Opinion
CR. 99-30095.
December 7, 1999.
John J. Ulrich, Assistant United States Attorney, Pierre, SD, Attorney for Plaintiff.
Anita L. Fuoss, Murdo, SD, Attorney for Defendant.
MEMORANDUM OPINION AND ORDER
BACKGROUND
Lawrence R. Black Wolf, Jr., ("defendant") filed a Motion in Limine to exclude the trial testimony of the government's expert, Daniel Carlson, on the ground that Carlson's testimony did not meet the standards for admissibility found in Fed.R.Evid. 702, 703, 404(b) and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Docket No. 12. The government resisted the Motion, and this Court heard testimony on the Motion and received three exhibits into evidence at a hearing held on Wednesday, November 10, 1999. For the reasons stated below, the Court denies the Motion.
Defendant's Motion is styled "Motion to Suppress and Motion In Limine For Determination of Admissibility of Evidence", Docket No. 12. Defense counsel, however, admitted at the evidentiary hearing held on the Motion that the same was really one in limine and not one to suppress. H. Tr. 56.
According to the indictment, defendant, an Indian, wilfully and maliciously set fire to and burned the residence of Edward Castaway, on or about April 9, 1999, in the Upper Swift Bear Community near White River, South Dakota, located within the exterior boundaries of the Rosebud Indian Reservation. Docket No. 1. Ben Huber, a veteran fireman of 50 years and the Chief of the White River Fire Department for 30 years, was at the scene and helped suppress the fire. After the fire had been put out, Huber became suspicious of how it was started and contacted Carlson, who personally inspected the Castaway residence (or what was left of it) and prepared a report as to the cause and origin of the fire. It is this report, together the conclusions derived therefrom, that defendant seeks to prohibit the government from offering and/or referring to at trial.
Carlson is the South Dakota State Fire Marshal and has held this position since January, 1995. Prior to his appointment as State Fire Marshal, Carlson was the lead investigator and Chief Deputy Sheriff for the Davison County Sheriff's office for seven years, a full-time firefighter in Mitchell, South Dakota, owned a private investigation business there for ten years and in that capacity, investigated numerous fires for the Mitchell Fire Department. He has his bachelor's degree and several master's degree hours and is a member of several firefighting professional associations/organizations. Over his 25 years as a fireman, Carlson has attended numerous training seminars conducted by instructors from the National Fire Academy, including courses relating to the origin of fires and arson investigation. He and his office are charged with the training and certification of over eight thousand firefighters within the State, and himself has has been called upon to investigate fires and fire scenes in excess of one hundred times, more than half of which involved suspected arson.
Carlson personally conducted an investigation of the fire scene on April 19, 1999, some ten days after the fire occurred. Upon arriving at the scene, Carlson observed the remains of a Sioux 400 home that had been almost totally destroyed by fire. He conducted a walk-around, photographed those portions of the scene he thought significant and obtained information from Huber, Mellette County Sheriff Tom Raymond and Castaway. During his investigation, he noted that there was substantial charring in the floor joists directly underneath a crawl space hole located in the northwest corner of the back bedroom of the house. Based on information provided to him by Huber and Castaway, and a comparison done of the crawl space located in the front portion of the house, Carlson opined that the fire originated in the back bedroom crawl space and was caused by the use of an accelerant. In doing so, he eliminated natural and accidental causes and concluded that the fire was incendiary.
Carlson would have liked to have conducted his cause and origin investigation sooner but had not been contacted about the fire until the morning of April 19th. H.Tr. 26-27.
Defendant urges the Court to exclude this Court's testimony for several reasons. He argues:
1. That Carlson did not take any samples of the building materials or seek to have such materials analyzed in a laboratory;
2. That his theory of the cause and origin of the fire has not been subject to peer review generally accepted as accurate and reliable in fire evaluations; and
3. That by implication, he used no scientific methods or procedures to reach his opinions and conclusions and that the same are nothing more than subjective speculation.
The government, on the other hand, asserts that Carlson's extensive background, training and experience makes him qualified to testify as an expert witness as to the cause and origin of the fire.
