A Subrogation Deposition with No Scene Examination
You are the plaintiff's expert in a subrogation suit. Your report states the cause was an electrical fault in the wall behind the range and estimates damages at 412,000 dollars. At deposition, defense counsel establishes four things: you did not examine the scene, and your opinions rest on 60 photographs taken by the carrier's adjuster plus a one-page fire department report; the range you identified was destroyed by the insured's own contractor before you were retained; your file contains no record of the calculations behind the damage estimate; and you have testified 14 times in the past 3 years. The fire department report classifies the cause as undetermined. Counsel asks whether NFPA 921 is the law and whether you ruled out every other possible cause. Your fee is 350 dollars per hour and you billed 41 hours.
1. How do you answer the questions about NFPA 921 and about ruling out every other cause?
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On 921: it is a guide, not a law and not an enforceable code. It is the consensus document describing how the scientific method is applied to fire investigation, and courts and opposing experts routinely treat it as evidence of a reliable methodology. Some jurisdictions effectively use it as a standard of care. I apply its method; I do not claim it has the force of statute.
On ruling out every cause: I cannot prove a negative, and no competent investigator claims to have eliminated every conceivable cause. What I do is form hypotheses, test them against the physical evidence, and eliminate those that are inconsistent with it. When the data cannot eliminate a hypothesis, the correct classification is undetermined, not a cause selected by default.
Negative corpus: concluding a cause simply because no accidental cause was found is not a valid methodology under 921, and I say so directly. An electrical cause has to rest on affirmative evidence of an electrical failure at the origin, not on the absence of alternatives.
Where this leaves my own opinion: the fire department classified the fire undetermined. I must be prepared to state exactly which affirmative evidence supports my electrical opinion, and if I cannot, I say so at the deposition rather than defending an unsupportable conclusion.
2. What is your exposure on opinions formed without examining the scene and after the range was destroyed? Walk through the reasoning.
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Basis of the opinion. An expert opinion must rest on sufficient facts and data. Photographs can be a legitimate basis, but only if I can establish their reliability: who took them, when, what they show, whether the set is complete, and whether anything was moved before they were taken. Sixty adjuster photographs of unknown completeness, plus a one-page report, may not be enough to eliminate competing hypotheses, and that is the honest answer to give.
Spoliation. The range was destroyed by the insured's contractor before I was retained. That is a preservation failure, and even though my client did not cause it, a court can instruct the jury that the missing evidence would have been unfavorable to the party that controlled it. Any opinion that depends on the range being the origin is exposed. I disclose this in the report and at deposition rather than waiting for it to be extracted.
The damage estimate. An estimate with no supporting calculations cannot be defended. The remedy is to produce the quantities, unit costs, depreciation, and methodology behind the 412,000 dollars, or to withdraw the number. If the records do not exist, the number should not be in the report.
Corrective action. If the deposition reveals an error, I correct it in writing promptly. That protects the opinion and the client more than defending a weak point.
3. How do you handle the questions about your fee and your 14 prior testimonies?
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Answer directly and without defensiveness. Yes, I am paid 350 dollars per hour; yes, I billed 41 hours; yes, I have testified 14 times in three years. I provide the list of prior cases, and I state plainly that my compensation does not depend on the outcome.
Explain rather than deny. The fee question is designed to suggest bias. The effective response is that the fee is for time and analysis, that a contrary finding would be reported just as readily, and that the methodology constrains the conclusion rather than the other way around. Getting irritated or evasive on this point does more damage than the underlying fact.
Acknowledge the limits of the assignment. I should also be candid that I accepted a case in which I could not examine the scene, and explain what I did to test the photographs and the report and what I could not test. That disclosure is what makes the rest of the testimony credible.
Conduct. Answer the question asked, do not volunteer conclusions, do not argue with counsel, and correct any misstatement I make immediately on the record.