Court Turns Down The Heat On Requirements For Ignition Scenario Testing

A federal court in Wisconsin recently addressed what constitutes acceptable conditions for ignition scenario testing in fire cases. In Smithfield Foods, Inc. et al. v. United States, 2014 U.S. Dist. LEXIS 134523 (E.D. Wis., September 23, 2014), the plaintiffs filed suit against the United States under the Federal Tort Claims Act alleging that a pork processing facility was destroyed by a fire ignited by a M125 military flare stolen by a member of the United States Marine Corps. The plaintiffs claimed that the United States was negligent because it failed to properly track, secure and store munitions, and to prevent such items from finding their way into an uncontrolled area, or into unauthorized hands.

The plaintiffs filed a motion in limine seeking to exclude the report, opinions, and testimony of the United States’ causation expert based on the methodology of his testing. Specifically, the plaintiffs asserted that the expert did not use the type of flare alleged to have caused the fire, he did not follow a test procedure established by the American Society for Testing and Materials (ASTM) for conducting exterior fire tests of roofing material, and his mock ups did not represent the actual conditions of the building that was ignited by the flare.

In denying the plaintiffs’ motion, the court noted that the expert followed the recommended procedures outlined in NFPA 921 in that the roofing assemblies for his tests were made of components “similar” to the roof of the incident building, which was 125 years old and difficult to replicate. Further, the court found that the expert’s decision not to use the M125 flare in his testing was consistent with the United States’ theory of the case that commercially available flares are comparable to the M125 flare and that the expert’s testimony would assist the court in determining a relevant fact at issue in the case – whether a publicly available flare could have ignited the fire.

The court’s ruling in Smithfield Foods establishes that experts will be afforded leeway when testing a potential ignition scenario, as the recreation of identical fire scene conditions is not always a necessity. Rather, an analysis of what constitutes “similar” fire scene conditions may be required.


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