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Last week the N.C. Court of Appeals published yet another opinion (PHG v. City of Asheville) that (1) further defines the template for deciding quasi-judicial zoning applications and (2) curtails the all-too-frequent seduction of board members to slip into legislative shoes while wearing a (quasi) judicial robe.
Full disclosure: I argued PHG to the Court in September, and I’m eager to provide the color commentary of what actually happened at the board level and how the case evolved. I am not without opinions. But while we’re inside the window when Asheville is deciding whether to petition the NC Supreme Court for discretionary review, I’ll be broad. For now.
First, credit where credit is due. PHG was very ably handled before the city council by my colleague Bob Oast of the McGuire Wood Bissette firm whose preparation made the difference. And I never go into litigation at the trial or appellate level without my colleague and collaborator Kip Nelson who finds case distinctions faster than any computer program yet written.
PHG applied for a Conditional Use Permit (CUP) to construct a 7 story hotel in a developing part of the downtown business district. At least 5 reviewing boards and staff recommended approval. PHG put on 3 hours of evidence, primarily through 3 highly qualified experts from three well-known and respected companies.
Except for a man who approached to ask a question about traffic safety, there was zero evidence in opposition. Zero.
Council members themselves provided evidence and testimony during the hearing. They argued with PHG’s experts. Council member Bothwell was incensed that the traffic engineer was unaware whether smoke from the wildfires in Rutherford County has reached Asheville the day the traffic study was conducted. He did research on his iPad during the hearing. Another council member argued that the industry standard for traffic studies was not good enough for Asheville and insisted that the project should have been delayed to conduct traffic analyses in multiple seasons.
The public hearing closed. Council members immediately moved denial without discussion. Three weeks later, the council adopted 44 findings stating why PHG failed to meet its burden. And the findings were, in large part, nit-picky quibbles with PHG’s evidence.
The decision and the judge who authored it cannot be discussed separately. Judge John Tyson has now authored 5 opinions in two years that clarify the template for quasi-judicial decisions (Dellinger v. Lincoln County, Innovative 55 v. Robeson County, Ecoplexus v. Currituck County, Little River v. Lee County, and PHG).
These cases are all consistent. They create a modern canon that will be long referenced and cited. They protect the rights of parties against governments that wish to ignore their own ordinances and the rules of evidence. But most importantly, they are not from-the-bench legislation. Rather, they revive and confidently apply the principles of two seminal N.C. Supreme Court cases – Humble Oil and Woodhouse.
And it cannot be avoided or missed that Judge Tyson’s decision has a tone of rebuke. As I move into my 34th year of law practice and having appeared before boards in more than 250 towns, villages, counties, and cities in 3 states, I know the difference between a government that errs and a government that goes completely off the rails. It is rare when it occurs. But in this case it takes one reading of the transcript to recognize a council beholden to no one, no rules of procedure, and no recognized law.
(1) Yet again, Judge Tyson reminds us that if an applicant makes a prima facie case of entitlement he is entitled to the permit. To make a prima facie case requires not a burden of proof but a burden of production, after which the burden then shifts to the opposition.
(2) Asheville argued that because it made findings that the standard of review should have been a highly deferential whole record review. Judge Tyson dismissed Asheville’s findings as “unnecessary” and “extraneous and superfluous” because there was no conflicting evidence before the council. The correct standard – which was applied by the trial court – was the non-deferential de novo review. Why? Because whether the applicant presented competent, material, and substantial evidence is a question of law.
If Asheville were to have prevailed on this point, every local government from now to eternity could make a Teflon coated decision escaping meaningful judicial review. Which is what, to my observation, Asheville was attempting.
(3) The prominence of the Woodhouse case continues to rise. The Woodhouse court said, among other things, that it is an unacceptable and intolerable burden to require an applicant to anticipate and disprove every single objection to the project. Judge Tyson has recognized this point in most of the cases cited above.
