 921 until the legislature enacts a law recognizing the guidelines—is nothing more than smoke and mirrors. 22 Although NFPA 921 guidelines are classified as “marginal changes,” the guidelines are making actual leaps to overcome the hurdles in innocence claims involving arson. 23 To correct these pitfalls, the Supreme Court of Appeals of West Virginia—not the legislature—should adopt NFPA 921 as the standard of care, even in the absence of the legislature’s failure to “codify science.” Doing so will provide a foundation for the progress and reliability of fire science in West Virginia.
There are those who state that NFPA 921 is regarded as the standard of care by the fire and explosion investigation community. I have not found cases where it has been recognized by an organization that NFPA 921 as the standard of care for fire investigators. I cannot find where NFPA has testified that it is a standard of care. NFPA states that NFPA 921 is not a standard. John posted the IAAI opinion on NFPA 921. This is one of the larges fire investigation organizations. It has chosen not to say that NFPA 921 is the standard of care for the industry. The only organization to state they believe NFPA 921 is the professional standard of care for fire and explosion investigation is the National Association of Fire Investigators.
It is important to use the proper definition as to the standard of care to properly understand its meaning in the conversation. I believe this is where there is a misunderstanding. There is a difference between a standard of care and a benchmark. Standard of care address the actions of a person. A benchmark is a baseline for the comparison of like items. It is used as a base or foundation in which to measure.
Benchmarking is a process of measuring the performance of a company's products, services, or processes against those of another business considered to be the best in the industry. Where NFPA 921 is the most recognized document, for one to say it is the best is an opinion of the person. The fact that it is not supported by the owner and publisher of the document could call into question its designation as being the best over all other document, and books published on the subject.
It is recognized that the standard of care relates in the legal profession in negligence cases. In those types of cases, the forensic expert must explain to a trier of fact what a person should have done, or not done, in a specific set of circumstances and whether that person’s conduct constitutes a breach of duty. The parameters of the duty are delineated by the standard of care. Many facets of the standard of care have been well explored in the literature, but gaps remain in a complete understanding of this concept. When one analyzes the locality rule and consider local, state, and national standards of care. The locality rule requires individuals to provide the same degree of skill and care that is required by a person practicing in the same or similar community. This rule remains alive in some jurisdictions in the United States. In these cases, documents are used that are proposed to be what steps should have been followed by the person. Basically, the document is a benchmark to measure a person’s actual work against other’s opinion as to how it should be conducted.
I believe where the courts are using NFPA 921 deals with the methodology section. It is the methodology of the investigator that is being challenged by Daubert and Rule 702. The question is, weather the methodology being used conforms to an accepted methodology.
Jim Mazerat
Forensic Investigations Group
As it took time for attorneys to learn how to use the document to challenge investigators, now attorneys are using the document’s wording to inform the courts the problems with the document.
If one looks close at the suggested wording change one will see it is not coming from outside of the committee. These suggestions are coming from the Technical Committee (Tc On Fia-Aaa). I do not think they are trying to make the document look more favorable to one side or the other. What it appears they are trying to do is clear up any misunderstanding about the document.
I am not saying some courts have not cited NFPA 921 for different reasons, but it is important to know that this acceptance has not been uniform. As an example of this is the following:
West Virginia courts have failed to recognize the National Fire Protection Association’s (“NFPA”) guideline 921—a standard requiring the application of the scientific method to fire investigation and debunking many flawed techniques—and employ the Daubert factors to determine whether expert testimony in arson cases is admissible. 21 The Supreme Court of Appeals of West Virginia’s argument—that it will not follow NFPA 921 until the legislature enacts a law recognizing the guidelines—is nothing more than smoke and mirrors. 22 Although NFPA 921 guidelines are classified as “marginal changes,” the guidelines are making actual leaps to overcome the hurdles in innocence claims involving arson. 23 To correct these pitfalls, the Supreme Court of Appeals of West Virginia—not the legislature—should adopt NFPA 921 as the standard of care, even in the absence of the legislature’s failure to “codify science.” Doing so will provide a foundation for the progress and reliability of fire science in West Virginia.
There are those who state that NFPA 921 is regarded as the standard of care by the fire and explosion investigation community. I have not found cases where it has been recognized by an organization that NFPA 921 as the standard of care for fire investigators. I cannot find where NFPA has testified that it is a standard of care. NFPA states that NFPA 921 is not a standard. John posted the IAAI opinion on NFPA 921. This is one of the larges fire investigation organizations. It has chosen not to say that NFPA 921 is the standard of care for the industry. The only organization to state they believe NFPA 921 is the professional standard of care for fire and explosion investigation is the National Association of Fire Investigators.
It is important to use the proper definition as to the standard of care to properly understand its meaning in the conversation. I believe this is where there is a misunderstanding. There is a difference between a standard of care and a benchmark. Standard of care address the actions of a person. A benchmark is a baseline for the comparison of like items. It is used as a base or foundation in which to measure.
Benchmarking is a process of measuring the performance of a company's products, services, or processes against those of another business considered to be the best in the industry. Where NFPA 921 is the most recognized document, for one to say it is the best is an opinion of the person. The fact that it is not supported by the owner and publisher of the document could call into question its designation as being the best over all other document, and books published on the subject.
It is recognized that the standard of care relates in the legal profession in negligence cases. In those types of cases, the forensic expert must explain to a trier of fact what a person should have done, or not done, in a specific set of circumstances and whether that person’s conduct constitutes a breach of duty. The parameters of the duty are delineated by the standard of care. Many facets of the standard of care have been well explored in the literature, but gaps remain in a complete understanding of this concept. When one analyzes the locality rule and consider local, state, and national standards of care. The locality rule requires individuals to provide the same degree of skill and care that is required by a person practicing in the same or similar community. This rule remains alive in some jurisdictions in the United States. In these cases, documents are used that are proposed to be what steps should have been followed by the person. Basically, the document is a benchmark to measure a person’s actual work against other’s opinion as to how it should be conducted.
I believe where the courts are using NFPA 921 deals with the methodology section. It is the methodology of the investigator that is being challenged by Daubert and Rule 702. The question is, weather the methodology being used conforms to an accepted methodology.
Jim Mazerat
Forensic Investigations Group
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