Friday, October 14, 2016

Myths about fire origins debunked

There is no lack of cases involving arsonists setting fire to buildings and vehicles to defraud their insurance companies. The 2015 Insurance Fraud Hall of Shame includes two shocking arsons. Fortunately, many such crimes are uncovered by well-trained fire investigators.

Arson still is happening just as it was decades ago, and fire-starting methods haven’t changed dramatically. What has changed are the professionals who investigate arsons. Our scientific knowledge of fire has grown substantially, and investigative techniques have improved. Professionalism overall has grown remarkably.

But has the fire-investigation community’s knowledge and sophistication plateaued? Yes and no. Some science and methodology arguably have leveled out, but more important work remains to be done. Dramatic legal changes also will affect every fire investigator and arson case, and thus every insurer involved in fire-claims litigation. 

Myths about fire origins debunked

The fire-investigation industry’s knowledge has improved exponentially in the past 25 years. Many beliefs about evidence were scientifically tested in the 1990s. The beliefs often were found to be myths. Well-known examples include collapsed bedsprings, “crazing” of glass and concrete spalling. All once were considered signs of ignitable liquid. Fire investigators today far better understand the implications of flashover — when fire generalizes throughout a room — and its potential to mask patterns the fire might have deposited in its early phases.

Other scientific knowledge has been developed and codified. Increasingly, published information has been backed with facts and data. Fire-investigation professionals came to understand the field is scientific and technical. The debate about whether it is more “art” or “science” long has passed. And as we learn more about fire science — especially ventilation and flashover — many investigators are more-cautious and thoughtful in determining fire origin and cause.

Indeed, if the boom in scientific knowledge revolutionized the field, there was an equal revolution in the methodology fire investigators use. Especially important are the thought processes and analysis needed to arrive at the correct result.

A watershed was the first edition of National Fire Protection Association Document 921, Guide for Fire and Explosion Investigations. It was issued in 1992.1

NFPA 921 codifies much of the body of knowledge about fire science. It also cements the scientific method as the correct methodology for decision-making about fire origin and cause.

“There was welcome discussion of researcher biases that were well-known...”

The scientific method involves identifying the need and problem, gathering and analyzing data, developing working hypotheses, and testing them. While the process of elimination is familiar to physicians and scientists, it was a shift in thinking for some fire investigators. There was welcome discussion of researcher biases that were well-known in the scientific community, such as “confirmation bias” and “expectation bias” that can skew seemingly objective research.

The manual is revised every three years by a committee of industry leaders. It is the most-important book on fire investigation in the U.S. — and some other countries. It is closely followed in importance by NFPA 1033, Standard for Professional Qualifications for Fire Investigator. That manual defines qualifications and job-performance requirements in the public and private sectors.

These manuals appear often in court decisions, and are widely used by attorneys on all sides of criminal and civil fire litigation. Although NFPA 921 is a guide instead of mandatory standard, numerous courts across the U.S. consider it a “best practice” or “industry standard.”2 This confirms the need to follow the methodology prescribed in the book.

“A fire investigator eliminates all potential known ignition sources ...”

New editions of NFPA 921 involve less controversy, though some controversy remains. The concept of “negative corpus” has attracted attention. A fire investigator eliminates all potential known ignition sources, then concludes this elimination proves another ignition source for which there is no evidence. Typically, investigators relying on this process point to the absence of other ignition sources as proof the cause was incendiary, such as match or lighter.

Negative corpus has supported criminal convictions and denials of insurance benefits, though not always correctly. The argument continues in the community about whether the doctrine would be appropriate under limited circumstances. But after much discussion and argument, NFPA 921 strongly states that negative corpus is not scientific method, and investigators should not use it.

These documents affect all investigators, private- and public-sector. Most fires in the U.S. first are investigated, to some extent, by fire or police departments. The qualifications of public investigators can vary, but all are subject to NFPA standards and guidelines.

Private and insurance personnel typically follow public investigators at fire scenes. The sites often are changed by the public personnel’s examinations. Public investigations thus directly affect the private ones. The insurance community has a strong incentive to encourage professionalism and training for all fire investigators. 

Courts scrutinize credentials

The legal system also has been instrumental in changes in fire investigation. The U.S. Supreme Court case of Daubert v. Merrell-Dow Pharmaceuticals, Inc.3 reaffirmed the importance of methodology a year after the first NFPA 921 was published.

The court held that federal judges would examine even well-qualified scientific experts about whether their specialty was reliable, and whether they reliably followed techniques within that specialty. Later cases extended Daubert to all technical experts. These cases had a strong impact on fire investigation as attorneys began challenging investigators about whether their methodology was reliable, and practiced reliably.

Both NFPA 921 and the Daubert line of cases have influenced the community to more closely examine its work patterns and thought processes, and issue more-reasoned and -supported decisions.

An investigator wishing to justify conclusions from the process of elimination must carefully document all hypotheses considered and ruled out. This forces a more-thorough and comprehensive analysis. Consumers of fire-investigation reports, such as insurers, must be prepared to see more-cautious opinions and conclusions from good fire investigators. Investigators also may be more-reluctant to make conclusive determinations.

This reflects the fire-investigation community’s increasing knowledge about fire causes — and realization that just because we are unaware of something doesn’t mean it didn’t happen.

