this circuit's decisions made it clear that if an expert is going to test the test must analytically prove the experts hypothesis physical tests such as mentioned in fireman's fund pressley why scram american auto mathematical calculations as mentioned in pro service can jeter scientific research as mentioned in presley and the supreme court in kumho are all acceptable methods to test in this circuit and those methods coincide with the method stated in n f p a nine twenty one in which physical tests are mentioned analytical test by applying scientific principles are mentioned and scientific research mr decker mr weiss song did none of these no sifting no test for accelerants no extensive analysis of products or appliances no reference to mathematical calculations or analysis no reference to scientific principles or scientific research instead they claimed to test and they  d their testing as deductive reasoning actually using those words deductive reasoning but in a way contrary to the very scientific method they purported to follow testing or deductive reasoning as defined in f p a nine twenty one which all states cited and which the district court cited as well is when the investigator compares the hypothesis to all known facts as well as the body of scientific knowledge associated with the phenomena relevant to the specific incident happening is not is mr decker mr weiss ong all state and even the dest district court would have you believe it is not the process comparing the information available to the investigator to the investigators body of knowledge and experience in their field testing is intended to be objective it's intended to be and objective rigorous evaluation of hypotheses and examining the empirical data of an incident and extending out into the world from the expert to take a look at other scholars research calculations test on the same or similar issue all stages arguing that a subjective means of examining the data is acceptable the supreme court and daubert indicated that subjective belief by an expert should be rejected the supreme court in duck income hold talk about the dixit in which an expert basically says that's just how it is and i don't think that that should have been accepted by the district court and it should not be accepted by this court the district court is seems to be advocating for more of an insular testing a subjective test not only on the on the inductive reasoning side when you have to determine or and name well suppose the expert says i have years and years of experience in doing this and i'm familiar with the methods in the industry or the views of the experts and so forth and i'm comparing the situation here against that i think in that situation the expert needs to say what it is the expert is relying on outside of the experts own experience what what what tests done by other people in this case what fire spread test them by somebody else's or something similar to what happened in this incident is there scientific research which would support that expert analysis are there other scientific principles that the expert can actually refer to specifically refer to when i took their depositions they could they did not refer to any scientific principles they did not refer to any scientific research  that's the way their depositions turned out during when they submitted their affidavits they talked about testing and deductive reasoning at that point and again even in their affidavits they did not talk about any any outside information that they consulted and so i don't i do not experts experience if it's extensive enough could constitute a body of scientific knowledge i don't think so i think i think it's the investigators body of knowledge i don't think it is the body of knowledge and that's why i believe the district court went iraq well do you have did you have any evidence that their body of knowledge was inconsistent with the body of knowledge as you're defining it well we did have opportunity to present  opposition expert there's no question about that so we had an opportunity to do that what mental scientific methodology did your opposition expert use and what testing did he perform that was different or additional he didn't come out and say i tested it and then then he didn't say not only did i test but i tested using deductive reasoning and i defined deductive reasoning he did not say this he did not define deductive reasoning as something other than what is mentioned in the scientific method as as an expert reviewing the data with regard to the entire body of knowledge and so your expert can testify about these things in these theories because he never said i used the scientific method but if someone says i used the scientific method they are therefore limited in their testimony to only those things which can be  en even as cited by all state and cited by the district court it it what difference does it make i mean you think the jury was influenced by the fact that they claimed that this was  i think they were known what that meant and given it more weight than your man i understand that that's that's an issue but the fact that expert testimony is i mean this court has mentioned it the supreme court has mentioned it is just hard to understand and it can be difficult it can be confusing i really makes a difference if there are judge if our district judge was confused if our district cuts to a court judge was confused after substantial briefing on this issue  i believe that it's a it's highly likely that the jury was confused as well and and when i arrived as much as the district court judge did did the district judge prohibit you from cross examining on the theory of deductive reasoning and scientific