(4) Judge Tyson wrote at length on the definitions of “competent,” “material,” and “substantial,” to explain why Asheville erred as a matter of law when it declared each of these experts’ testimonies to be irrelevant and improper. I predict that PHG will be oft-cited on these points.
(6) There are two outlier zoning cases (SBA v. Asheville and Am. Towers v. Morrisville) where boards denied applications for special use permits. Both cases seem to grant local boards authority to raise the bar ever higher on an expert’s testimony as an excuse to deny a permit. PHG distinguishes both cases and reigns them in.
(7) For future matters involving an appraiser conducting a market impact study, PHG is a must read.
Stay tuned. Pending the ultimate outcome of this decision I have more interesting tidbits from the hearing.

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In 1923, the United States Circuit Court for the District of Columbia, in the case of Frye v. United States, 54 App. D.C. 46, 293 F. 1013 (1923) established a threshold standard for the admission of expert testimony in federal court cases. That standard imposed a requirement that the data and methodology used by the expert in developing an opinion be of the kind "generally accepted" by other practitioners within that particular discipline. This standard of "general acceptance" was universally adopted and subsequently used in both federal and state courts for over 70 years. It is still used today in a number of state court jurisdictions. However, a new standard of admissibility in federal court cases was established in 1993 which has since been adopted in a growing number of state court systems. As this new standard has recently been applied to fire scene investigation, it presents a significant challenge to the traditional admissibility of fire origin and cause testimony.
While Rule 702 was intended to broaden the general admissibility of expert testimony and certainly did so, it did not directly address the legal standard for measuring the foundation of an expert's conclusions. The Frye standard of "general acceptance" continued to be used until the Supreme Court issued it's opinion in Daubert v. Merrill-Dow Pharmaceuticals, 509 U.S. 579, 113 S. Ct. 2786, 125 L.Ed.2d 469 (1993). In Daubert the Court ruled that the Frye test had been effectively abolished by Rule 702 and the federal courts must now apply a new standard for the admission of expert testimony.
Daubert was a case involving birth defects allegedly cause by the mother's use of Bendectin, an anti-nausea drug, during her pregnancy. Merrill-Dow moved for summary judgment in the case, claiming its drug had not caused the injury to the child. In support of its motion, Merrill-Dow submitted the affidavit of a physician and epidemiologist, Dr. Steven H. Lamm, who was a respected authority in the area of health risks from exposure to chemical substances. In his affidavit, Dr. Lamm stated that he had reviewed 30 published studies involving more than 130,000 patients and that none of those studies had found Bendectin to cause injuries in fetuses. On that basis, he concluded that the use of Bendectin during the first trimester of pregnancy was not a risk factor for human birth defects. In response to Merrill-Dow's motion, Daubert presented affidavits from eight experts who, on the basis of various animal studies, claimed to have found a link between Bendectin and birth defects.
The trial court granted Merrill-Dow's motion, finding that Daubert's experts relied on evidence "not sufficiently established to have general acceptance in the field to which it belongs." The Court found that since there was a vast body of human epidemiological data in this area, animal cell studies were not sufficient to raise a reasonable jury issue regarding causation. The Court further found that the analysis by these experts, attacking the epidemiological analyses cited by Dr. Lamm based on "recalculations" of data in the previously published studies, were inadmissible as those findings had not been published or subjected to peer review so as to attain "general acceptance" in the field of epidemiology.
The Court of Appeals affirmed the trial court's decision based upon the Frye standard of general acceptance in the scientific community. That court found it to be of particular significance that there existed a massive amount of original published studies supporting the safety of Bendectin, all of which had undergone scrutiny by the scientific community, while the "reanalyses" by those suggesting the risks of Bendectin were neither published nor subjected to peer review. Those findings were considered novel scientific evidence or, as it has since become known, "junk science." Under the Frye standard, such "junk science" did not qualify as legally admissible expert testimony.