“The effects of flashover still are being studied.”

Science continues improving our knowledge of fire patterns, and ability to analyze fire behavior and movement. The effects of ventilation — air from windows and doors, for example — are under intense study. Numerous papers and presentations have greatly enhanced our knowledge of this subject in recent years. Major agencies such as NIST and the ATF have done large-scale fire testing and experimenting to further understand ventilation and fire spread.

Electrical effects within conductors also are under study. The effects of flashover still are being examined.

There is a sea change coming on the legal front as well. The National Academy of Sciences published a comprehensive report on the state of forensic sciences in the U.S. in 2009. The document, Strengthening Forensic Science in the United States: A Path Forward,4 questioned many scientific practices used in forensic disciplines. Wrongful convictions could result from faulty and imperfect forensic analysis, the report pointed out. It also criticized the lack of standardized certification and accreditation for forensic practitioners.

The report caused waves in the forensic science community. Fire investigation and science were only briefly mentioned in the report, and not very favorably. The report referred to fire-pattern myths relied upon in fire investigations in the past (unfairly, with these myths long discredited). It stated that experiments were needed to put arson investigations on more- solid ground.

As a result, the U.S. Department of Justice and the National Institute of Standards and Technology jointly founded the National Commission on Forensic Science in 2013. The goal was to recommend national strategies to strengthen the validity and reliability of forensic sciences.

These agencies also formed the Organization of Scientific Area Committees. It examines forensic practices and identifies standards practitioners should follow. The OSAC committees oversee numerous subcommittees on specific areas of forensic practice, including fire and explosion investigation.
Federal labs being credentialed

This process is moving quickly for a government effort. A subcommittee of the National Commission last year recommended accreditation for all forensic science service providers — public and private. U.S. Attorney General Loretta Lynch then directed the Department of Justice to ensure that within five years, all DOJ laboratories will obtain and maintain accreditation. All prosecutors also will use accredited labs to process forensic evidence when practical.5

The impact of the OSAC’s work likely will be dramatic. Likely both NFPA 921 and NFPA 1033 will be included in the committee’s registry of standards and guides. Though OSAC lacks authority to require action, it will increase the scrutiny of fire investigator qualifications. And it will push fire investigators toward certification and accreditation.

The private and insurance sectors are squarely implicated in any changes. The imprimatur of government approval of documents, methodology and accreditation will be difficult to avoid regardless of legal context. Even if the OSAC benchmarks will apply mostly to government investigators, all investigators will be called upon to defend their qualifications and work under those benchmarks.

“The private and insurance investigators are squarely implicated in any changes.”

The Daubert cases also shifted the focus from the fire investigator’s qualifications to their methodology. Ironically, the OSAC phenomenon will somewhat shift the focus back to qualifications. The Attorney General already has acted based on the accreditation recommendations, and more scrutiny of our certifications and accreditation is sure to follow.

Several fire-investigation certifications are available in the U.S. Solid credentials and substantial ongoing training carry much weight in court. Happily, most practitioners regularly obtain continuing education and training, improve their techniques and documentation, and gain credentials such as certifications.

The nature of the credentials takes on greater importance. Since 1986, the International Association of Arson Investigators has offered its Certified Fire Investigator (IAAI-CFI®) credential to experienced investigators who meet rigorous requirements.

The IAAI-CFI® is accredited by the National Board on Fire Service Professional Qualifications (commonly called “Pro Board.”). The IAAI-CFI® also received accreditation by the Forensic Specialties Accreditation Board in 2014. It creates a mechanism for the forensic community to assess, recognize and monitor organizations, or boards that certify individual forensic scientists or other forensic specialists. No other internationally available fire-investigator certification has either Pro Board or FSAB accreditation.

The Pro Board has a long history in the U.S. fire service. The FSAB’s accreditation also appeals to fire investigators who must defend their work. It shows approval by an entity that is oriented to forensic science. And insurer fire investigators can take equal advantage of the prestige that accreditation affords public-safety organizations. Investigators also can rely on accreditation to prove in court that they have a certification that was independently evaluated under national consensus standards.

Insurers who want to stay ahead of arson trends must evaluate the firms and individuals they contract with for fire investigations — their certifications and designations, and their reports and other work products. Some insurers and private firms require contract investigators to have the IAAI-CFI®. Many rely on contract experts to examine their investigators’ work product and qualifications. Simply put, the vetting and retaining of qualified experts must begin long before the loss is reported to the adjuster.
Investigations must be defensible

Our knowledge of fire science and fire behavior has expanded greatly in recent decades. Public safety, insurers and justice all benefit. Just as important is the dramatic increase in attention to methodology in examining fires and explosions to determine origin and cause. The courts have helped accelerate this increase, and will play an important role in changes that will happen as government and the private sector strengthen forensic sciences.

Arson clearly remains a major problem in the U.S. The best way to stop this threat, and convict the guilty, is to ensure the best possible investigations. The insurance industry will be deeply affected by changes in the fire- investigation community. The changes will affect the public sector, whose work underlies most scene investigations, and the private sector. Their work must be reliable and defensible to properly adjudicate property claims, bad-faith allegations and subrogation interests.