method no actually during direct they didn't i i don't believe that why song or decker even talked about testing or deductive reasoning i did not feel at that point if i was crossing them that i could get into that i would be going beyond direct and the fact that the why would you be going beyond direct i think that the underlying basis  methodology for an expert's opinion is always fair game once you offer the old pinion aren't you free to cross examine on the underlying methodology i did talk about that i did i did cross examine with regard to lack of sifting a lack of test or lack of  examining appliances lack of products the fact that they couldn't say that mr dixon or mr hitch did it they couldn't show cause they shouldn't they couldn't show origin so i got to i got to do that and if there was a body of scientific knowledge that you say is out there that conflicted with their so called subjective knowledge could you have brought that up as well i didn't think it was my burden to bring in  mean to impeach them though to say well you're claiming this is the method but there's a body of aren't you familiar with this body of scientific knowledge that contrary to the way your protein and so forth i felt like the cross was sufficient to attack their you know their their their methodology without getting into bring it if i bring in well what's the problem that well the problem is that  you know i have a judge that still looked at this the briefing looked at the notion of testing looked at look at looked at deductive reasoning and rendered an opinion i think was confusing and showed his confusion and therefore i believe the jury was confused i think the jury was presented expert testimony that was not proper and under the methodology replan even though you could cross examine them and you think that was adequately done it should make screwed entirely should have been excluded entirely and i guess that i sort of question what's the point of daubert what's the point of the analysis of all if if in every fast burn rapid burn why is that so significant  it's not supported by any methodology it's not supported by the facts there's too big of an analytical gap as this court has discussed and other courts have discussed between between the evidence and the conclusion there's no there's no tie in between the evidence and led the judge i think but what was the significance of it to show that it the fire wasn't are going before your people left the house or the so as far as i know the significance was to pinpoint to try to have are my people in that house when the fire either starts or is about to start that was the point of both but i did it been a slow burn when your people men in the house then too could been and there was evidence that sometimes that happens there's a fire burning undetected and that happens i thought the point was the fast burn means that it would have more likely that the star occurred right when your people were leaving mr weiss longer first to multiple locations which is another issue has two separate hypotheses is one that says it started an hour or more before  before before the witnesses saw the fire at like nine twelve or when it was and then he says alternatively well it was it was started in multiple places there's no there's no connect these these guys could not determine cause they couldn't determine origin and their own their own methodology was inconsistent with their conclusions as happened in in fireman's fund they they said they didn't know cause and then they said all but we ruled out all these other causes when those other causes aren't related to what their ultimate conclusion was which was not related to causation at all there's an inconsistency between the methodology they claimed to the standard of review here in this court is an abuse of discretion and judge carpools ruling on this issue should not be disturbed absent an abuse of discretion we've already heard the district court carpool heard extensive arguments on this issue during the hearing on the motion in limine a before the trial and then also the issue was argued extensively during the trial and when some objections came up during the  trial you know i mentioned the gatekeeper function i mean you might have heard a lot of argument but if you got it wrong then there's still a problem well and that's what i was about to say your honor is i respectfully disagree with mr endicott i don't think the judge carpool was confused in any way shape or form as the gatekeeper he was in the best position to make a determination on this issue and i believe he correctly concluded that the dixons arguments regarding speculation and their arguments regarding methodology all went to the weight of the evidence and could be addressed through cross examination could also be addressed through the testimony of the dixons own expert i think he got that to exactly exactly was the methodology they imply that the methodology your honor they did say that they utilized the scientific method which is a well accepted and i'll go into the detail on of the but that's a well accepted methodology  in the fire in the in fire science and with these fire experts what it is your honor it's observing the relevant evidence applying their specialized knowledge on fire growth and fire spread to the evidence that they gather collective reviewed so so did they testify as part of my training i observed thirty three fires and the speed with which they burn in different situations in that sort of thing that the running of that they did your honor  i made very sure because of the pretrial issues on this that i laid a foundation this case a little bit different because i wasn't offering either of these