As promised yesterday in Wildfire and Smoke Claims – A Case Burning With Issues That Public Adjusters Should Study, today’s post will be the first study from the recent decision in Falcon v. State Farm Lloyds.1 The initial question is how long has the expert has been doing what he is asked to do. The fire in Falcon involved a September 2011 wildfire in Texas.
How long was the company in existence before the fire?
This is what the trial court noted regarding one of the policyholder’s smoke experts:
According to Fields’ curriculum vitae, his education consisted of a high school degree completed in 1971 and five years of night school in the business school at the University of Houston. Subsequently, Fields worked in a variety of jobs including bank teller, bank purchasing agent, grocery store assistant manager, and sales manager. In 1995, Fields transitioned into real estate. Between 1995 and 2000, Fields built and sold office warehouse projects. Then in 2000, he became the Director of Real Estate for an unnamed “large developer” in Southern Texas. Fields retained this position until 2008. Between 2009 and 2010, Fields lists his occupation as semiretired real estate broker and developer. In 2011, Fields formed and became president of National Smoke Contaminant Testing.
Some people might think that Fields became an entrepreneur because of the wildfires raging in Texas in 2011. He had zero training and experience with smoke testing before that time. Certainly, there was a need for this service. The question is whether a person having so little experience can so quickly become an “expert.” If so, the meaning of an “expert” would seem pretty easy to obtain.
So, the judge starts the analysis noting:
The Court must thoroughly examine Fields’ qualifications. First, from Fields’ curriculum vitae, it is apparent that Fields does not possess any formal education regarding the effects of smoke on a residential structure or regarding proper procedures for determining whether a structure has been damaged by smoke. Fields has not completed any educational degree beyond high school; he does possess some post-secondary education, but this concentrated in business administration and does not appear to have any applicability to smoke damage or testing.
The Court recognizes that formal education is not the only means to obtain expertise in a relevant area; and therefore, the Court must evaluate whether Fields’ self-study and experience is enough to qualify him as an expert. In Fields’ case, he relies on discussions he had with Everett, as well as self-study of literature provided to him by Everett, and a conversation with Marion Armstrong as the basis for his expertise.
I have been guilty of assuming people I am hiring have years of experience and are experts. But here are a few rules:
- How long has the person been in the business?
- Look at the resumes of the people actually doing the work.
- Have they ever testified in Court and been accepted as an “expert.”
- Check out the website and ask if it has a showing of credentials of expertise.
I am doing this on a number of my cases right now.
More lessons tomorrow.
Brandee Bower of our Denver office said that these non-experts reminded her of this commercial:
My Positive Thought of the Day is related to today’s topic and is from my Latin teachings in Catholic School:
Esse quam videri
“To Be, Rather Than to Seem”