DISCUSSION
A. Legal Framework — Reliability and Relevance
The admissibility of expert testimony under Fed.R.Evid. 702 — whether based on "scientific," "technical" or "other specialized" knowledge — is governed by the Supreme Court's upholding in Daubert, which requires a trial court to exercise a "gate-keeping" function to ensure that such testimony is both reliable and relevant. Kumho Tire Co. v. Carmichael, 526 U.S. 137, ___, 119 S.Ct. 1167, 1171 (1999);Daubert, 509 U.S. at 589-92; see also, Blue Dane Simmental Corp. v. American Simmental Assoc., 178 F.3d 1035, 1040 (8th Cir. 1999);Weisgram v. Marley Co., 169 F.3d 514, 517 (8th Cir.), cert. granted in part, 120 S.Ct. 11, and dismissed in part, 120 S.Ct. 443 (1999). In fulfilling its "gate-keeping" obligation, the trial court must "make certain that an expert, whether basing testimony on professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." Kumho Tire, 526 U.S. at ___, 119 S.Ct. at 1176. In the wake of Daubert and Kumho Tire, the Eighth Circuit has endorsed a two-step process for trial courts to use in evaluating expert testimony under Rule 702; first, the court must determine whether the expert's testimony is "reliable", and second, whether the expert's testimony is "relevant". See, e.g., Blue Dane Simmental Corp., 178 F.3d at 1040; Forklifts of St. Louis, Inc. v. Komatsu Forklift, USA, Inc., 178 F.3d 1030, 1035 (8th Cir. 1999);Jaurequi v. Carter Mfg. Co., 173 F.3d 1076, 1082-85 (8th Cir. 1999);see also, Kumho Tire, 526 U.S. at, 119 S.Ct. at 1171 ("[Daubert] pointed out that [expert] testimony is admissible only if it is both relevant and reliable."); id., 526 U.S. at ___, 119 S.Ct. at 1176 ("the objective of [the Daubert gate-keeping requirement] is to ensure the reliability and relevancy of expert testimony.").
With regard to the first prong of the test, the basic task of a trial court is to make sure that the evidentiary submission is of an acceptable "evidentiary reliability." Daubert, 509 U.S. at 590. In other words, "where [expert] testimony's factual basis, data, principles, methods, or their application are called sufficiently into question . . . the [court] must determine whether the testimony has `a reliable basis in the knowledge and experience of [the relevant] discipline.'" Kumho Tire, 526 U.S. at ___, 119 S.Ct. at 1175 [brackets in original] (quoting Daubert, 509 U.S. at 592). At bottom, the fundamental purpose of the reliability inquiry is to rule out proffered expert testimony that is based on subjective belief or unsupported speculation. Daubert, 509 U.S. at 590.
Importantly, the law grants a trial court broad discretion in deciding how to test an expert's reliability. Kumho Tire, 526 U.S. at ___, 119 S.Ct. at 1174-76; Forklifts of St. Louis, 178 F.3d at 1035. The trial court should look to Daubert for guidance when discerning whether expert testimony should be admitted or excluded and should apply the Daubert reliability factors if and to the extent they are "reasonable measures" of such testimony's reliability. Kumho, 526 U.S. at ___, 119 S.Ct. at 1174-76; Jaurequi, 173 F.3d at 1082-83;Pestel v. Vermeer Mfg. Co., 64 F.3d 382, 384 (8th Cir. 1995). In doing so, the court "must customize its inquiry to fit the facts of each particular case [.]" Jaurequi, 173 F.3d at 1083 (citing Daubert, 509 U.S. at 594 ("the inquiry envisioned by Rule 702 is, we emphasize, a flexible one.") (footnote omitted)); id., 509 U.S. at 591 (the gatekeeping inquiry must be "tied to the facts" of a particular "case"). The Daubert factors therefore, while worthy of consideration, are not an exclusive "checklist" and "many factors may bear on [the] court's Rule 702 inquiry." Jaurequi, 173 F.3d at 1084;see also, Kumho Tire, 526 U.S. at ___, 119 S.Ct. at 1175-76; Daubert, 509 U.S. at 593.
The second prong of the Rule 702/Daubert test requires a trial court to determine whether the evidence or testimony assists the trier of fact in understanding the evidence or determining a fact in issue. Daubert, 509 U.S. at 591. This condition precedent to admissibility is essentially a relevance consideration in which the trial court must ask whether the proposed expert testimony "fits" the case and will be "helpful" to the trier of fact in understanding the evidence or determining one or more factual issues. 509 U.S. at 591-92.
When assessing the expert testimony proffered under Rule 702, a trial court must also be mindful of Fed.R.Evid. 703 and 404. 509 U.S. at 595. Rule 703 provides that expert opinions based on information made known to the expert from persons and other sources are to be admitted only if the information is "of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject." Rule 404(b) permits the trial court to exclude relevant evidence "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. . . ." Because expert evidence can be both powerful and quite misleading, the court, in weighing possible prejudice against the probative value under Rule 404(b), should exercise more control over experts than lay witnesses. 509 U.S. at 595.
B. Application
In the instant case, the government seeks to offer the expert testimony of Carlson as to the cause and origin of the Castaway house fire. Specifically, the government desires to offer his opinion and investigative conclusion that the fire was started by the use of an accelerant that was applied to the entrance of a crawl space situated in the back bedroom of the residence. Notably, no attempt is being made by the government to solicit an opinion from Carlson that defendant was the one who set fire to and/or burned down the house.
This Court has considered the Daubert reliability factors:
1. Whether the theory/technique has been tested;
2. Whether it has been subject to peer review;
3. What the known rate of error is; and
4. Whether the theory/technique is generally accepted by the community.509 U.S. at 592-94; Pestel, 64 F.3d at 384. These factors, while perhaps pertinent, are not particularly helpful in analyzing whether Carlson's opinions and conclusions would assist a jury in deciding this case. See Pestel, 64 F.3d at 384. He does not seek to offer testimony about an untested novel concept such as might be found in a case involving presentation of purely cutting-edge scientific testimony. Instead, he proposes to testify based on his vast fire investigation experience as to how and where the fire began. Thus, whether Carlson's proffered expert opinions have been subject to peer review, whether there is a known error rate and whether his theory or technique enjoy general acceptance within relevant scientific community are not particularly appropriate and useful considerations, especially in a case such as this one where orthodox scientific methodology is involved. See Kumho Tire, 526 U.S. at ___, 119 S.Ct. at 1175 (observing that the Daubert factors "may or may not be pertinent in assessing reliability, depending on the nature of the issue, the expert's particular expertise, and the subject of his testimony").
This Court is satisfied that Carlson's opinions and conclusions concerning the cause and origin of the fire are reliable enough to be admitted. Carlson has an extensive background in firefighting and fire cause and origin investigation. He carefully scrutinized the fire scene, talked to individuals who provided him with relevant information, and took photographs of the remains in support of his cause and origin theories. Although he did not sample or test any of the debris from the house, or use a portable hydrocarbon detector ("sniffer") to confirm his theories as to the fire's cause and origin, nonetheless, given the amount of rain that the fire scene had been exposed to prior to his arrival and the evidence and circumstances present, it cannot be said that Carlson acted unreasonably so as to taint the validity of his theories as to what happened. Significantly, the investigative protocol he utilized, albeit somewhat individualized in nature, was consistent with the basic methodology and procedures recommended by the National Fire Protection Association (NFPA). See defendant's Exhibit A — NFPA 921 Guide For Fire and Explosion Investigations 1998 Edition. While Carlson may not have complied to the letter with the NFPA recommendations in conducting his cause and origin investigation, he still employed, in this Court's view, the requisite level of "intellectual rigor" that is demanded of experts in the field of fire cause and origin investigations. The Court accordingly concludes that Carlson's proffered testimony relating to the cause and origin of the fire is reliable and satisfies the first part of the Rule 702/Daubert test.
As for the relevancy inquiry, the second part of this test, there can be no doubt that Carlson's testimony will be helpful to a jury in understanding how and where the fire was started. Both of these considerations are important issues in the case and will assist the jury in determining whether the fire was caused by arson or by some other non-criminal means. The "fit" or connection between Carlson's expert testimony and the causation issues the jury must decide is obvious. This being the case, the proffered testimony is relevant and fulfills the second pre-condition of admissibility.
The proffered testimony also is based on facts and data obtained and relied upon by fire investigation experts in formulating opinions as to the cause and origin of a fire and thus satisfies the dictates of Fed.R.Evid. 703. See defendant's Exhibit A at 921-10, ¶¶ 2-4, 2-5, 921-40, ¶ 5-3.3, 921-45-47, ¶¶ 7-1.1, -3, -3.1, -4.1, -5.19, -5.2.6, 921-79, ¶ 12-6, 921-124, ¶ 16-18. Additionally and perhaps more importantly, the probative value of the testimony is not substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury. To the contrary, the probity of such testimony far outweighs its prejudicial effect.
Most, if not all of defendant's protestations go to the weight, not the admissibility of the proposed expert testimony. At trial, he will have an opportunity to air his criticisms and attack the credibility of Carlson's opinions and conclusions through the conventional devices of vigorous cross examination, presentation of contrary evidence and jury instructions.
After careful review of the record in accordance with its gate-keeping obligation, this Court concludes that Carlson will be permitted to offer expert opinion testimony regarding the cause and origin of the Castaway house fire. He will not, however, be allowed to offer testimony beyond his cause and origin theories or be allowed to speculate as to who caused the fire and what specific accelerant was used to start the same. See Weisgram, 169 F.3d at 518-22 (fire captain who investigated townhouse fire was qualified to offer an opinion concerning the origin of the fire but he and two other experts were not permitted to "run away" with their own unsubstantiated theories as to the precise cause of the fire).
Accordingly, based on the foregoing, and the totality of the circumstances present, it is hereby
ORDERED that defendant's Motion in Limine, Docket No. 12, shall be and is DENIED except to the extent set forth above.
BY THE COURT:
ATTEST: JOSEPH HAAS, CLERK BY: ______________ Deputy
MARK A. MORENO UNITED STATES MAGISTRATE JUDGE