gentlemen to testify about the origin and cause of the fire what i was offering them for here was to testify regarding fire growth and fire spread there is an indicator in mine twenty one one of the things one twenty one says is abnormal unnatural fire growth can be an indicator of an incendiary fire but to get back to your question so yes the foundation i laid was these gentlemen had participated in live burns where they had opportunities to observe the way fires well what it was your honor was it's as was discussed a little bit earlier there was the purpose of it was was to help the jury understand that if the first witnesses see this fire see this building this mammoth huge building fully engulfed in flames at nine eleven pm and mr dixon says depending on which version you believe he left somewhere around eight thirty the perp the primary purpose of the testimony was to show that that fire was burning points out you're on i suppose theoretically that's true i think both these gentlemen said that's highly unlikely due to the fact that there were seven smoke detectors in the home in it and there was testimony to that effect but as it was standing alone your honor as the district court said in a vacuum this one particular piece of evidence you know may not have been you know the end all be all but it's one piece of the puzzle of all of the other circumstantial evidence i mean to me it's highly relevant that you know if this gentleman is here when this fire is burning and then you take that into consideration viewed in the totality with everything else it's very it becomes very significant so you know the argument that's advanced is that the judge was judge harper was confused and as you read his will pinion there's elements of it that look an awful lot like and you look read the transcript and there's questions and stuff it kind of looks a lot like a fry analysis in some ways and if you start looking at frye you know that was the missouri law until two thousand and seventeen and then there was an amendment to the statute in so it's a relatively recent phenomena would you shuck he says you know observations coupled with expertise may be the only basis for an expert's opinion i mean he hits that dead on the head in that opinion i think he's you know very well aware and of course he no two but he focused on the methodology and you know his his foot i think the answer your question judges his focus on the his person on the show and the judge to me had a very clear understanding that really frankly testing isn't even necessary i mean there are there are many occasions especially in these fire situations your honor where the you know by the very nature of it all of the physical evidence you know that these guys need to look at burns in the fire that's the problem what about what about the claim though that they didn't use the body of scientific knowledge they were just using their own subjective knowledge and opinions well i don't think that that's correct your honor because i mean that it's referred to to address the body of scientific knowledge well again that kind of gets back to what i was addressing before in terms of the foundation that i laid and you know they talked as i did later found out i didn't say what it was well ok and i was and i was starting to get into it i apologize i  t i took them through all of their first of all all of their education exactly you know what courses they had taken what they had studied the seminars that they'd been to the training that they had had  live burns that they had observed and witness their on the job experience how many fires that they had worked you know how many times that they had doubts their personal background experience but counterargument is that he had to be analyzing it by reference to the body of scientific knowledge greater than their own personal experiences but what i would say your honors that all of those things that i just mentioned that that is the greater body and i mean any time you go to for example and i double a i seminar they are learning about the larger body of experience in science and that's what they're that's what all of that is it's them taking in you know the relevant body of knowledge and body it's not just their own i mean if all these guys said was you know here's what i've done i've gone out i've worked these fires and here's what i've seen then i would understand what you're saying but that that's not the case and these guys  you know i've had an opportunity to participate in all of these industry you know courses and training and things of that nature over the many many years and see what the industry in that you know the collective you know well and i ask those very questions your honor to make certain of that i mean with this one we really honed in on you know what part of your education what part of your training what part of your experience focused on fire growth and fire spread so i'm not talking about a class where they learned about you know how to test for excel or answer or something like that you know i mean much of what mr endicott talks about when he says well they didn't and they didn't test for accelerants and didn't examine appliances and those sorts of things that all goes to you know what you would typically expect to see if someone's attempting to determine the origin and cause of a fire that's very different than a flame spread an analysis isn't flame spread and fire growth analysis affected by other things that could be revealed and in physical examination things like dry rot things like termite damage this is an old building it's wood frame it's been there forever and without those sort of underlying testing doesn't it become speculative what