The case was appealed to the United States Supreme Court where the rulings of the lower courts were overturned and a new standard of admissibility was created. The Supreme Court, in addressing the facts of Daubert relating to scientific evidence and expert testimony, first established a two-step analysis to be used by the federal district courts in acting as the "gatekeepers" of the introduction of expert testimony. Those criteria are (1) that the evidence is relevant and (2) that it is reliable. In determining the issue of whether the evidence is to be considered reliable, the Court established a separate, non-exclusive four part test: (1) can the theory or technique be tested, (2) has it been subjected to peer review and publication, (3) is there a known or potential rate of error, and (4) is there a level of general acceptance in that particular discipline's community, similar to the former Frye test. Thus, the single issue Frye test was expanded to include these new factors in evaluating the quality - and resulting admissibility - of scientific evidence and expert testimony.
Questions arise simply from reading this part of the Court's opinion, and countless more questions will surely arise when hundreds of district judges try to apply its teaching to particular offers of expert testimony. Does all of this dicta apply to an expert seeking to testify on the basis of "technical or other specialized knowledge" - the other types of expert knowledge to which Rule 702 applies - or are the "general observations" limited only to "scientific knowledge"? What is the difference between scientific knowledge and technical knowledge; does Rule 702 actually contemplate that the phrase "scientific, technical, or other specialized knowledge" be broken down into numerous subspecies of expertise, or did its authors simply pick general descriptive language covering the sort of expert testimony which courts have customarily received? . . ..
The state courts are divided on whether they will follow Daubert or continue to use the Frye standard. Of the various state courts that have decided to follow Daubert, all but two (Georgia and Connecticut) have standards on expert testimony similar to federal Rule 702. Yet even in those jurisdictions, a number have applied Daubert to certain scientific evidence cases only. Other states, including several with evidence rules analogous to Rule 702, have opted to still follow the Frye standard.
Within the fire investigation community there has been a long-standing debate about the "science" of fire scene investigation which has been heightened by the adoption of NFPA 921. One faction has argued that origin and cause should be considered a scientific discipline and NFPA 921 should be applied as the standard for proper fire scene investigation using the "scientific method." This basic premise, however, has been used in court challenges to suggest that in order to render an opinion as to the origin and cause of a fire, the witness must be able to testify that each of those theories (data and methodology) used in the investigative process were tested and subjected to the classic scientific process, as required by the Daubert standard of reliability. The fire scene investigation has been evaluated from the perspective of the fire scientist for challenging the origin and cause of a fire under this approach, even as NFPA 921 itself recognizes that fire investigation is both science and art.
Daubert and its progeny have not settled the issues involved in this debate but have only intensified the debate and controversy over proper fire scene methodologies and analysis.
A number of courts have addressed the question of whether it is appropriate to apply Daubert to "non-scientific" experts. In Iacobelli Construction, Inc. v. County of Monroe, 32 F. 3d 19 (2nd Cir. 1994), the Second Circuit found that Daubert did not apply to what it considered non-scientific evidence, only to "junk science".
The affidavits of Heuer and Eller do not present the kind of "junk science" problem that Daubert meant to address. See Tamarin v. Adam Caterers, Inc., 13 F.3d 51 (2d Cir. 1993) (Daubert "specifically dealt with the admission of scientific evidence"). Rather, they rely upon the type of methodology and data typically used and accepted in construction-litigation cases. Given the inherently voluminous and highly technical nature of the data in such cases, the parties in a construction-contract dispute usually must retain experts to summarize and interpret that data.
In Freeman v. Case Corp., 118 F.3d 1011 (4th Cir. 1997), a case which considered the testimony of a mechanical engineer in a product liability case involving the design of a tractor, the Fourth Circuit found that the engineer's testimony was sufficient to support a jury finding where it was based upon "his experience and training in tractor design in reviewing numerous published materials, including papers by the Society of Agricultural Engineers, extensive industry literature, various tractor specifications, and trade journals before reaching his conclusions." The Court further stated, at footnote 6, that "In cases like this one, where an expert relies on his experience and training and not a particular methodology to reach his conclusions, application of the Daubert [analysis] is unwarranted." For that proposition, several cases from the 2nd , 5th, 6th, and 10th Circuits were cited.
This argument is meritless. While the Supreme Court's ruling in Daubert was specifically directed at the admissibility of certain scientific evidence, the plaintiffs have not directed the Court's attention to a single case in which a court has refused to apply Daubert to a "technical analysis". On the contrary, the Daubert standard has been routinely utilized by lower courts in assessing the admissibility of "technical analyses" similar to that at issue in the present case. See, e.g., Strickland v. Royal Lubricant Co., 911 F. Supp. 1460 (M.D.Ala. 1995) (using Daubert test to assess admissibility of mechanical engineer testimony regarding faulty respirator); Dickerson v. Cushman, Inc., 909 F. Supp. 1467, 1472 (M.D. Ala. 1995) (mechanical engineer testimony regarding safe design of mobile tanks); Bowers v. Northern Telecom, Inc., 905 F. Supp. 1004 (N.D.Fla. 1995) (ergonomist testimony concerning computer keyboard design); Byrnes v. Honda Motor Co. Ltd., 887 F. Supp. 279, 282 (S.D.Fla. 1994) (testimony concerning proper safety equipment on motorcycle); Williamson v. General Motors Corp., 1994 WL 660649, *4 (N.D.Ga., Sept. 30, 1994) (mechanical engineer testimony concerning engine drag theory of automobile accident). Thus, the distinction urged upon the Court by plaintiffs has not been recognized by the lower courts in this Circuit.
"[C]ourts do not distinguish between the standards controlling admission of evidence from experts and evidence from machines . . .. Daubert applies not only to testimony about scientific concepts but also to testimony about the actual applications of those concepts." Id. at 988-99.
The court went on to explain that even if the testimony is considered technical, it is based on scientific theory and "Lee requires this Court to consider the legitimacy of both the scientific foundation and the actual application of that foundation employed by [the expert]." Thus, the Carmichael decision seems to blur the distinction between scientific and technical evidence in applying a Daubert analysis. This only serves to further complicate the debate over the meaning of Daubert in admitting expert testimony.
As courts from various jurisdictions are still trying to shed light on the full meaning of Daubert, the United States Supreme Court recently took up the issue again and provided some guidance and insights. In General Electric Company v. Joiner, 66 U.S.L.W. 4036 (1997) the Supreme court reviewed a case where the trial judge had entered summary judgment in favor of the defendant in a lawsuit alleging the plaintiff had contracted cancer as the result of exposure to PCB chemicals. The scientific evidence in support of the plaintiff's claim was derived from laboratory studies of mice which had been injected with massive doses of PCB chemicals and certain limited epidemiological studies suggesting a causal connection between PCB chemicals and cancer in humans. The trial judge ruled the evidence offered by the plaintiff failed to satisfy the requirements of Daubert, describing the evidence offered by the plaintiff's experts as "subjective belief or unsupported speculation." It was noted Joiner failed to present any credible scientific evidence of a direct causal connection between exposure to PCB chemicals and cancer.
On appeal, the ruling was reversed by the Eleventh Circuit which held the evidence should have been presented to the jury for a decision. The appellate court observed the Federal Rules of Evidence favor the admissibility of expert testimony as a general rule. Further, the appellate court applied a more stringent standard of review of the trial court's ruling, since the ruling was "outcome determinative" (i.e., resolved the entire case).
The United States Supreme Court overturned the decision of the Eleventh Circuit and reinstated the ruling of the trial court. In doing so, the Supreme Court reiterated and clarified some of the points made in the Daubert decision. First, the role of the trial judge as "gatekeeper" was reaffirmed. In particular, the trial judge was not only allowed to draw his own conclusions about the weight of evidence offered by an expert witness, but was expected to do so. It was noted this had been a function of the trial judge long before the Daubert decision itself. Since this was a proper role of the trial judge, the decision to accept or reject expert testimony would not be subjected to a more stringent standard of review on appeal. The decision of the trial judge would be given deference on appeal and it would require showing an "abuse of discretion" for the decision of the trial judge to be overturned.
