The opinion of the court was delivered by: Randolph F. Treece United States Magistrate Judge
MEMORANDUM DECISION and ORDER
In this fire subrogation action, on September 12, 2008, Allstate Insurance Company (Allstate) filed a Motion in Limine to Preclude the Expert Testimony of George Hanslmaier. Dkt. Nos. 39-41.*fn3 Gonyo opposes Allstate's Motion in Liminie. Dkt. Nos. 42 & 43.*fn4 In the interim, Gonyo filed a Motion for Summary Judgment and on April 8, 2009, this Court issued a Memorandum-Decision and Order denying Gonyo's Motion. Dkt. No. 52. For the reasons that follow, Allstate's Motion in Liminie is denied.
The parties' familiarity with the facts are presumed. Id. at pp. 2-6. Nonetheless, a brief recitation of the facts are warranted.
On November 14, 2006, Albert Gonyo and Charles Stone rented Thomas Lothridge's cabin, which is located in the Town of New Berlin, Chenango County, as they had done on multiple occasions in the past. Prior to pursuing hunting, Gonyo lit a fire in the wood burning stove while Stone assisted by bringing in the wood. After the stove was lit, Gonyo and Stone left the cabin for approximately forty-five (45) minutes to scout for deer. Upon their return to the cabin, they observed black smoke billowing from the cabin. Later, as they looked through the cabin's windows, they could see the inside engulfed in flames.
Within eleven (11) minutes of the alarm, the New Berlin Fire Department was the first fire company to respond and on that first truck was the Fire Chief George Hanslmaier. Other fire companies also arrived and assisted in the containment of the fire. Chiefly among those other fire companies, was the Chenango County Fire Cause and Origin Team ("CCFCOT"). At all times during the management of the fire, Fire Chief Hanslmaier was the senior officer, and because of his superior rank, as a matter of policy, he was the fire and origin investigator. Hanslmaier has served his fire company for twenty-five (25) years, moved up the ranks, and has served as Fire Chief for approximately ten (10) years prior to this fire. In addition, Hanslmaier was a Level One Certified Fire Investigator.
Once the fire was extinguished, and as the highest ranking official at the fire scene, Hanslmaier conducted a fire scene origin and cause investigation, of which Gonyo and Stone witnessed. Based upon his observations, and after conferring with others, Hanslmaier concluded that the fire began due to the heat from the chimney which ignited the roof. He further opined that further damage was caused by "drop down" debris from the roof. Upon returning to his fire station, Hanslmaier typed up a report. Dkt. No. 41-4.
Allstate retained the services of Dennis A. Ware to investigate the cause and origin of the fire, and, on November 17, 2005, Ware inspected the fire scene. During his inspection, Ware observed the outline of the purported remains of a plastic tool chest, which was sitting approximately six (6) inches from the wood burning stove. Based upon his investigation, Ware opined that the fire did not start in the roof line but rather in the northeast corner of the living room by the stove, attributing the ignition of the fire "to the failure of the persons who were using the wood stove to maintain proper clearance to combustibles (the plastic toolbox) located close to the wood stove[.]" Dkt. No. 41-2 at p. 7. Immediately thereafter, Ware reported his conclusion to Allstate and, on April 12, 2006, Gonyo received a letter advising him that the fire was the result of his negligence.
By this Motion, Allstate contends that Hanslmaier's testimony should not be admitted at trial because it would fail to comport with the standards set forth in FED. R. EVID. 702 and Daubert v. Merrill-Dow, Pharm. Inc., 509 U.S. 579 (1993). In this respect, Allstate attacks Hanslmaier's qualifications as a cause and origin investigator and his opinions as unreliable. As an ancillary issue, Allstate asserts that Hanslmaier's opinion is not his own but actually that of unknown members of the CCFCOT. In support of these challenges to Hanslmaier testifying, Allstate levies a litany of objections.
Turning first to the challenges of Hanslmaier's qualifications, Allstate starts by minimizing his certification as a Level I Fire Investigator. Allstate notes that he had not obtained a Level II Certification nor attempted to do so; he has no other certification relating to fire cause and origin investigation nor was he a member of the CCFCOT; and Hanslmaier has never been retained as an expert witness nor given a deposition or testimony in his capacity as Fire Chief or fire cause and origin investigator.
In terms of his opinion, which Allstate maintains is unreliable, its first shot over the bow is that it is not his independent opinion but a group decision. Allstate states that Hanslmaier did not follow the National Fire Protection Association (NFPA) standards, which provide guidance for fire and explosive investigations. In this regard, Allstate notes that Hanslmaier did not take any photographs, personally interview witnesses, particularly Gonyo and Stone, conduct a further investigation, nor test his theory as to the origin of the fire as recommended by the NFPA. In Allstate's view, Hanslmaier's conclusion is based upon his inspection of the fire scene, which in and of itself is insufficient. Further compounding its attack on his opinion, Allstate raises that Hanslmaier does not have an opinion regarding how the fire spread from the roof area to the other portions of the cabin.
A. The Applicable Standard
Federal Rule of Evidence 702 governs the admissibility of expert testimony. The statute reads [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 ...