Deposition Pressure, an Undetermined Cause, and a Scrapped Appliance
You are retained by the defense in a subrogation suit over a $2.4 million restaurant fire. Your scene inspection occurred 11 days after the fire. Your report reads: area of origin - northeast corner of the kitchen, in the vicinity of a wall-mounted junction box; cause classification - undetermined, because the conductors and box were destroyed and the area had been overhauled before your inspection. Plaintiff's expert opines a specific make of appliance. At your deposition, defense counsel asks you to state that the fire was 'electrical in nature, more likely than not,' reminding you that your invoice is partly unpaid and that the case 'needs' the opinion. You also learn that a preservation letter went to the restaurant owner six days after the fire, but the appliance was scrapped three weeks later.
1. How do you respond to the request to opine 'electrical in nature, more likely than not'? Address the classification scheme and the standard of certainty.
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What can be defended: the area of origin in the northeast kitchen corner, the fact that energized conductors were present there, and the fact that the junction box was destroyed. Those are findings.
What cannot: that electricity caused the fire. A destroyed junction box in the origin area is consistent with several hypotheses - a series or parallel arc, a fire attacking energized conductors, or an unrelated heat source adjacent to the box - and the evidence that would discriminate among them was consumed or removed. Attaching 'more likely than not' to an untested hypothesis does not create evidence; it launders absence into probability.
Classification discipline: the recognized categories are accidental, natural, incendiary, and undetermined. There is no 'probable' category, and an investigator who cannot determine a cause to a reasonable degree of professional certainty must classify it as undetermined. That is the classification you already reached and it is correct.
Deposition language: explain the difference between what a party must prove and what an expert can support; state that you would need X, Y, and Z to move off undetermined; and note that your report discloses the post-fire overhaul as the operative limitation. A defended 'undetermined' is far more valuable than a probabilistic opinion that invites a reliability challenge and discredits everything else you say.
2. Analyze the preservation issue. Who bore what duty, what should you have done earlier, and how should it appear in your report?
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Duty: the obligation to preserve evidence arises when litigation is reasonably anticipated. Here the letter went to the owner six days after the fire, so the owner was on notice; the appliance was scrapped three weeks later, after that notice. The recycler was never told, which is the practical failure: notice to a party is only effective if the party transmits it to whomever holds the item.
Your own exposure: you inspected on day 11 and learned of the appliance's existence and location - you should have sent your own written preservation request and photographed the appliance in place. Relying on someone else's letter is not a preservation program.
What to do now: obtain the preservation letter, the owner's correspondence, and any scrapping or recycling records; photograph and document where the appliance stood, the cord, the receptacle, and the breaker; and secure any surviving components.
Report treatment: disclose the destruction factually and neutrally in the limitations section, state what examination of the appliance would have resolved, and stop there. Whether the loss of evidence carries a legal sanction is a question for counsel and the court, not for you, and offering that opinion jeopardizes your role as a neutral technical witness.
3. The invoice is partly unpaid and counsel says the case 'needs' the opinion. What are the ethical obligations, and what do you do in the room?
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The obligation is independence. An expert's compensation may not be contingent on the content or outcome of testimony. Counsel's remark tying payment to a 'needed' opinion converts a fee into contingent compensation, and accepting that framing destroys the appearance and the reality of objectivity.
In the room: decline the characterization, restate that your opinion is undetermined and will remain so unless new evidence emerges, and ask that the remark be treated as a request for clarification of your analysis rather than a condition of payment. Then put it in writing - a short letter confirming your opinion is unaffected by fee status and that any change will be evidence-driven.
Fee dispute: pursue the invoice through the retention agreement and billing channels, separately from the substance of the opinion. Never let an unpaid balance move an opinion in either direction, including becoming more favorable in hope of payment.
Broader duty: under the professional and scientific-method standards governing fire investigation, the investigator must be able to defend every step - identify the problem, collect data, develop and test hypotheses, and select the one that survives testing. 'The case needs it' is not a test. If counsel persists, the appropriate step is to notify your own client of the conflict and consider withdrawal rather than compromise the report.