is there left to test your honor though if the thing is reduced completely to rubble that's the reason for the for the foundation that i laid me down when you look at what these gentlemen reviewed pre fire photographs of the building mr dixon has shot a video of the building where he goes room by room you know what are the fuel loads in each room what are the walls made of what are the floors made of what are the ceilings made up when i took the sworn testimony i made very s to ask them exactly those questions and then provided to mr weiss on that information so that he could address what you're talking about there your honor and when it went when the place is reduced to dust and rubble and then that's the best that you have  and that's and that's so that's the you know that gets to the seven o two which is the gathering of the sufficient facts and data with regard to this particular situation so again you know on this on this issue i seven o two a you know there's a there's a multitude of information that they gathered and collected in seven zero to be you know that kind of gets to your question judge bolton about you know what's th this testimony the opinions of these gentleman would the trier of fact in my mind to understand the significance of the timeline here that if this building is you know fully engulfed in flames at nine eleven pm and mr dixon leaves somewhere between eight and eight thirty the testimony regarding you know how long that fire had been burning that helps them you know if they choose to believe it put mr dixon at the scene of that place when it's on fire which gets right to that helps them it helps them to determine the central fact in issue which is do you know did he intentionally s fire or not i talked about seven zero to be with the with the collection of the facts the data we've we've discussed the the methodology and again i just think the law on the eighth circuit is very very clear  that observations coupled with expertise and that's essentially that's what we have here i don't think judge harper was confused at all on that issue unless there's any other questions of on that i'll move along from the the methodology aspect of it the the relevancy i haven't discussed yet but there was a an objection based upon the relevancy well to me again if you look at  rule for a one does that does this testimony tend to make a fact more probable or not well it gets right back to what i just said if if the testimony shows get a little confused about the shirt because if it was a slow burn he still would have been there well and that's where i say as i as i get i understand what i think really what you're trying to do is do a back and way of getting to incendiary well and as i said you know the primary purpose of it was you know to establish that well but see if i'm not sure that i agree with your honor and here's why if it's a slow burn ok this building the thrust of this testimony is that this building would not have progressed that fire would not have progressed to the state that it was at when it was first discovered at nine eleven pm if you're talking about a slow smoldering you know we have an electrical arc inside of a wall and you know these guys talked about how that the progression of that kind of fire is very different than you know what we had here ok so even if he had been there your honor he wouldn't have seen the building the fire progressed to the state that it was in by the time it was first detected just to the point isn't whether or not he's there  well it's two things it's i don't disagree with you i mean it's opportunity it goes to to opportunity i mean if he's if he's right there at the building when it's on fire then yes he has the opposite he had the opportunity to set that fire and that's one piece of the circumstantial puzzle now the other aspect of this though and i think it gets more to what you're saying your honor is that if you have rapid excessive abnormal unnatural fire growth and flame spread the testimony was that can be an indicator of an incendiary fire and that testimony and opinion did come come out as well all right thank you for your argument  whatever came up during their qualifications and judge carpools specifically understood it to apply just in general to their qualifications not to this specific incident which happened in this case i would say that if if why song and decker go to a conference and they come back they cannot just testify concerning their experience without time with that is saying ok there there was research that i found at this conference this research is following this is the book this is the this is the thing that i'm relying on so that people can then cross examine on that on that information that was not brought back and put into this case if in fact they actually found any kind of sign for scientific research or principles that supported their theories mr noah by the way his purpose to testify was different his purpose was to critique mr w on mr decker we haven't talked to let me say something quickly about the about hypnosis and in shock i believe that mr brady referred to that russell shock they are distinguishable because those experts did not claim to test they did not claim to test using an errant definition of deductive reasoning and they did not claim to engage in the process of ruling in ruling out causes when causation could not be determined and when their ultimate conclusions were hypotheses did not relate to causation finally with regard to the mortgage that issue we have the briefs on that issue so we'll take a careful look at it thank you your i thank you thank you both three arguments the case is submitted and the court found opinion in due course