The Supreme Court held the application of Daubert to expert testimony is not merely a review and approval of the methodology employed. It includes scrutiny of the ultimate conclusions reached by the expert witness based upon the methodologies and data employed to reach those conclusions.
Notably, the Supreme Court did not clarify the controversy over scientific evidence versus technical evidence. The Supreme Court did not address the issue in Joiner because it was clearly a "scientific evidence" case. That remains a major part of the controversy in construing Daubert and the admissibility of expert testimony. The Benfield decision did directly address this issue and demonstrated a new perspective on this critical aspect of fire investigation.
The debate over the application of Daubert to fire scene investigations has intensified at the point of deciding whether origin and cause determination is to be considered scientific evidence or non-scientific technical evidence. The advocates of the strict scientific approach bristle at the suggestion fire scene investigation is in any way "non-scientific", pointing to the many misconceptions previously used by fire investigators (spalling, v-patterns, etc.), which were only exposed by the fire scientists in recent years. They advocate the use of Daubert in fire scene analysis as the only means of preventing a return to the improper fire scene methodologies employed by unqualified investigators lacking proper scientific training. In contrast, the "technicians" argue fire scene investigation has never been a pure science like chemistry or physics even as it employs elements of both disciplines. The term "non-scientific" in the context of Daubert is a legal distinction, rather than a scientific one. It is not to say fire investigation is "unscientific" or devoid of any application of scientific principles. Instead, it is a recognition of the objective and subjective components which form a part of every fire scene investigation, more precisely the human component in examining, analyzing and, ultimately, interpreting fire scene evidence to reach a conclusion about the fire's origin and cause.
. . . . Experience alone can qualify a witness to give expert testimony. See Farner v. Paccar, Inc., 562 F. 2d 518, 528-29 (8th Cir. 1977); Cunningham v. Gans, 501 F.2d 496, 500 (2nd Cir. 1974).
Chief Pearson worked as a firefighter and Fire Chief for 29 years. In addition to observing and extinguishing fires throughout that period, he attended arson schools and received arson investigation training. The trial court found that Chief Pearson possessed the experience and training necessary to testify as an expert on the issue whether the second fire was a natural rekindling of the first fire or was deliberately set. That finding was not clearly erroneous.
These two decisions were the only reported cases considering Daubert in the specific context of fire investigation, until the Eleventh Circuit announced its decision in a case which has taken an entirely different view on the process of fire scene investigation.
In the recently decided case of Michigan Miller's Mutual Insurance Company v. Janelle R. Benfield, Case Number 93-1283, United States Court of Appeals for the Eleventh Circuit, the Daubert analysis was applied to a fire scene investigation. This case has attracted great attention within the fire investigation community and has become a focal point of the Daubert controversy.
. . . cites no scientific theory, applies no scientific method. He relies on his experience. He makes no scientific tests or analyses. He does not list the possible causes, including arson, and then using scientific methods exclude all except arson. He says no source or origin can be found on his personal visual examination and, therefore, the source and origin must be arson. There is no question but that the conclusion is one to which Daubert applies, a conclusion based on the absence of accepted scientific method. . . .
Interestingly, the Court in Benfield initially found the expert to be qualified to render opinions in the area of origin and cause of fires and allowed him to testify, based on his qualifications and credentials as a fire investigator. However, the judge struck the expert's testimony after it was presented based upon his methodologies in conducting the particular fire scene investigation in that case. Having stricken the expert's testimony, the judge then found that, as a matter of law, arson had not been proved by Michigan Miller's and directed a verdict against them on the arson issue.
