Saturday, March 25, 2006

Nebraska supreme Court reverses defense verdict in a fire case where trial court refused to allow local fire chief to give an expert opinion on a fires cause, although the judge allowed the fire chief to give a layman's opinion, per Rule 701. Case is back up to the Supreme Court following remand in first case Perry Lumber Co. v. Durable Servs., 266 Neb. 517, 667 N.W.2d 194 (2003)..Perry Lumber Co. v. Durable Servs., S-05-005, 271 Neb. 303 (Perry II)HTMLTrial court refused to allow Holdredge fire chief to give opinion as to cause of fire even though fire chief had experience determining causes of fires and he also testified that he followed approved guidelines to determine causes of fires. The trial judge allowed the fire chief to give lay opinions, see Rule 701 but also instructed the jury that the fire chief's opinions were just lay opinions. After a verdict for the defendant, the Plaintiff appeals, and the Supreme Court reverses as the trial court did not follow its Daubert gate keeper function properly, which was prejudicial error because the trial court's instructions diluted the effectiveness of the proffered expert's testimony We determine that the record reflects that Wagner had sufficient knowledge, skill, training, and experience to establish himself as an expert in fire investigation and was thus qualified to testify as an expert witness on issues regarding fire investigation. See, similarly, Bayse v. Tri-County Feeds, Inc., 189 Neb. 458, 203 N.W.2d 171 (1973) (permitting fire chief to testify as expert regarding origin and cause of fire). As to the use of the standard firemans' manual for determining causes of fires, the Court finds the overwhelming acceptance of the manual meets the court's gate keeping functions: We note that Wagner and the other experts in this case generally recognized NFPA 921 as setting forth procedures by which a fire investigation is conducted. In this regard, we further note that NFPA 921 has been accepted as a methodology in other cases. See, Fireman's Fund Ins. v. Canon U.S.A., Inc., 394 F.3d 1054 (8th Cir. 2005); The court does not have to reinvent the wheel in every case: Based on the foregoing, a Daubert analysis of methodology was not necessary in this case and Perry's arguments to the contrary are unavailing. Instead of a Daubert issue, the issue before the court was whether Wagner was qualified as an expert in fire investigation. As noted above, the record demonstrates that Wagner was so qualified.Because Wagner's testimony was admissible as expert testimony, we conclude that the district court erred when it admitted Wagner's testimony only as lay witness opinion. The combination of this ruling and the court's comments to the jury relative to the admission of Wagner's testimony constituted reversible error.

No comments: