Opinion
CASE NO. 5:08-CR-38.
October 12, 2010
MEMORANDUM OPINION AND ORDER
This matter is before the Court upon Defendant's Motion for Daubert Hearing and to Exclude Testimony (Docket #84) and the government's Motion to Exclude Testimony of Defense Expert Witnesses (Docket #83). A Daubert hearing was held in this matter on August 24, 26, 27 and 30, 2010. The parties have filed supplemental briefs (Docket #112, 113). This matter is now ripe for adjudication.
BACKGROUND
This case arises from a fire that occurred on May 29, 2007, at the Fort Campbell, Kentucky, U.S. Army base. Defendant Billi Jo Smallwood resided at 4137 Dixie Road, unit D, with her husband, Wayne Smallwood, and three minor children. In the early morning hours of May 29, 2007, neighbors reported the Smallwood residence was on fire to the Fort Campbell Fire Department. Upon arrival, the firefighters discovered Billi Jo and Wayne Smallwood, with their youngest child, outside the residence. The other two children were still in the house. Firefighters attempted to rescue the two children, but neither survived. Billi Jo Smallwood was transported to Vanderbilt Medical Center for treatment of severe burns she received during the fire. Mrs. Smallwood sustained second degree burns to the fronts of both legs, from her knees to her feet, and her right forearm.
While assessing the fire scene, Special Agent Amber Wojner of Army CID noticed that the Smallwoods' car had been vandalized. The tires had been flattened and there were words written on the exterior of the vehicle. A knife was located on a desk pulled from the Smallwoods' home by firefighters. Law enforcement agents seized the knife along with various other items of evidence on May 29, 2007.
Mrs. Smallwood was indicted on November 13, 2008, for malicious damage and destruction by fire to property owned by the United States and malicious damage and destruction by fire to property owned by the United States resulting in deaths. She was arrested on November 18, 2008. The government filed a superseeding indictment on September 22, 2010. This case is now set for trial on October 18, 2010. Defendant seeks to exclude the testimony of government experts Dr. John DeHaan and Ms. Kristin Gerber. The government seeks to exclude the testimony of Mr. Doug Carpenter.
STANDARD
Under Federal Rule of Evidence 702, "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case." Rule 702 was amended in 2000 to address the Supreme Court's seminal opinion of Daubert v. Merrill Dow Pharm., Inc., 509 U.S. 579 (1993), and its progeny, including Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999). See Fed.R.Evid. 702, Advisory Committee Notes. To determine reliability, a court can look at factors "such as testing, peer review, error rates, and "acceptability" in the relevant scientific community[.]" Kumho Tires, 526 U.S. at 141.
"As a gatekeeper, the trial judge has discretion in determining whether a proposed expert's testimony is admissible based on whether the testimony is both relevant and reliable." Rose v. Truck Centers, Inc., No. 09-3597, 2010 WL 3069613, at *4 (6th Cir. Aug. 6, 2010) (citing Johnson v. Manitowoc Boom Trucks, Inc., 484 F.3d 426, 429 (6th Cir. 2007); Daubert, 509 U.S. at 589). The trial judge must assess "whether the reasoning of methodology underlying the testimony is scientifically valid and [] whether that reasoning or methodology properly can be applied to the facts in issue." Daubert, 509 U.S. at 592-93.
DISCUSSION
I. John DeHaan
Government expert John DeHaan intends to testify that Defendant's burns were inconsistent with her version of the events. Instead, DeHaan will testify that Defendant's burns "were entirely consistent with those produced when someone ignites the vapors of gasoline or a similar ignitable liquid on a floor by application of an open flame." In preparing his opinion, DeHaan reviewed investigative files, interviews, medical records, photographs, and other investigative reports from this case. He also visited the Smallwood residence in February of 2008.
Defendant objects specifically to the following opinions DeHaan intends to offer:
1. The burns to Defendant were not the result of being on the stairs of the structure and being chased by the flames as they extended up the stairs;
2. The burns were not the result of exposure to heat or flames after her escape;
3. The burns to Defendant were entirely consistent with those produced when someone ignites the vapors of gasoline or a similar ignitable liquid on a floor by application of an open flame;
4. The smoke detectors in the dwelling were intentionally removed before the fire;
5. The appearance of burns to lower extremities (fronts), one or both forearms (forward or inside), or hands and the face is observed most often when the burn victim has been responsible for actually igniting a volume of flammable gas or vapor with a hand-held source such as a match, lighter or candle;
6. And any other analysis or opinion by Dr. DeHaan which attempts to link Defendant to being the person who set the fire.
As a preliminary matter, the Court finds DeHaan qualified to testify as an expert on this matter. DeHaan obtained his Bachelor of Science in Physics from the University of Illinois — Chicago Circle in 1969. In 1995, he earned his Ph.D. in Pure and Applied Chemistry (Forensic Science), at Strathclyde University in Glasgow, Scotland. DeHaan has extensive experience (approximately 37 years) in the area of fire and explosives. He is a member of various fire and forensic associations, has authored or co-authored several publications on the subject of fire investigations, and has testified as an expert in numerous trials.
The parties do not dispute that DeHaan's opinions are relevant. Defendant is charged with malicious damage and destruction by fire to property owned by the United States. Neither party disputes that the cause of the fire was arson. Therefore, DeHaan's opinions as to who committed the arson are clearly relevant.
The true point of contention in regard to DeHaan's testimony is whether his opinion is reliable. The Supreme Court, in Daubert, provided a non-exclusive list of factors for trial courts to consider in evaluating reliability. Daubert, 509 U.S. at 593-594. These factors include: "testing, peer review, publication, error rates, the existence and maintenance of standards controlling the technique's operation and general acceptance in the scientific community." In re Scrap Metal Antitrust Litig., 527 F.3d, 517, 529 (6th Cir. 2008) (citing United States v. Langan, 263 F.3d 613, 621 (6th Cir. 2001)). The test of reliability, however, is a flexible one. Id. "A court must be sure not `to exclude an expert's testimony on the ground that the court believes one version of the facts and not the other.'" Id. Reliability instead means "an expert's testimony . . . must be `supported by appropriate validation — i.e., `good grounds,' based on what is known." Id. (citing Daubert, 509 U.S. at 590). "The task for the district court in deciding whether an expert's opinion is reliable is not to determine whether it is correct, but rather to determine whether it rests upon a reliable foundation, as opposed to, say, unsupported speculation." Id. at 529-30.
The Court considers each of Defendant's objections separately.
A. DeHaan's opinion that the burns to Defendant were not the result of being on the stairs of the structure and being chased by the flames as they extended up the stairs
DeHaan testified that, based on his review of the case, Defendant's primary burns were on the fronts of both her right and left legs from the knees to the feet. Her injuries were second-degree burns. Defendant's toes and heel appear to have been protected by a pull-on slipper on each foot. DeHaan also testified that a burn was reported on the outside of her right forearm, although this was not documented by photographs. Defendant had soot on her face, but no burns. Based on her injuries, DeHaan concluded that "[t]he distribution of burn damage to the fronts of legs are what you would expect from actually the simple physics of a heat source being at low level and radiant heat from that heat source striking the nearest facing surface of the skin and inducing damage . . . where that radiant heat can strike." Daubert Transcript, DN 101, p. 1-14.
DeHaan went on to add that Defendant's burns could not have resulted from her presence on the stairs of the structure because a solid side wall would have prevented radiant heat from striking her legs. "In fact, if she's down far enough on that stairway that she's going to be receiving any heat, she's going to be getting radiant heat basically from the waist up, because from the waist down, there's a solid wall protecting her." DN 101, p. 1-18. Based on this logic, DeHaan concluded that Defendant must have been on the landing of the stairway or on the floor of the living room.
DeHaan is certainly permitted to testify as to his knowledge of radiant heat and the characteristics of the fire, as these conclusions are based upon a sufficient foundation of experience and literature. In addition, DeHaan's opinion that Defendant could not have been located on the stairs at the time she received her burns shall not be excluded. DeHaan visited the Smallwood residence and observed the wall that separates the stairwell from the living room. Applying his knowledge of radiant heat to the circumstances described by Defendant and the geometric layout of the residence, DeHaan reached his opinion that Defendant could not have been on the stairwell at the time she received the burns on her legs. This conclusion is supported by sound reasoning, DeHaan's personal observations, and studies on the effects of radiant heat on surfaces.
B. DeHaan's opinion that Defendant's burns were not the result of exposure to heat or flames after her escape
Next, Defendant seeks to exclude DeHaan's opinion that Defendant's burns could not have been the result of exposure to the fire after her escape. DeHaan stated in his testimony before the Court that he "assessed the distribution of burns and various sources of burn injuries after she retreated up the stairs and attempted to make her escape from the rear porch overhang, and those burns were not consistent with those events . . ." Daubert Transcript, DN 101, p. 1-12. DeHaan's report explains in more detail:
Mrs. Smallwood reportedly was chased up the stairs by a fire rapidly advancing across the floor and up the stairs. Had this occurred, the predominant burns would have been to the "backs" of her legs, not to the front areas, and would not have burned the tops of both feet. While awaiting rescue, she reportedly had her legs extended over the edge of the patio roof. The heat and smoke damage above the windows under that roof indicated only modest emission of hot gases. The patio roof was also steeply pitched downward and ran continuously the length of the six-unit block. There would not have been sufficient heat flowing outward from under the roof eave (as a balcony plume) to induce injury to exposed skin. In any event, such injury would have been incurred on the backs of the legs, not the front. Mrs. Smallwood also claimed she attempted re-entry through the bedroom window from which she escaped but was driven back by the smoke and heat. While such exposure could account for the first degree burns on her face, neck and chest, the heat would be accompanied by intense smoke. Very little smoke was observed on her when she was rescued, and there were no reports of breathing difficulties detected during emergency room treatment.
DeHaan Preliminary Report, US-000612 (attached as Exhibit 1). DeHaan's opinion is based upon Defendant's version of the events of May 29, 2007.
The Court finds that DeHaan's opinions as to whether Defendant could have received the burns on her legs from (1) being chased up the stairs, (2) extending her legs over the patio roof, and (3) attempting re-entry of the home through the bedroom window are improper expert opinions and shall be excluded. The Court believes DeHaan's opinions as to Defendant's escape are too speculative in regards to Defendant's actions and the progression of the fire. DeHaan presented no scientific analysis as to how the fire would have progressed after ignition in the living room as far as traveling up the stairs, down a hall, and into the bedrooms. In addition, he failed to point out any of his own experiments or other studies regarding heat levels, smoke inhalation, and the timing of fires. As DeHaan's conclusions are unsupported, the Court believes they lack sufficient reliability.
C. DeHaan's opinion that Defendant's burns were entirely consistent with those produced when someone ignites the vapors of gasoline or a similar ignitable liquid on a floor by application of an open flame
DeHaan intends to offer his opinion that Defendant's burns are consistent with those produced when someone ignites the vapors of gasoline by application of an open flame. Defendant objects to this conclusion because there is no valid, scientific basis for DeHaan's opinion. In addition, Defendant notes that the lack of systematic studies on the burns sustained by people igniting a fire prevents the Court from finding that DeHaan's proffered opinion is reliable.
First, DeHaan's report indicates that "[s]econd and third degree burns to the lower extremities are commonly observed when a person is standing near or walking through vapors of flammable liquid as they burn." DeHaan's Preliminary Report, US-000612 (attached as Exhibit 1). DeHaan also notes that burns predominantly on one side of an extremity are common when a person is facing a fire rather than walking through it. While both of these statements are admissible on their own, neither statement supports the conclusion that Defendant ignited the fire.
According to DeHaan's testimony, one of the sources he relied on titled "The Morphology of Cutaneous Burn Injuries" by Fracasso looked at patients' burns after exposure to deflagrations. In that study, patients obtained burns to the face and hands, but the paper does not address any injuries to the legs. That paper also acknowledged the lack of systematic studies in the area of the morphology of cutaneous burns. DeHaan noted that the literature "is very limited and especially when it comes to people setting fires, because they tend not to be identified in especially the medical literature." Daubert Transcript, DN 101, p. 1-27. Fracasso's paper referenced another paper by Mark Bohnert which looked at five case studies of people who had started fires. The subjects suffered singed hair and burns to the forehead, nose, cheeks, hair, temporal region, and fingertips. Although DeHaan did not recall this paper, he acknowledged that he had read it and cited it as a reference in one of his books.
In DeHaan's own writings, he notes that victims of fires sometimes suffer no significant antemortem damage. In addition, he states that "[a] person who represents the ignition source, however . . . is much less likely to be injured because the flames move rapidly away from the source. This person will often escape any injury, especially where there is a layer of fuel vapor/air involved." Daubert Transcript, DN 101, p. 1-34. DeHaan clarified that "less likely" was an important part of that statement, and noted that the energy of the flame around that ignition source would be less intense.
DeHaan's report states that burns to the fronts of lower extremities, one or both forearms or hands, and the face are "observed most often when the burn victim has been responsible for actually igniting a volume of flammable gas or vapor with a hand-held source such as a match, lighter or candle." DeHaan Preliminary Report, US-000612 (attached as Exhibit 1). However, neither his report nor his testimony offers any support for these conclusions. In addition, the texts DeHaan relied upon in formulating his opinion provide little, if any, support. In some cases, the literature and DeHaan's own studies appear to contradict his opinion. For instance, DeHaan's own research acknowledges that there is a lack of reliable data as to second-degree burns from thermal radiation. Moreover, DeHaan fails to point to any studies that demonstrate second-degree burns on the front lower extremities of a person who served as the ignition source of a fire. In fact, some of DeHaan's own research shows little or no harm caused to the person responsible for igniting the fire since the flame front moves outward, away from the ignition source.
The government argues that DeHaan's opinion is proper because his opinions are supported by his education, training, and experience. The Court has already acknowledged that DeHaan is qualified to testify as an expert in this case. Additionally, the Court notes that DeHaan's experience in the field is extensive. As noted above, DeHaan shall be allowed to testify to the following, as stated in his preliminary report:
Second and third degree burns to the lower extremities are commonly observed when a person is standing near or walking through vapors of flammable liquids as they burn. The radiant heat (and convected heat if actual flame contact occurs) can induce second degree skin burns (sloughing of skin, blistering) within 3-4 seconds of exposure. The appearance of third degree burns usually requires a longer time of contact (5 seconds or longer). The presence of such burns predominantly only on one side (i,e., not circumferential — not all the way around the leg) is observed when the person is facing the fire rather than walking through it.
DeHaan Preliminary Report, US-000612 (attached as Exhibit 1). However, DeHaan's particular opinion as to Defendant's burns being consistent with those of someone who ignited a fire remains unsupported and therefore, unreliable. Because of this, any opinion offered by DeHaan which states that Defendant's burns are consistent with those produced when someone ignites the vapors of gasoline or a similar ignitable liquid on a floor by application of an open flame must be excluded. This includes the portion of his report which states:
The appearance of burns to lower extremities (fronts), one or both forearms (forward of inside) or hands and the face is observed most often when the burn victim has been responsible for actually igniting a volume of flammable gas or vapor with a hand-held source such as a match, lighter or candle.
DeHaan Preliminary Report, US-000612 (attached as Exhibit 1). In other words, DeHaan lacks a reliable scientific foundation to affirmatively state that Defendant's burns are consistent with her being the one who set the fire.
D. DeHaan's opinion that the smoke detectors in the dwelling were intentionally removed before the fire
DeHaan's report states as follows in regards to the smoke detectors located in the Smallwood residence:
The unit was reportedly fitted with two hard-wired smoke detectors (unknown type). The mounting plates and wires for both were found during scene examination, but the dining room unit was found disconnected and placed on the child's high chair. The second unit was never found. Such units, if in place during a fire, will usually have the melted plastic housing adhering to the wires. These findings strongly suggest that both units were removed intentionally before the fire.
DeHaan Preliminary Report, US-000613 (attached as Exhibit 1). It appears to the Court that neither party challenges the location of the smoke detectors following the fire. Rather, the parties seem to dispute the intent of the removal of the smoke detectors. Any opinion as to the motive behind removing the smoke detectors is purely speculation on the part of either DeHaan or defense expert Doug Carpenter. In addition, DeHaan's opinion that the smoke detectors were intentionally removed before the fire implies guilt, and is therefore unduly prejudicial given the lack of evidence as to the reasons for removal. Therefore, this opinion testimony shall be excluded as it is speculation, prejudicial, and will not assist the trier of fact.
E. DeHaan's opinion that the appearance of burns to lower extremities (fronts), one or both forearms (forward or inside) or hands and the face is observed most often when the burn victim has been responsible for actually igniting a volume of flammable gas or vapor with a hand-held source such as a match, lighter or candle
The opinion offered under this section is similar to that addressed in section C. The Court addressed the lack of reliability for such conclusions in that section, and finds that this opinion must also be excluded to the same extent detailed in section C.
F. Any other analysis or opinion by DeHaan which attempts to link Defendant to being the person who set the fire
Finally, Defendant asks the Court to exclude any other opinions offered by DeHaan which link Defendant to being the person who set the fire. The Court finds that this request is too vague. Nor does the Court perceive any other opinions of this sort which DeHaan intends to offer at trial. The Court notes that it instructed the parties on several occasions to make objections with specificity.
II. Doug Carpenter
Defense expert Doug Carpenter intends to refute DeHaan's findings by testifying that the burns to Defendant's lower legs are entirely consistent with her story that she was located on the stairs at the time she received these injuries. The government specifically seeks exclusion of Carpenter's opinions on the following:
1. The burns to Defendant's lower legs are totally inconsistent with the hypothesis that she was in the living room at the time of the fire's ignition, requiring her to walk through the fire in the living room to reach the stairs to the second floor, which would have produced circumferential burns;
2. The Defendant's thermal injuries to her upper body (including her forearm, upper chest, face and singed hair) are entirely consistent with the hypothesis that she was attempting to rescue her children once she was on the lower roof of the apartment building and trying to regain entrance to the apartment through a second story window;
3. The time frame for the Defendant's observation of the initial fire is entirely consistent with hearing noise caused by a person introducing ignitable liquid into the first floor of the Smallwood's apartment and giving her time to react to the sound and get down the stairs to witness the rapidly advancing blue flame across the living room floor towards the stairs;
4. That there is no evidence Defendant manufactured evidence in this case, including causing damage to the Smallwood vehicle;
5. And that the intentional removal of smoke detectors is a frequent and perennial problem identified by the fire protection community since the introduction of smoke detectors in the residential setting.
The Court finds Carpenter qualified to testify as an expert in this matter. Carpenter received his Associate in Science in Mechanical Engineering from Vermont Technical College in 1984. In 1992, he earned his Bachelor of Science in Mechanical Engineering from the University of Vermont. He also received his Master of Science in Fire Protection Engineering from Worcester Polytechnic Institute in 1996. Since 1998, Carpenter has been a principal engineer for Combustion Science Engineering, Inc., through which he is responsible for fire investigations, fire reconstruction analyses, and fire hazard analyses. He is a Certified Fire and Explosion Investigator through the National Association of Fire Investigators, a member of several professional fire safety and protection associations, and has published several articles on fire hazards and fire models.
Similarly to DeHaan, neither party argues that Carpenter's opinions are not relevant. Instead, the government objects to each of the opinions listed above because they are speculative and argumentative, rather than expert opinion. Carpenter did not testify at the Daubert hearing. The only evidence as to Carpenter's opinion before the Court is what appears to be a letter written by defense counsel to government counsel detailing what Carpenter's testimony will contain (attached as Exhibit 2). The Court will address each challenged opinion separately.
A. Carpenter's opinion that the burns to Defendant's lower legs are totally inconsistent with the hypothesis that she was in the living room at the time of the fire's ignition, requiring her to walk through the fire in the living room to reach the stairs to the second floor, which would have produced circumferential burns
In support of this opinion, Carpenter is expected to testify that because Defendant was observed by eyewitnesses in the upstairs hallway and on the lower roof off of the second floor, she could not have been located in the living room at the time of the fire's ignition. This is because "she would have had to traverse or `walk through' the fire in the living room and bottom of the stairs to reach the second floor." Carpenter Letter, p. 2 (attached as Exhibit 2). According to Carpenter, such a path would have produced circumferential burns around her entire legs.
Carpenter's opinion serves as a clear rebuttal to DeHaan's opinion that Defendant was in the living room at the time the fire began. The Court believes that allowing any expert opinion as to Defendant's location is already a close decision in terms of admissibility. However, since the Court will allow DeHaan to present expert opinion on this subject, Carpenter shall be permitted to offer his opinion as well. The Court has found that Carpenter is qualified to testify as to the characteristics of fire, and his opinion is based on facts contained in the record, so the Court will not exclude this rebuttal evidence. The Court does not believe it is too speculative or argumentative. Rather, Carpenter's opinion is a reasoned response to DeHaan's opinion.
B. Carpenter's opinion that Defendant's thermal injuries to her upper body (including her forearm, upper chest, face and singed hair) are entirely consistent with the hypothesis that she was attempting to rescue her children once she was on the lower roof of the apartment building and trying to regain entrance to the apartment through a second story window
The government seeks to exclude Carpenter's opinion because it is too speculative. Carpenter bases his opinion regarding Defendant's rescue attempts on the following reasoning:
Billi Jo Smallwood's thermal injuries to her upper body including her forearm, upper chest, face and singed hair received during the fire incident of May 29, 2007, are entirely consistent with the hypothesis that she was trying to rescue her children once she was on the lower roof of the apartment building and trying to regain entrance to the apartment through a second story window. Billi Jo Smallwood was holding her youngest child while on the lower roof and since she was right-handed, she would have carried the baby in her left arm and used her right arm to attempt to reenter the apartment from the lower roof through a second story window. In addition, the soot on her face, but not in her airway, thermal injuries to her upper body, and singed hair is also entirely consistent with this action since she would naturally hold her breath when she put her head close to or through the window and exposing her face to hot, sooty smoke produced by the fire within the apartment, but not breathing in soot laden smoke.
Carpenter Letter, p. 2 (emphasis in original) (attached as Exhibit 2). The Court agrees with the government that this reasoning is too speculative and does not provide a proper expert opinion. Carpenter may not speculate as to how Defendant "would have carried the baby" or that Defendant "would naturally hold her breath." Accordingly, this opinion must be excluded.
C. Carpenter's opinion that the time frame for Defendant's observation of the initial fire is entirely consistent with hearing noise caused by a person introducing ignitable liquid into the first floor of the Smallwood's apartment and giving her time to react to the sound and get down the stairs to witness the rapidly advancing blue flame across the living room floor towards the stairs
The letter detailing Carpenter's opinions provides no support or reasoning for his opinion regarding the amount of time between Defendant hearing someone introducing ignitable liquid on the first floor and Defendant's observation of a blue flame rapidly advancing across the floor towards the stairs. It is clear to the Court that this opinion is far too speculative to be considered an expert opinion. Accordingly, it must be excluded.
D. Carpenter's opinion that there is no evidence Defendant manufactured evidence in this case, including causing damage to the Smallwood vehicle
Again, there is no supporting reasoning or evidence in regards to Carpenter's opinion that no evidence exists to show that Defendant manufactured evidence in this case. This appears to be pure speculation on the part of Carpenter. In addition, the existence or non-existence of evidence is not a proper basis for an expert opinion. Accordingly, this opinion must be excluded.
E. Carpenter's opinion that the intentional removal of smoke detectors is a frequent and perennial problem identified by the fire protection community since the introduction of smoke detectors in the residential setting
Carpenter is expected to testify that the Smallwoods had previously experienced "false alarms" from their smoke detectors, which is consistent with the removal of the smoke detectors. Like DeHaan's opinion as to the smoke detectors, this is speculation, and this opinion will be excluded.
III. Ms. Kristin Gerber
The government offers Gerber as an expert witness. At trial, Gerber would testify that the knife found inside the house created test tool marks that matched tool marks found in the tires on the vandalized vehicle. Accordingly, Gerber would testify that, to a reasonable degree of scientific certainty, the knife found inside the home was the knife that slashed the tires in question.
While this Court realizes that the "Tool Mark Identification" field encompasses firearms and tools, for the purposes of this opinion `tool marks' will refer to non-firearm related marks such as those made by knives, screw drivers and the like.
The Defense, however, vigorously contests this testimony. Two experts testifying for the defense attacked the underlying scientific reliability of tool mark testimony; however, neither were tool mark examiners so they were unable to contest the specifics of this particular identification. In contesting the underlying science, the defense witnesses contend that tool mark identification is not even science at all, but rather is a subjective, unreliable determination that can vary from examiner to examiner. The witnesses also contend that the studies done on knife identification are fraught with error and bias, which undermines any purported testing, peer review and error rates propounded by the government.
According to The Association of Firearm and Tool Mark Examiners ("AFTE"), a match is determined if a "specific set of [tool marks]" demonstrates "sufficient agreement" in "the pattern of two sets of marks." See National Research Council of the National Academies, Strengthening Forensic Science in the United States: A Path Forward (2009) (hereinafter " Strengthening"), pg. 153. Sufficient agreement must "exceed the best agreement demonstrated between tool marks known to have been produced by different tools and [be] consistent with the agreement demonstrated by tool marks known to have been produced by the same tool." Id. "AFTE standards acknowledge that these decisions involve subjective qualitative judgments . . . and that the accuracy of examiners' assessments is highly dependant on their skill and training." Id. (emphasis added). "The examiner is expected to draw on his or her own experience." Id. at 155. Even with new technology, "the decision of the [tool mark] examiner remains a subjective decision based on unarticulated standards[.]" Id. at 153-54.
By AFTE's own standard, there is no reliability in the instant case. While Gerber is most likely an expert in firearm identification, that expertise cannot be transferred to other marks. Gerber testified that her training in knives was limited to one class that did not solely cover knives, but rather "covered an array of different tools and marks." DN. 102, pg. 2-65. Gerber had only looked at knife marks in tires on one occasion prior to this case, during her aforementioned class. Id. at 2-68. By her own testimony, Gerber acknowledged that knife cases are rare in her lab, and that she has never testified in a knife case before. Id. at 2-49. Accordingly, Gerber does not have the skill and training in knives that she has in other identifications, the same skill and training on which the "accuracy of [an examiner's assessment] is highly dependent." Accordingly, under the AFTE standard, testimony by Gerber on knife marks would be inaccurate and therefore unreliable.
Another important consideration is that, at least in this case, the decision of Gerber could not be subject to any meaningful cross-examination. During the Daubert hearing, Defendant tried to cross-examine Gerber on her determination of the match. However, any time Defendant tried to draw into question the match based on the photographs provided to the defense and available at the Daubert hearing, Gerber would state that the photograph in question was "not a great photograph, which is why it's difficult to see from here." DN. 102, pg. 2-36. Accordingly, the match determination was effectively insulated from any meaningful cross-examination by the inability to produce photographs representative of what an examiner sees under the actual comparison microscope. Given that the Supreme Court requires "that reliability be assessed in a particular manner: by testing in the crucible of cross-examination," the inability to conduct meaningful cross-examination weighs strongly against admissibility. Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2536 (2009) ( citing Crawford v. Washington, 541 U.S. 36, 61-62 (2004)).
While this Court has different duties in determining the admissibility of hearsay and expert testimony, compare Fed.R.Evid. 702 with Fed.R.Evid. 802, the reliability ensured by cross-examination applies to both.
Despite this, the government suggests that every Federal court to consider firearms and tool marks has decided that they are admissible and that this Court should follow that precedent. However, all of the citations provided by the government involve firearm cases. Similarly, this Court's research has not revealed a single federal case ruling on the admissibility of knife identification specifically, or tool mark identification generally. There are important distinctions between firearm and tool mark identification and these distinctions tend to make tool mark identification particularly unreliable. As a result, this Court does not think that precedent in firearm identification is applicable to tool mark identification. While some state courts have considered the issue, the cases are sharply divided and largely predate the Supreme Court's decision in Daubert. See, e.g., Ramirez v. State, 542 So. 2d 352 (Fla. 1989) (excluding knife marks); State v. Churchill, 231 Kan. 408 (1982) (admitting knife marks); but cf., Ramirez v. State, 810 So. 2d 836 (Fla. 2001) (excluding knife marks after Daubert, but still applying Frye, per state law).
The first important distinction between tool marks and firearms is that while a firearm can generally only be used in one way, by pulling the trigger, a tool can be used in any number of ways, such as by slashing, stabbing, prying, or scraping. DN 104, pg. 3-21. In addition, once the method of use is selected, there are a number of additional variables that must be considered for tool marks, such as the pressure exerted on the tool and the angle at which the tool is used. Id. These variables are also not present in firearm identifications.
The second important distinction is that, given the subjective nature of firearm and tool mark identification, the relative frequency of firearm cases compared to tool mark cases — and knife cases in particular — necessarily makes a tool mark identification less reliable than a firearm identification. See DN 102, pg. 2-49 ("We don't typically see a lot of knife cases."). This goes directly to the "skill and experience" an examiner is "expected to draw on[.]" Strengthening, pg. 155. Ensuring that the agreement in question "exceed[s] the best agreement demonstrated between tool marks known to have been produced by different tools" when an examiner is basing the determination on limited exposure to said marks leads to unreliability. In addition, given that 25-29% of striae in a known non-match tool mark have been found to match up, compared to 15-20% of striae in a known non-match firearm, an examiner that frequently exams firearms may determine a tool mark match at a threshold of matching striae much lower than appropriate. DN 104, pg. 3-9 (referring to Butcher and Pugh, "A Study of Marks Made by Bolt Cutters" (1975) and Burd and Kirk, "On Toolmarks, Factors in their Comparison" (1942)).
Finally, also considering the subjective nature of identification, strides made in firearm identification such as the IBIS database have allowed the firearm identification field to make solid progress towards objectivity — tool mark identification has made no such similar progress. While the final determination of a match with firearms is always left to an examiner, the IBIS database can both help with the identification process and expose examiners to a variety of different markings, allowing them to "become more familiar with similarities in striation patterns made by different firearms." Strengthening, pg. 153. Without the exposure of a database, examiners are forced to rely solely on their own experiences and training. As already discussed, Gerber has limited experience and limited training in knife identification.
Rather than comparing tool mark identifications to the highly developed firearm identifications, this Court thinks the more relevant comparison is to the similarly controversial polygraph test. Given the varied testimony at the Daubert hearing and the conclusions related through the Strengthening report, there is "simply no consensus that [tool mark] evidence is reliable." United States v. Scheffer, 523 U.S. 303, 309 (1998) (discussing polygraph before alteration). Polygraph studies have shown widely varying error rates. Id. at 310. Showing even less reliability, the field of tool marks does not have enough studies, conducted to scientific standards, to give a "statistical foundation for estimation of error rates." Strengthening, pg. 154. Despite "advances in polygraph instrumentation and technique, questions continue to abound about the reliability of polygraph." United States v. Wright, 22 F. Supp. 2d 751, 754 (W.D. Tenn. 1998). This statement is almost identical to that contained in the Strengthening report — "Newer imaging techniques assess toolmarks using three-dimensional surface measurement data, taking into account the depth of the marks. But even with more training and experience using newer techniques, the decision of the toolmark examiner remains a subjective decision based on unarticulated standards[.]" Id. at 153-54. "Although the degree of reliability of polygraph evidence may depend upon a variety of identifiable factors, there is simply no way to know in a particular case whether a polygraph examiner's conclusion is accurate, because certain doubts and uncertainties plague even the best polygraph exams." Scheffer, 523 U.S. at 312. Testimony at the Daubert hearing demonstrated that these concerns are equally valid for tool mark identifications. Accordingly, similar to polygraphs, it is important for this Court to thoroughly examine the underlying reliability of a tool mark identification before allowing expert testimony at trial. See Wolfel v. Holbrook, 823 F.2d 970 (6th Cir. 1998). As discussed above, a thorough examination of the facts and science present in this case must lead to a finding of unreliability and exclusion.
This Court feels that it is once again important to distinguish that tool marks, for this opinion, do not include firearms. The body of work pertaining to firearms vastly exceeds that related to tool marks. Various courts have time and again found the firearm studies to be scientifically reliable, and this Court does not dispute that.
This is not to say that a tool mark identification could never be admissible. Given an appropriate amount of expertise in marks by a particular tool, an examiner may very well be able to make an identification with the amount of reliability required for a court of law. In addition, there was testimony that some examiners have tried to introduce a quantitative standard to supplant the current subjective standard. Testimony indicated that a run of six matching striae or two sets of three matching striae have never been found in a non-match. Such a method of identification may be reliable regardless of the experience of the examiner. However, these are not the issues currently before the Court.
In conclusion, Gerber does not have the "skill and experience" with knife marks to reliably make the required subjective determination. Accordingly, the motion to exclude her testimony is GRANTED.
CONCLUSION
For the foregoing reasons, the government's Motion to Exclude Testimony of Defense Expert Witnesses is GRANTED in part and DENIED in part as is consistent with this opinion. The Defendant's Motion to Exclude Testimony is GRANTED in part and DENIED in part as is consistent with this opinion.IT IS SO ORDERED.
October 12, 2010
Exhibit 1
FIRE-EX FORENSICS INC.
John D. DeHaan, Ph.D., FABC, CFI, FSSDip
Consulting Criminalist
PMB 314
3505 Sonoma Boulevard, #20
Vallejo, California 94590
707-643-4672
fax 707-643-4682
October 29, 2007
AUSA Marisa J. Ford
U.S. Attorney's Office
Western District of Kentucky
510 W. Broadway, 10th Floor
Louisville, KY 40202
Preliminary Report Re: Smallwood Fire, Fire-Ex File Number 07-1002
Summary:
Based upon the materials reviewed to date, it is the opinion of the undersigned that:
1. The burns to Mrs. Smallwood were not the result of being on the stairs of the structure and being chased by the flames as they extended up the stairs.
2. The burns were not the result of exposure to heat or flames after her escape.
3. The burns to Mrs. Smallwood were entirely consistent with those produced when someone ignites the vapors of gasoline or a similar ignitable liquid on a floor by application of an open flame.
4. The conditions she describes (absence of smoke and propagation of "blue" flames) would only exist for a second or two after ignition of flammable vapors.
5. The smoke detectors in the dwelling were intentionally removed before the fire.
6. The fire of May 29, 2007, was deliberately ignited using gasoline or a similar ignitable liquid poured through the living and dining rooms of the dwelling.
Evidence Examined:
The following materials have been received to date in the above case:
One sealed box was received via FedEx on October 4, 2007:
Case Binder: #1. Statements of Billi Jo Smallwood: #A: S.A. William Barker, Jr., Tennessee Bomb and Arson. #B: S.A. Kurt Thielhorn, ATF, Report #46. #C: S.A. James Dier, ATF, Report #34. #D: S.A. Kurt Thielhorn, ATF, Report #47. #E: S. A. Kurt Thielhorn, ATF, Report #52. #F: S. A. Kurt Thielhorn, ATF, Report #55. #G: S. A. Kurt Thielhorn, ATF, Report #58. #2. Statements of Wayne Smallwood: #A: S.A. James Dier, ATF, Report #26. #B: S.A. Kurt Thielhorn, ATF, Report #45. #C: S.A. Kurt Thielhorn, ATF, Report #57 #3. Miscellaneous interviews: Lt. Catherine Shin, dated 6/4/07. Capt. Boland, dated 6/19/07. #4. ATF reports on military police interviews. #5. Sworn statements of military police personnel. #6. Emergency room reports — Blanchfield Army Community Hospital (BACH), dated 5/29/07: #A: Sam Fagan. #B: Nevaeh Smallwood. #C: Billi Jo Lee Smallwood. #D: Wayne Norris Smallwood. #E: Rebekah J. Smallwood. #7. AFIP preliminary autopsy reports: #A: Sam Fagan. #B: Rebekah Smallwood. #8. Fire Investigation Report: Ft. Campbell Fire Dept., by Thomas Hurley, dated 6/19/07, with photo logs and witness statements. #9. ATF interviews of firefighters. #10. NFIRS report. #11. Autopsy reports: #A: Sam Fagan. #B: Rebekah Smallwood. #12. ATF Origin and Cause Report by S.A. Kurk Meuris, dated 7/19/07, 10 pp. #13. Army CID activity summary, 5/29/07 — 6/13/07. #14. Army CID reports, S.A. Amber Wojnar, 8 pp. #15. Hand-drawn diagrams of first floor rooms, by Billi Jo Smallwood. #16. Four CDs, labeled as: #A: "Fort Campbell fire victims." #B: "Fort Campbell fire crime scene photos." #C: "Billi Jo Smallwood, 4 images" — photos of burn injuries. #D: "Billi Jo Smallwood interview" — audio recording. One sealed box was received via FedEx on October 16, 2007: #17. Medical records: Billi Jo Smallwood — BACH and Vanderbilt Burn Center. Received via fax on October 24, 2007: #18. TBI lab report, by Laura J. Hodge, dated 6/7/07. #19. Floor plan of typical Lee Village 3-bedroom townhouse. AUSA Marisa Ford requested an examination on September 18, 2007, to evaluate potential mechanisms for the burn injuries to Ms. Smallwood.
Fire:
The fire of May 29, 2007, at Unit D, 4137 Dixie Road, Fort Campbell, Kentucky, did extensive damage to both the lower and upper floors of the unit. Unit D was one of six attached "townhouses" and consisted of a combined living room and dining room and a kitchen on the ground floor. A partially enclosed stairway on one side of the living room led to an upstairs hallway. This hallway offered access to a bathroom and a bedroom on one side, a second bedroom on the right, and a third bedroom at the end of the hall. The unit was occupied at the time by SPC Wayne Smallwood, Billi Jo Smallwood, daughters Rebekah and Nevaeh, and Mrs. Smallwood's son, Sam Fagan.Mrs. Smallwood reported finding the fire growing rapidly in the living room when she came partially down the stairs to investigate a noise. She reported the fire following a trail and extending up the stairs forcing her to retreat upstairs. She reportedly attempted to awaken her husband, daughters and son and fled through a bedroom window to the attached patio roof at the rear of the dwelling with the infant daughter, Nevaeh. Heat and smoke forced Wayne Smallwood to flee from another bedroom via a window (forcing a window air conditioner out to do so). The infant (Nevaeh) survived with only minor injuries. The two older children died. Sam Fagan was found during search and rescue operations on the floor of his bedroom (where Mrs. Smallwood had made her escape). He died during medical treatment. Rebekah Smallwood was found (deceased) on the bed in the second bedroom (from where Mr. Smallwood had made his escape).
The fire was first reported at 0133 hours by Mrs. Torres (a neighbor at 4137-C). The fire department was reported on scene at 0136 hours and found both floors well involved. Entry was made via a large front window in the living room. Heavy fire, heat and smoke conditions were seen in the living room and on the stairs. Both front and rear entry doors were found closed, and post-fire investigators determined that both had been latched and security-chained from within. The fire was reportedly controlled by 0203 hours. The ceiling was reportedly collapsing in the stairwell prior to control.
Investigation:
The scene was investigated by representatives of the Fort Campbell Fire Department (Item #8) and ATF (Item #12). The scene was photographically documented prior to and during the scene examinations. The Fort Campbell investigators concluded that the fire began in the southwest corner of the "first floor north room" (living room). In that area were found a couch, table and answering machine. The nearest electrical receptacle was examined and failure in it was eliminated as an ignition source. Those investigators suspended their scene investigation pending the arrival of assistance from other agencies. The ATF report concluded that the fire was ignited in the living room and dining room using an ignitable liquid. Samples of floor covering and other samples were recovered, and laboratory testing confirmed the presence of a volatile ignitable liquid similar to gasoline (Item #18).
Injuries:
The medical records for Mrs. Smallwood (Items #6C and #17) and photographs (Item #16C) revealed that she sustained second and third degree burns to the fronts and sides of both lower legs), the tops of both feet, and the front of her right forearm. She also had singed nasal hair, eyebrows, and hair around the forehead, and reddening of her face, neck and upper chest (first degree burns). She reportedly had soot around her mouth but no soot in her mouth. There were no reports of breathing difficulty or internal burn injuries. There was apparently no COHb measurement made of her blood on admission.
The burns to the tops of both feet showed signs of demarcation where the toes, sides and soles of the feet were protected (less so on the left foot where the tops of two of the toes were burned). This protection would be the result of wearing a pull-on slipper or similar footwear when exposed to radiant heat. She was reported to have been wearing only shorts and a T-shirt when admitted to BACH. The burns to her right leg extended from the top of the instep to the kneecap. The burns to the left leg extended from the instep to an area above the knee. These burns involved the sides of the calf of each leg but not the posterior surface. There was an estimate of 16% of total body surface area (TBSA) of burn involvement. These burns required skin grafts over some areas, so some portions were full thickness (third degree) burns.
Analysis:
Mrs. Smallwood reportedly was chased up the stairs by a fire rapidly advancing across the floor and up the stairs. Had this occurred, the predominant burns would have been to the "backs" of her legs, not to the front areas, and would not have burned the tops of both feet. While awaiting rescue, she reportedly had her legs extended over the edge of the patio roof. The heat and smoke damage above the windows under that roof indicated only modest emission of hot gases. The patio roof was also steeply pitched downward and ran continuously the length of the six-unit block. There would not have been sufficient heat flowing outward from under the roof eave (as a balcony plume) to induce injury to exposed skin. In any event, such injury would have been incurred on the backs of the legs, not the front. Mrs. Smallwood also claimed she attempted re-entry through the bedroom window from which she escaped but was driven back by the smoke and heat. While such exposure could account for the first degree burns on her face, neck and chest, the heat would be accompanied by intense smoke. Very little smoke was observed on her when she was rescued, and there were no reports of breathing difficulties detected during emergency room treatment. There was no medical assessment of the burns reported on the front of her right forearm. It appears they were relatively limited second degree burns that healed normally.
Second and third degree burns to the lower extremities are commonly observed when a person is standing near or walking through vapors of flammable liquids as they burn. The radiant heat (and convected heat if actual flame contact occurs) can induce second degree skin burns (sloughing of skin, blistering) within 3-4 seconds of exposure. The appearance of third degree burns usually requires a longer time of contact (5 seconds or longer). The presence of such burns predominantly only on one side (i.e., not circumferential — not all the way around the leg) is observed when the person is facing the fire rather than walking through it.
The appearance of burns to lower extremities (fronts), one or both forearms (forward or inside) or hands and the face is observed most often when the burn victim has been responsible for actually igniting a volume of flammable gas or vapor with a hand-held source such as a match, lighter or candle.
When poured onto a flat floor, ignitable liquids quickly form a shallow layer of vapor at floor level which deepens slowly with time (or more quickly with mechanical stirring). (All vapors of ignitable liquids are considerably heavier than air.) When such a layer is ignited the flame front moves quickly through the vapors mixed with air (up to 10' per second) and produces a very short-lived blue fringe at the flame front. This blue-colored flame dies away in a second or two and the flames assume their normal yellow-orange color as the liquid fuel on the floor evaporates to sustain a pool fire. Mrs. Smallwood reported seeing blue flames during the spread of the fire in the living room and up the stairs toward her. This observation, if accurate, could only have been made during the first second or two of fire spread through fuel vapors.
Mrs. Smallwood also reported that she did not proceed all the way to the bottom of the stairs and was burned when the fire extended up the stairs to her feet. Examination of the scene failed to reveal any ignitable liquid residues on the remains of the stairs but did reveal residues of a "gasoline range" ignitable liquid in several areas of the living room and dining room carpet. These findings would indicate that she was not on the stairs but in the living room when the fire started.
It should be noted that as a room fire grows, radiant heat from the smoke layer can eventually cause ignition of carpet and flooring even where no ignitable liquid was poured. By the time this occurs, however, the smoke layer is normally very deep (3-5' from the ceiling) and very hot (700-800°F). Exposure to such conditions would cause severe burns and smoke inhalation to an unprotected adult standing up in the room. Mrs. Smallwood exhibited no severe smoke or thermal exposure to her upper body. She, in fact, reported that when she descended the stairs she neither saw nor smelled any smoke. This condition would only occur prior to ignition or for a few seconds after ignition of a sizable fire in the living room of such a dwelling.
The unit was reportedly fitted with two hard-wired smoke detectors (unknown type). The mounting plates and wires for both were found during scene examination, but the dining room unit was found disconnected and placed on the child's high chair. The second unit was never found. Such units, if in place during a fire, will usually have the melted plastic housing adhering to the wires. These findings strongly suggest that both units were removed intentionally before the fire.
Conclusions:
Based upon the materials reviewed to date, it is the opinion of the undersigned that:
1. The burns to Mrs. Smallwood were not the result of being on the stairs of the structure and being chased by the flames as they extended up the stairs.
2. The burns were not the result of exposure to heat or flames after her escape.
3. The burns to Mrs. Smallwood were entirely consistent with those produced when someone ignites the vapors of gasoline or a similar ignitable liquid on a floor by application of an open flame.
4. The conditions she describes (absence of smoke and propagation of "blue" flames) would only exist for a second or two after ignition of flammable vapors.
5. The smoke detectors in the dwelling were intentionally removed prior to the fire.
6. The fire of May 29, 2007, was deliberately ignited using gasoline or a similar ignitable liquid spread in the living and dining rooms of the dwelling.
These conclusions are based on review of the materials submitted to date and reliable published data, as well as extensive personal knowledge of laboratory analysis, fire dynamics, ignition processes, flame spread, fire growth, smoke production, and fire indicators. They are expressed to a reasonable degree of scientific certainty. If additional information becomes available that has a bearing on these conclusions, these conclusions will be amended or supplemented appropriately.
Disposition:
The materials submitted will be retained pending further requests.
/s/ John D. DeHaan, Ph.D.
Dr. John D. DeHaan, President
Fire-Ex Forensics, Inc.
Fellow, American Board of Criminalistics (Fire Debris)
Fellow, American Academy of Forensic Sciences
Fellow, Forensic Science Society (U.K.)
Member, California Association of Criminalists
Member, National Fire Protection Association
Member, Institution of Fire Engineers
Member, American Society for Testing and Materials (E30)
Certified Fire Investigator, International Association of Arson Investigators
Certified Fire and Explosion Investigator, National Association of Fire Investigators
Diploma in Fire Investigation, Forensic Science Society (U.K.)
Diploma in Fire Investigation, Institution of Fire Engineers (U.K.)
Consultant Services in the Investigation and Reconstruction of Fires and Explosions, Case Review, Quality Assurance, and Training
Exhibit 2 August 30, 2010
Marisa Ford, Esq.James Lesousky, Esq.
Assistant United States Attorney
510 West Broadway
Louisville, Ky. 40206
Re: U.S. v. Smallwood: 5:08CR-38-R
Dear Marisa and Jim:
Enclosed is the curriculum vitae of Dr. Doug Carpenter.
Mr. Carpenter is expected to testify regarding the fire as follows.
Mr. Carpenter is expected to testify that the cause of the fire that occurred on May 29, 2007 at 4137 Dixie Road, Apartment D, Fort Campbell, KY is entirely consistent with the intentional ignition of an ignitable liquid introduced into the first floor of the apartment at the time of the incident. Thus, the classification of the fire cause is arson.
Mr. Carpenter is expected to testify that "at issue" in this case is who introduced the ignitable liquid and intentionally ignited the fire on the first floor of the Smallwood's apartment. There are two competing hypotheses, 1) Mrs. Smallwood intentionally initiated this fire while located in the living room, and 2) Someone else intentionally initiated this fire just before Mrs. Smallwood arrived at the lower portion of the stairs.
Mr. Carpenter is expected to testify that Billi Jo Smallwood's burns to her lower legs received during the fire incident of May 29, 2007 are entirely consistent with the hypothesis that she was located on the stairs when she received those thermal injuries. Ignitable liquids were found on the floor directly in front of the stairs from the second floor. The ignition of the vapors from the ignitable liquids located at the base of the stairs from the flames spreading towards the stairs from the living room would allow flames to be transported part way up the stairs due to thermal expansion and buoyancy. Contact of the expanding flames up the stairs with bare human skin would produce instantaneous second degree bums on the front and sides, but not on the back of her legs, which is entirely consistent with the burn injuries on her lower body experience by Billi Jo Smallwood in this fire.
Mr. Carpenter is also expected to testify that due to the speed of the flames across the ignitable liquid (on the order of 10 feet per second) and the distance from the living room to the stairs (approximately 20 feet), the flames would have reached Billi Jo Smallwood's position on the stairs in less than two (2) seconds from the time she first observed the rapidly advancing flames in the living room. This time interval would not provide sufficient time for Mrs. Small wood to be able to react and move out of the way of the expanding flames at the lower portion of the stairs. This is entirely consistent with Billi Jo Smallwood's observations of the flames, the behavior of the fire, and the burns to the front and sides of her lower legs that were actually experienced in this fire.
Billi Jo Smallwood's burns to her lower legs received during the fire are totally inconsistent with the hypothesis that she was located in the living room at the time of ignition of the introduced ignitable liquids into the first floor of the apartment. Mrs. Smallwood was both observed by eyewitnesses as having been located in the upstairs hallway as well as on the lower roof at the same elevation as the second floor of the apartment after the initiation of the fire. Had Mrs. Smallwood been located in the living room at the time of ignition of the ignitable liquid, she would have had to traverse or "walk through" the fire in the living room and bottom of the stairs to reach the second floor. The burns that would be experienced by Billi Jo Smallwood by traversing the ignitable liquid fire in the living room would produce circumferential burns, (i.e. burns around her entire legs) to her legs, which is totally inconsistent with the burn injuries she actually experienced in this fire.
Mr. Carpenter is expected to testify that Billi Jo Smallwood's thermal injuries to her upper body including her forearm, upper chest, face and singed hair received during the fire incident of May 29, 2007 are entirely consistent with the hypothesis that she was trying to rescue her children once she was on the lower roof of the apartment building and trying to regain entrance to the apartment through a second story window. Billi Jo Smallwood was holding her youngest child while on the lower roof and since she was right-handed, she would have carried her baby in her left arm and used her right arm to attempt to reenter the apartment from the lower roof through a second story window. In addition, the soot on her face, but not in her airway, thermal injuries to her upper body, and singed hair is also entirely consistent with this action since she would naturally hold her breath when she put her head close to or through the window and exposing her face to hot, sooty smoke produced by the fire within the apartment, but not breathing in soot laden smoke.
Mr. Carpenter is also expected to testify Billi Jo Smallwood's observations of the spread of the fire across the living room floor as observed from the lower portion of the stairs isentirely consistent with her being located on the lower portion of the stairs just after the time of ignition of the ignitable liquid with a point of ignition located remote from the stairs.
The open window in the dining room would have provided access for a person to introduce a ignitable liquid and a source of ignition into the first floor of the apartment. The direction of flame spread on the ignitable liquid in the first floor would then be from the dining room towards the stairs, which isentirely consistent with the observations of, and the thermal burns to her lower legs actually experienced by Billi Jo Smallwood in this fire incident.
Mr. Carpenter is expected to testify that the time frame for Billi Jo Smallwood's observation of the initial fire is entirely consistent with hearing noise caused by a person introducing ignitable liquid into the first floor of the Smallwood's apartment and giving her time to react to the sound and get down the stairs to witness the rapidly advancing blue flame across the living room floor towards the stairs.
Mr. Carpenter is also expected to testify that there is no evidence to support the opinion that Mrs. Smallwood was responsible for manufacturing the circumstantial evidence in this case including the damage to the Smallwood's automobile. In addition, the removal of the smoke detectors from their installed location has been used to imply that this fire was a premeditated act of arson by Mrs. Smallwood. The intentional removal of residential smoke detectors by occupants due to "false alarms" is a frequent and perennial problem identified by the fire protection community since the introduction of smoke detectors in the residential setting. The Smallwoods have made statements that they have previously experienced "false alarms", which isentirely consistent with the removal of the smoke detectors. In addition, there is no evidence as to when the smoke detectors were removed with respect to the time frame of this fire incident. The implication is that the detectors were removed just prior to the fire, for which there is no supporting evidence. The lack of supporting evidence makes such opinions unfounded assertions or speculation and thus, unreliable.
NFPA, 921, Guide for Fire and Explosion Investigations, National Fire Protection Association, Quincy, MA 2008, is considered the recognized standard of care with respect to conducting fire investigations, NFPA 921, recommends the use of the Scientific Method as the appropriate methodology that is used in the physical sciences and provides for the organizational and analytical process desirable and necessary in a successful fire investigation. The Scientific Method is a principle of inquiry that forms a basis for legitimate scientific and engineering processes including fire incident investigation.
The Scientific Method is applied to the investigation of fire and explosion incidents using the following steps: Recognize the Problem, Define the Problem, Collect Data, Analyze the Data, Develop a Hypothesis, and Test the Hypothesis. Testing of the hypothesis is done by the principle of deductive reasoning, in which the investigator compares his or her hypothesis to all of the known facts as well as the body of scientific knowledge associated with the phenomenon relevant to the specific incident. The process of testing hypotheses needs to be continued until all feasible hypotheses have been tested and one is determined to be uniquely consistent with the facts, and with the principles of science. If no hypothesis can withstand an examination by deductive reasoning, the issue should be considered undetermined;
Mr. Carpenter will testify that in his analysis of this fire incident, Dr. John DeHaan violates the Scientific Method, which results in the use of a scientifically unreliable methodology. The use of a scientifically unreliable methodology will producescientifically unreliable opinions. Dr. DeHaan violates the Scientific Method in three distinct ways, 1) by not developing and testing all of the feasible hypotheses in this case, 2) by not testing all of the feasible hypotheses against all of the known facts, and 3) by not testing all of the feasible hypotheses against the body of scientific knowledge associated with the phenomenon relevant to the specific incident.
Mr. Carpenter will also testify that with respect to Dr. DeHaan not developing and testing all of the feasible hypotheses, his development of the hypotheses in this case are fatally flawed by way of introduction of assumptions or speculation that are not based on facts in evidence. For example, Dr. DeHaan assumes that the burns to Mrs. Smallwood's lower body and upper body occurred at the same point in time and at the same location in the house. There is no evidence to support such an assumption or speculation. The reliable use of the Scientific Method dictates that any supportable and valid hypothesis must be able to predict the outcome of the incident. In fact, the assumption that the burns to Mrs. Smallwood's lower body and upper body occurred at the same point in time and at the same location produces a hypothesis that does not predict the outcome that Mrs. Smallwood would have experience soot deposition to her face. In addition, Dr. DeHaan narrowly develops the hypotheses based on Mrs. Smallwood's account of the fire by assuming or speculating that she is physically being "chased" by the fire up the stairs. The development of all feasible hypotheses should have included the hypothesis that she was standing on the stairs facing the fire and watching the flames advance toward her across the living room floor when she got burned. This narrowly focused hypothesis on being "chased" by the fire allows Dr. DeHaan to opine that her statement is inconsistent with the physical evidence associated with the burns to her lower legs. This is at the expense of developing and testing a hypothesis that she was on the stairs and received the burns to her lower legs almost at the instant she observed the flames on the living room floor rapidly advancing towards the stairs where she was standing. Thus, Dr. DeHaan fails to examine the hypothesis that she was on the stairs facing the advancing blue flame and that she would not have had sufficient time to react and move away from the flames based on the reliable scientific knowledge of flame speeds associated with the burning of ignitable liquids. This hypothesis that she was facing the advancing flames on her lower steps is, in fact,entirely consistent with her lower body burns.
Mr. Carpenter will testify that with respect to Dr. DeHaan not testing all of the feasible hypotheses against all of the known facts, a proper and reliable methodology using the Scientific Method would be to test all of the feasible hypotheses against the same known facts of the case. The available and relevant data include the location and type of thermal injuries sustained by Billi Jo Smallwood and her statements as to her stated actions and observations of the fire incident. Had Dr. DeHaan tested all the feasible hypotheses against all of the known facts of the case he would have found that the burn injuries to her lower body, the observation of flames spreading towards her location, and the time of her stated actions are totally consistent with the hypothesis that someone else intentionally initiated this fire just before Mrs. Smallwood arrived at the lower portion of the stairs. Furthermore, Dr. DeHaan would have also have found that the burn injuries to her lower body, the observation of flames spreading towards her location, and the time frame of her stated actions are completely inconsistent with the hypothesis that Mrs. Smallwood intentionally initiated this fire while located n the living room, as previously discussed. Thus, the most probable and supportable hypothesis is that someone else, other than Billi Jo Smallwood, intentionally initiated this fire.
Mr. Carpenter will also testify that with respect to Dr. DeHaan not testing all of the feasible hypotheses against the body of scientific knowledge associated with the phenomenon relevant to the specific incident, Dr. DeHaan's analysis ignores the thermal expansion and buoyancy of flames that would occur as a result of the ignition of the vapors from ignitable liquid present on the floor at the base of the stairs when ignited by the rapidly advancing flames from the living room towards the stairs. The thermal expansion and buoyancy of the flames would expose the lower portion of the stairs to flames. This phenomenon is consistent with Dr. DeHaan's grand jury testimony (page 29) and his own published paper that the rapidly advancing flames pushes the unburned vapors ahead of it that could "wash" the flames onto the stairs.
Mr. Carpenter will testify that Dr. DeHaan's analysis ignores this phenomenon by making the "straw man" argument that the only way for Mrs. Smallwood to have received the burns to her lower body would be for there to have been ignitable liquids present on the stairs. Dr. DeHaan then states in his report that examination of the fire scene failed to reveal any ignitable liquid residues on the remains of the stairs. This "straw man" argument allows Dr. DeHaan to opine that Mrs. Smallwood could not have received the thermal burns to her lower body while on the stairs, which is inconsistent with her account of her actions and observations during the fire, as previously discussed. Since the known facts and the relevant phenomenon does not require the presence of ignitable liquids on the stairs for Mrs. Smallwood to receive her burn injuries to her lower legs, Dr. DeHaan is disingenuous in his statement that the examination of the fire scene failed to reveal any ignitable liquid residues on the remains of the stairs. During the fire scene investigation, no samples were taken from the remains of the stairs, thus, there would have been no analysis of any samples taken from the remains of the stairs that would provide evidence, for or against, the presence of ignitable liquid on the stairs.
Mr. Carpenter will also testify that based on his violations of the Scientific Method, Dr. DeHaan used a scientificallyunreliable methodology that results in scientifically unreliable opinions in this case.
Mr. Carpenter will also testify that based on a scientifically reliable analysis of this fire using the Scientific Method, it is his opinion that the known facts of this case and the relevant body of scientific knowledge is uniquely consistent with the hypothesis that someone else intentionally initiated this fire just before Mrs. Smallwood arrived at the lower portion of the stairs and completely inconsistent with the hypothesis that Mrs. Smallwood intentionally initiated this fire while located in the living room.
Investigation and evaluation by this expert is continuing and this disclosures may be amended as appropriate.
Sincerely,
Laura R. Wyrosdick
Rob Eggert
Combustion
Science Engineering, Inc.
8940 Old Annapolis Road • Suite L • Columbia • MD • 21045-2129 • Tel: 410/884-3266 • Fax: 410/884-3267
DOUGLAS J. CARPENTER, MScFPE, CFEI, PE
EDUCATION:
M.S., Fire Protection Engineering, Worcester Polytechnic Institute, Worcester, MA, 1996.
B.S., Mechanical Engineering, University of Vermont, Burlington, VT, 1992.
A.S., Mechanical Engineering, Vermont Technical College, Randolph Center, VT, 1984.
THESIS:
Carpenter, D. J., "An Investigation into the Validity of Modeling Post-Flashover Fires and Flame Extension from Openings with the Fire Field Model JASMINE", Worcester Polytechnic Institute, August 1996.
PROFESSIONAL EXPERIENCE:
Research Assistant Professor, Department of Fire Protection Engineering, Worcester Polytechnic Institute, Worcester, MA, 2009 to present. Appointment for research collaboration with faculty in the area of fire protection engineering.
Vice President and Principal Engineer, Combustion Science Engineering, Inc., Columbia, MD, 1998 to present.
Responsibilities include fire investigations, fire reconstruction analyses, and performing fire hazard analyses utilizing computer fire modeling including both zone models and Computational Fluid Dynamics (CFD). Applied quantitative and performance-based fire hazard analysis skills to a wide range of projects including nuclear production reactors and facilities at DOE's Savannah River Site, building atria, manufacturing operations, transportation vehicles, airports, as well as United States research facilities and airport operations in Antarctica. Developed a flame-spread model for use in a CFD model of burning vehicles. Developed and taught classes and seminars in fire investigation, performance-based fire safety design, and computer fire modeling for such organizations as the Society of Fire Protection Engineers (SFPE) and the International Council of Building Officials (ICBO). Panel Member for Nuclear Regulatory Commission's PIRT (Phenomenon Identification Ranking Table) review process associated with computer fire modeling in the commercial nuclear environment.
Staff Engineer, Hughes Associates, Inc., Baltimore, MD, 1996 to 1998.
Conducted in-house cone calorimeter tests for code equivalency evaluations and fire litigation support. Performed. fire hazard analysis for military aircraft hush houses to determine technical requirements for alternative suppression system to existing Halon 1301 systems. Performed a review of fire hazards and fire suppression system options for the Halifax Class frigates of the Canadian Navy. Developed a computer program for the military evaluating alternative systems for existing Halon 1301 systems. Performed a comprehensive evaluation of the military's current Halon 1211 replacement program. Conducted on-scene fire investigations and computer fire modeling in support of fire litigation work. Conducted experiments that mapped the heat flux of Halogen Torchiere Lamps for development of a model to determine ignition potential of adjacent combustibles.Fire Protection Engineer, Office of Polar Programs, National Science Foundation, Arlington, VA, 1995-1996. Assisted engineers in examining fire protection engineering issues associated with Amundsen-Scott South Pole, McMurdo, and Palmer Stations in Antarctica. Projects emphasized equivalent levels of protection for fire hazards and life safety using a systems and performance-based engineering approach in this unique and challenging environment. Actively involved with the fire protection specification and design for the proposed new research station at the South Pole as part of the South Pole Redevelopment Project (SPRP). Conducted a fire risk assessment of buildings in McMurdo Station, which included computer fire modeling. Conducted on-site visits of McMurdo and Amundsen-Scott South Pole Station.
Fire Protection Engineer, ABASCO Services, Inc., Augusta, GA, 1993.
Fire Protection Engineer, MBS Fire Technology, Inc., Worcester, MA, 1993.
Six-month graduate internship. Responsible for developing a framework for an alternative methodology to the average combustible loading method for fire barrier analysis. Reviewed and provided written critique for proposed on-site work connected with fire protection at the Department of Energy's Savannah River Site.
Six-month graduate internship. Part of a team responsible for writing a revision of a fire hazard analysis for a nuclear production reactor using a performance-based approach. Provided recommendations for alternative methods to using Halon 130] for fire protection within the reactor environment. Reviewed and provided written critique for proposed on-site work connected with fire protection at the Department of Energy's Savannah River Site.
Professional Engineer (P.E.), State of Maryland, License No, 32633.
HONORS:
Antarctic Service Medal of the United States of America, May, 1999.
Salamander Honorary Fire Protection Engineering Society May 1995.
Campus Safety Association Scholarship Award, May 1995.
Percy Bugbee Fire Protection Engineering Scholarship, May 1995.
M M Protection Consultants Scholarship, May 1994.
Deans List at University of Vermont: Fall 1988, 1991, Spring 1992.
PROFESSIONAL MEMBERSHIP:
Member, International Association for Fire Safety Science (IAFSS)
Member, National Fire Protection Association (NFPA)
Member, Society of Fire Protection Engineers (SFPE)
Member, National Association of Fire Investigators (NAFI)
Member, International Association of Arson Investigators (IAAI)
Member, DC/MD Chapter, International Association of Arson Investigators
Member, American Society of Mechanical Engineers (ASME)
Member, American Society of Testing and Materials (ASTM)
Member, Building Officials Code Administration (BOCA)
Member, NFPA 92B Task Group, 1998
Member, SFPE Task Group on Computer Model Evaluation, 1998-present.
Member, SFPE Educational Committee, 1999 — present.
Member, IAAI Fire Arson Investigator Editorial Review Board, 2006 — present.
Alternate Member, NFPA 921, Guide for Fire and Explosion Investigations, 2000 — present.
Associate Member, Engineering Sciences, American Academy of Forensic Sciences (AAFS), 2006
Member, Arson Review Committee (ARC), The Innocence Project, NYC, 2005 — present.
PROFESSIONAL BOARD MEMBERSHIP:
Member, Board of Advisors, Fire Protection Engineering Department, WPI, 2009 — present.
Member, IAAI Fire Arson Investigator Editorial Review Board, 2006 — present.
CONTINUING EDUCATION:
FPE 580L "Case Studies in Fire Safety Engineering Science", Worcester Polytechnic Institute, Advanced Distance Learning Network (ADLN), 16-week course, Instructor: Dr. Patrick J. Pagni, University of California at Berkley, Fall, 2000.
"Smoke Management for Atria and Other Large Spaces", one-day course sponsored by the Society of Fire Protection Engineers (SFPE), and American Society of Heating, Refrigerating, and Air-Conditioning Engineers (ASHRAE), Baltimore, MD, October 6, 2000.
INSTRUCTOR:
"Advanced Fire Dynamics", Adjunct Lecturer for graduate level distance learning course for the Department of Fire Protection Engineering at the University of Maryland, December 2004 — present.
"Introduction to Fire Modeling", two-day course sponsored by the Society of Fire Protection Engineers (SFPE), Atlanta, GA, November 12-13, 1998; Baltimore, MD May 13-14, 1999, Baltimore, MD October 2 — 3, 2000, Idaho Falls, Idaho, May 7 — 8, 2002.
"Introduction to Fire Modeling", one-day course sponsored by the International Fire Code Institute (IFCI), the International Conference of Building Officials (ICBO), and the Society of Fire Protection Engineers (SFPE), St. Paul, MI, November 17 19, 1998; Tacoma, WA, January 28, 1999.
"Engineering Design Alternatives", one-day course sponsored by the International Fire Code Institute (IFCI), the International Conference of Building Officials (ICBO), and the Society of Fire Protection Engineers (SFPE), Tacoma, WA, January 29, 1999; Dallas, TX, April 7, 1999.
"The Fire Safety Engineering Method", five-day course sponsored by Canadian Association of Building Code Officials, Winnipeg, Canada, May 30th — June 4th, 1999.
"Advanced Computer Fire Modeling", two-day course sponsored by the Society of Fire Protection Engineers (SFPE), New Orleans, LA, November 11 — 12, 1999; Baltimore, MD, October 4 — 5, 2000, Santa Fe, NM, March 14 — 15, 2002.
"Introduction to Fire Dynamics Simulator (FDS) and Smokeview", three-day course sponsored by the Society of Fire Protection Engineers (SFPE), Baltimore/Washington, September 16 — 18, 2002, Las Vegas, March 23 — 25, 2004, Chicago, September 21-23, 2004, Hawaii, February 1-3, 2005, Chicago, August 14-16, 2006.
"Advanced Fire Dynamics Simulator (FDS) and Smokeview", three-day course sponsored by the Society of Fire Protection Engineers (SFPE), San Diego, October 19 — 21, 2005, Baltimore, October 18 — 20, 2006, Las Vegas, October 16 — 19, 2007, Charlotte, NC, October 15-17, 2008, Scottsdale, AZ, October 21 — 23, 2009.
SELECTED PUBLICATIONS AND PRESENTATIONS:
Presentations (Non-Peer Reviewed):
Felthous, A. R., Weinstock, R., Carpenter, D. J., Martell, D. A., Oxley, J. C., Shefchick, T. P., Ubelacker, D., Warnick, A. J., Lentini, J., Yang, S., and Upshaw Downs, J. C., "Fires and Explosions: A Multidisaplineary Overview of Investigative Methods, mental States of Perpetrators, and Psychological Trauma to Victims," W17, American Academy of Forensic Sciences, Annual Meeting, Seattle, Washington, February 22-27, 2010.
Dubs, L. A. and Carpenter, D. J., " Forensic Science (Arson): Talisman or Trickery?," Seminar, North Carolina Advocates for Justice, Raleigh, NC, April 16, 2010.
Carpenter, D., Warnick, A., Ubelacker, D., and Martell, D, " Forensic Sampler: Firesetting and Bombing," 40th Meeting of the American Academy of Psychiatry and the Law, Baltimore, MD, October 29th — November 1, 2009.
Carpenter, D., " Practical Application of Fundamental Knowledge in Fire and Explosion Investigations," Canadian National Advanced Fire, Arson and Explosion Investigation Training Program, Toronto, Canada, October 29th, 2009.
Carpenter, D. J., " The Forensic Model," Session 4: The Real World — What Do We Actually Do with Fire Models?, Fire Modeling Workshop, National Institute of Standards and Technology (NIST), Gaithersburg, MD, Wednesday, April 29, 2009.
Carpenter, D. J., and McAllister, J. M., " Practical Application of Engineering Principals," International Association of Arson Investigators, 59th Annual Training Conference, Denver, Colorado, April 27 — May 2, 2008.
Stauffer, E., Byron, D. E., and Carpenter, D. J., "Analysis of Vegetable and Animal Oil Residues From Fire Debris Samples," W17, American Academy of Forensic Sciences, Annual Meeting, San Antonio, Texas, February 19-24, 2007.
Cummings, W. M., and Carpenter, D. J., " Performance-Based Analysis of ARFF Requirements at USAP Airfields," American Society of Civil Engineers (ASCE), Cold Regions Engineering Conference, Anchorage, AK, May 22, 2002.
Carpenter, D. J., Zhang, W., Roby, R. J., " Fire Dynamics Simulator (FDS)," National Institute of Standards and Technology, Seminar, November 19, 2002.
Carpenter, D. J., " Fire Protection in Antarctica," presented to the Chesapeake Chapter of the Society of Fire Protection Engineers, College Park, Maryland, April 30, 1998; New England Chapter of the Society of Fire Protection Engineers, Boston, MA, February 7, 2000.
Watts, J. M., Jr., and Carpenter, D. J., " Fire Dynamics and Fire Modeling Human Behavior in Fire and Performance-Based Fire Safety Evaluation", State of Vermont, Department of Labor, Rutland, VT, January 31st, 2000.
West, L. E., Reiter, D. A., and Carpenter, D. J., " Forensic Fire Investigation", The 2000 Claims Conference, Professional Loss Research Bureau (PLRB), Chicago, IL, March 26 — 29, 2000.
Carpenter, D. J., " The Use of Quantitative Tools in Fire Investigation," presented to the Vermont Chapter of the International Association of Arson Investigators, Randolph Center, VT, December 3, 1998; New Jersey Chapter of the International Association of Arson Investigators, Morristown, NJ, June 18, 1999.
Carpenter, D. J., Beller, D., and Sapochetti, J., " Using the "Scientific Method" in the Analysis of the Cause and Origin of the Fire at the Cococnut Grove: Development of a New Hypothesis", NFPA World Fire Safety Congress and Exposition, Baltimore, MD, May 16-20, 1999.
Carpenter, D. J., and Roby, R. J., " Advanced Investigation and Technology: Application and Presentation of Fire Modeling in Arson Investigations," presented to the National Society of Professional Insurance Investigators 1999 Advanced Insurance Fraud Seminar, Cincinnati, OH, November 11, 1999.
Carpenter, D. J. and Hamer, A. J., " The Modeling of Experimental Compartment Fires Using Computational Fluid Dynamics," presented at the 1998 STAR-CD North America User's Conference, Detroit, MI, May 19-20, 1998.
Conference Poster Sessions (Editorially Reviewed):
Carpenter, D. J., and DiNenno, P. J., " Halon Alternative Selection Tool Software", Proceedings of the Halon Alternatives Technical Working Conference, May 6-8, 1997, Albuquerque, NM.
Carpenter, D. J., and Barnett, J. R., " The Modeling of Fire Tests Conducted at the National Research Council of Canada Using the Fire Field Model JASMINE," presented at the International Conference on Fire Research and Engineering, Orlando, FL, September 10-15, 1995.
Conference Papers (Editorially Reviewed):
Carpenter, D. J., Roby, R. J., and Torero, J. L., " The Use of Toxicity Data in the Reconstruction and Analysis of Fires," Proceedings of the 2nd International Symposium on Fire Investigation Science and Technology, National Association of Fire Investigators, University of Cincinnati, June 28 — 30, 2006.
Carpenter, D. J., Roby, R. J., and Torero, J. L., " Training vs. Education: The Case for the Development of a National Curriculum for Fire Investigators," Proceedings of the 2nd International Symposium on Fire Investigation Science and Technology, National Association of Fire Investigators, University of Cincinnati, June 28 — 30, 2006.
Ferrino-McAllister, J, L., Carpenter, D. J., and Roby, R, J., "Comparison of Gasoline Weathering on Carpet Samples Exposed to Various Thermal Environments," Proceedings of the 2nd International Symposium on Fire Investigation Science and Technology, National Association of Fire Investigators, University of Cincinnati, June 28 — 30, 2006.
Sutula, J. A., Carpenter, D. J., Anderson, J., and Cometto, A., "The Use of Animation as an Aid in the Presentation of Results of Computational Fluid Dynamics Modeling in Fire Reconstruction Analysis," Proceedings of the 2nd International Symposium on Fire Investigation Science and Technology, National Association of Fire Investigators, University of Cincinnati, June 28 — 30, 2006.
Carpenter, D.J., and Cummings, W., " Performance-Based Analysis of ARFF Requirements for Air-Fields at McMurdo and South Pole Stations, Antarctica," NFPA World Safety Conference, Dallas, TX, May 18 — 21, 2003.
Carpenter, D.J. and Zhang, W., " Validation of Fire Modeling by Fire Dynamic Simulator for Fire Protection Engineering," NFPA World Safety Conference, Dallas, TX, May 18-21, 2003.
Zhang, W., N.L. Ryder, R.J. Roby, and D. J. Carpenter. " Modeling of the Combustion in a Compartment Fire by Large Eddy Simulation Approach," Proceedings of the Chemical and Physical Processes in Combustion, Eastern States Section of the Combustion Institute Fall Technical Meeting, Hilton Head, SC, December 2001.
Sutula, J.A., Carpenter, D.J., and Roby, R.J., " Use of the FDS Model to Analyze Two Competing Scenarios in an Alleged Arson Case," presented at 3rd Technical Symposium on Computer Applications in Fire Protection Engineering, Society of Fire Protection Engineers, Baltimore, MD, September 2001.
Zhang, W., Hamer, A. J., Klassen, M. S., Carpenter, D. J., and Roby, R. J., " Verification of the Turbulence Statistics for Fire Dynamic Simulator in a Room Fire," presented at 3rd Technical Symposium on Computer Applications in Fire Protection Engineering, Society of Fire Protection Engineers, Baltimore, MD, September 2001.
Zhang, W., Hamer, A., Klassen, M., Carpenter, D., and Roby, R., " Turbulence Statistics in a Fire Room Model by Large Eddy Simulation," presented at 2nd Joint Meeting of the U.S. Sections of the Combustion Institute, Oakland, CA, March 2001.
Carpenter, D. J., " Development of a Waiver/Deviation Process for Determining Equivalent Fire Protection at United States Research Stations in Antarctica," presented at the International Conference on Performance-Based Fire Safety Codes and Design Methods, Ottawa, Canada, September 23-26, 1996.
Journal Publications (Peer Reviewed):
Zhang, W., Olenick, S. M., Klassen, M. S., Carpenter, D. J., Roby, R. J., and Torero, J. L., "A Smoke Detector Activation Algorithm for Large Eddy Simulation Fire Modeling," Fire Safety Journal, 43, pp. 96 — 107, 2008.
Olenick, S. M., and Carpenter, D. J., " An Updated International Survey of Computer Models fro Fire and Smoke," Journal of Fire Protection Engineering, Vol. 13, No. 2, 2003.
Zhang, W., Hamer, A., Klassen, M., Carpenter, D., and Roby, R., " Turbulence Statistics in a Fire Room Model by Large Eddy Simulation," Fire Safety Journal, 37, pp. 721-752, 2002.
Wade, C. A., and Carpenter, D. J., " A Performance-Based Analysis of an Industrial Facility Containing Flammable Liquid Storage," Journal of Fire Protection Engineering, Vol. 9, No. 2, 1998.
Carpenter, D. J., and Wade, C. A., " A Performance-Based Fire Hazard Analysis of an Industrial Process Using Pressurized Hydraulic Fluids," in preparation for submission to the Journal of Fire Protection Engineering.
Published Reports:
Carpenter, D. J., Churchward, D. L., Lentini, J. J., McKenzie, M. A., and Smith, D. A., " Report on the Peer Review of the Expert Testimony in the Cases of State of Texas v. Cameron Todd Willingham and State of Texas v. Ernest Ray Willis," Arson Review Committee, Innocence Project, April, 2006.
DiNenno, P. J., Verdonik, D. P., and Carpenter, D. J., " U.S. Navy Halon 1211 Replacement Plan Part I — Development of Halon 1211 Alternatives," Navy Research Laboratory (NRL), NRL/MR/6180-99-8410, November 1, 1999.
Mawhinney, J. R., and Carpenter, D. J., " A Review of Fire Hazards and Fire Suppression Options for the Halifax Class Frigates of the Canadian Navy," Client Report A-4424.1, for Department of National Defence, National Research Council Canada, Ottawa, Canada, March 10, 1997.
Amy, J., Carpenter, D. J., and Pucci, W. E., " Alternative Combustible Loading: Conceptual Matrix Development and Implementation (U)", WSRC-RP-93-1445, Westinghouse Savannah River Company, Savannah River Site, Akien, SC, October 29, 1993.
Carpenter, D. J., " Alternative Combustible Loading: An Overview and Methodology Framework (U)", WSRC-RP-93-1194, Westinghouse Savannah River Company, Savannah River Site, Akien, SC, September 30, 1993.
HANDBOOK CHAPTERS:
Walton, W. D., Carpenter, D. J., and Wood, C. B., "Deterministic Computer Fire Models," 19th edition, Fire Protection Handbook, Chapter 5, Section 3, National Fire Protection Association, Quincy, MA, 2003.
Beyler, C. L., DiNenno, P. J., Carpenter, D. J., and Watts, J. M., Jr., "Introduction to Fire Modeling," 20th edition, Fire Protection Handbook, Chapter 5, Section 3, National Fire Protection Association, Quincy, MA, 2008.
Carpenter, D. J., "Fire Modeling and Its Application in Fire Investigation," Wiley Encyclopedia of Forensic Science, John Wiley Sons, New York, June, 2009.
TELEVISION PROGRAMS:
CNN's "Burden of Proof with Greta Van Susteren Roger Cossack," Waco Simulation: Burning Questions of the Branch Dravidian Fire, March 23, 2000.
CNN's "Anderson Cooper 360," Arson Science, April 10, 2007.
Abenteuer Wissen, (German Television), Knowledge Adventures: Fatal Mistakes in the Blaze, August 31, 2007.
Investigation Discovery's "Forensics: You Decide," Episode 3: Up in Flames, August 2009.
ABC's 20/20, "Burned: Fire Scientists Question Arson Findings", Episode 3018, May 7th, 2010.
NEWSPAPER ARTICLES:
"More Arson Convictions Challenged by Science," Maurice Possley, Chicago Tribune, October 18, 2006.
"Arson Convictions, Fire Investigations Feel the Heat", Sue Russell, Miller-McCune Newsletterhttp://www.miller-mccune.com/article/arson-convictions-fire-investigations-feel-the-heat-980
(), February 7, 2009."I Was Just A Junkie", Dave Mann, The Texas Observer
(http://www.texasobserver.org/features/i-was-just-a-junkie), October 2, 2009. Douglas J. Carpenter, MScFPE, C.F.E.I., P.E. Court Testimony: State of Vermont vs. Dale Spooner.
State of Vermont District Court,
Washington Circuit, Unit 2, Docket No. 898-7-99Wncr
August 1-2, 2000.
State of Ohio vs. Angela Garcia.
Court of Common Pleas, Cuyahoga County, Ohio
May 21, 2001
State of Florida vs. Kazem Pourghafari
In the Circuit Court of the 17th Judicial Circuit
Broward County, Florida, Case No. 98-15858 CF10A
Evidentiary Hearing
March 25, 2004
State of Florida vs. Kazem Pourghafari
In the Circuit Court of the 17th Judicial Circuit
Broward County, Florida, Case No. 98-15858 CF10A
April 13, 2004
Harford Mutual Insurance, as Subrogee of Carriage Hill Apartments vs. Apria Health Care, Inc., and Mallinckrodt, Inc.
In the United States District Court for the State of Maryland — Southern Division
Case No. DKC 03-180
Daubert Hearing
July 20, 2004
State of Louisiana vs. Amanda Gutweiler aka Amanda Hypes
In the Ninth Judicial District Court
Rapides Parish, Louisiana
Criminal Docket No. 265037
Bail Hearing
June 23, 2006
Camp Takajo, Inc., Plaintiff v. Simplex Grinnell, LP and Pitre Painting Company, Inc., Defendants.
State of Maine Superior Court
Cumberland County, SS.
Civil Action Doc. No. CV-04-773
February 26, 2007 Hardel Mutual Plywood Corporation vs. City of Olympia.
Supreme Court, Washington State
Thurston County, Case No. 00-2-00291-0
September 26-27, 2002
State of Florida vs. Kazem Pourghafari
In the Circuit Court of the 17th Judicial Circuit
Broward County, Florida, Case No. 98-15858 CF10A
November 25, 2003
Harford Mutual Insurance, as Subrogee of Carriage Hill Apartments vs. Apria Health Care, Inc., and Mallinckrodt, Inc.
In the United States District Court for the State of Maryland — Southern Division
Case No. DKC 03-180
December 16, 2003
The Travelers Indemnity Company of Illinois, as subrogee of Fred Garmon Marketing Corp. and The Charter Oak Fire Insurance Company, as subrogee of Computer Software Constultants, Inc. and Elizabeth Grady Face First, Inc. vs. G K, LLC, a/k/a Goode Kriensky, LLC and Sidney Kriensky, Keyes North Atlantic Co., Inc. CCX Construction Corp. d/b/a M M Engineering, and Seaco Insurance Company
Commonwealth of Massachusetts — Superior Court, Middlesex, SS.
Civil Action No. 0201478
March 30, 2004.
Catherine Reuter vs. Washington Hospital Center Corporation
In the United States District Court for the District of Columbia
Case No. 1-03CV
May 26, 2004
Douglas O. Kitchen v. Krohn Homes, LLC (Deposition )
American Arbitration Association
Case No. 30-Y-11000327-04
December 2, 2004
Douglas O. Kitchen v. Krohn Homes, LLC (Testified at Arbitration Hearing)
American Arbitration Association
Case No. 30-Y-11000327-04
December 28, 2004
Daniel F. Knise and Kathleen P. Knise v. Mitchell Fagan Painting Company
In the Circuit Court for Fairfax County, Virginia
Law No. 223556
April 25, 2005 Mayor and City Council of Baltimore, et al., Plaintiffs v. CSX Transportation, Inc., et al., Defendants
In the United States District Court for the State of Maryland — Northern Division
Civil Case No. 04-CV-2348 (RDB)
September 6, 2005
Camp Takajo, Inc., Plaintiff v. Simplex Grinnell, LP and Pitre Painting Company, Inc., Defendants.
State of Maine Superior Court
Cumberland County, SS.
Civil Action Doc. No. CV-04-773
February 20, 2006
Rodney and Bobby Jo Knepp, individually and as Parents and Natural Guardians of Tyler and Dakota Knepp v. Lawrence H. and Rosearie C. Baird
In the Court of Common Pleas in and for the County of Montgomery, Pennsylvania
Civil Action No. 03-05546
Arbitration Hearing
March 7, 2006
Camp Takajo, Inc., Plaintiff v. Simplex Grinnell, LP and Pitre Painting Company, Inc., Defendants.
State of Maine Superior Court
Cumberland County, SS.
Civil Action Doc. No. CV-04-773
April 12, 2006
Antrunette Howard, Administrator of the Estate of Djanay Hampton, Deceased, Et Al., Plaintiffs vs. East lake Management Development Corporation of Chicago, Et. Al., Defendants
In the Circuit Court of Cook County, Illinois, County Department — Law Division
John Kane As Administrator Of The Estate of Jennifer Kane, Plaintiff v. David L. Krugman, In His Capacity As Finance Director For The Town Of Narragansett, And John Does I-X
In The State of Rhode Island and Providence Plantations Washington, SC. Superior Court
No. 03L 13598
March 8, 2007
Anthony W. Smith and Theresa Smith, Plaintiffs, vs. Marilyn Nelson, doing business as "SIMPLY SOFAS," and DOES 1 To 50, Defendants.
Superior Court of the State of California for the County of Los Angeles
No. BC 344555 SC 088250
October 4, 2007
United Services Automobile Association vs. Potomac Electric Power Company and Asplundh Tree Expert Company.
Circult Court for Montgomery County, Maryland
Case No. 298478-V
May 5, 2009.
Federal Insurance Company, as subrogee of Joseph Gonzalez vs. Builder Services Group, Inc., d/b/a Coastal Insulation, Inc. and Karl Owens, LLC.
United States District Court, Northern District of Florida, Pensacola Division
Case No. 3:08-CV-481-MCR-EMT
May 26, 2009.
Arch Chemicals, Inc. vs. Radiator Specialty Company.
United States District Court, District of Oregon
Case No. 3:07-cv-1339-HU
July 16, 2010.
George M. Muteff, Executor of the Estate of Virginia C. Miller vs. Invacare Corporation and American Mobility, LLC.
In The General Court of Justice, Superior Court Division, Wake County, North Carolina
Case No. 08 CVS 11624
July 20, 2010.
Michael S. Hippert vs. Trane US Inc. et al.
In The Court of Common Pleas, Hamilton County, Ohio
Case No. A0806404
August 13, 2010.
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