The evidence was undisputed that the area of origin was on top of the dining room table. Therefore, the only issue was the cause of the fire. The expert testified that while he was conducting his investigation, he spoke with Ms. Benfield who told him that when she was last in the house before the fire there was a hurricane lamp and a half-full bottle of lamp oil on the top of the table. He further testified that he examined photographs taken by the fire department before the scene was disturbed and observed an empty, undamaged bottle of lamp oil lying on the floor with the cap removed (also undamaged), indicating that it had been opened and moved from the table prior to the setting of the fire. He also explained his observations at the fire scene which enabled him to rule out all possible accidental causes. He concluded that the fire was incendiary, using the "elimination method" long recognized as a valid method of determining fire origin and cause. He could not, however, determine the source of ignition for the fire. More importantly, he did not "scientifically document" his findings on various points and primarily relied upon his 30 years experience as a fire investigator, even as he held himself out as an expert in fire science adhering to the scientific method in conducting his investigation.
On cross-examination by Ms. Benfield's attorney, the expert was asked to define the scientific method and was asked the "scientific basis" for the taking of certain photographs apparently unrelated to the fire itself. The cross-examination continued by attacking each piece of evidence used by the expert that could not be said to be scientifically objective and scientifically verified. The investigator's determination of the smoldering nature of the fire and the time he estimated it burned before being discovered were discredited as not being based upon scientific calculations of heat release rate and fire spread, but merely the investigator's observations of the smoke damage and other physical evidence. The Court noted those points from the cross-examination in finding that the expert's methodology was not in conformity with the scientific method, relying instead almost exclusively on the expert's own training and experience, which it held to be inadmissible under Daubert.
On May 4, 1998 the Eleventh Circuit issued its ruling in the Benfield case. Contrary to the Tenth Circuit decision in Markum and the Federal District case in Polizzi Meats, the court found the investigator's fire scene analysis to be subject to the Daubert test of reliability. In reaching this conclusion, the court noted the investigator in Benfield held himself out as an expert in the area of "fire science" and claimed he had complied with the "scientific method" under NFPA 921. Thus, by his own admission he was engaged in a "scientific process" which the court held to be subject to Daubert.
Under the Daubert test of reliability, the Appeals court upheld the decision of the trial judge to strike his testimony. Noting it is a matter of the trial court's discretion to admit expert testimony, such a decision will be affirmed on appeal absent a showing of an "abuse of discretion" or that the decision was "manifestly erroneous." Under such a daunting standard, the trial judge is effectively given the "final word" on whether or not both the qualifications and findings of an expert witness will be considered reliable enough to be presented to the jury. It is not simply a matter of having the power to decide if a witness is qualified to testify as an expert, the substance of the expert's testimony and his professional conclusions will first have to meet the approval of the trial judge before they can ever be presented to the jury. The trial judge acting as "gatekeeper" can summarily reject the findings and conclusions of an expert witness, preempting the jury from making that decision. In the Benfield decision, various scientifically unsupported and scientifically undocumented conclusions of the investigator were cited as grounds for the determination that his observations and findings failed the Daubert reliability test. A chandelier hanging over the dining room table where the fire started showed no signs of having caused the fire, but the investigator had not conducted any tests or examinations to scientifically eliminate it as a potential cause of the fire. His observations alone were held inadequate. Similarly, his opinion the fire had likely been accelerated with the lamp oil contained in the bottle was rejected under Daubert, since he could not scientifically prove there had been oil in the bottle before the fire and he had not taken any samples from the fire debris to scientifically prove its presence or absence at the time the fire was ignited. These and other observations of the investigator were held to demonstrate there was no scientific basis for his conclusions, only his personal opinion from experience in investigating other fires.
It was not that the investigator was found to be "wrong" in the Benfield case. Indeed, there was never any evidence of an accidental cause of the fire. Ironically, although the Appeals Court upheld the decision of the trial judge to strike the testimony of the insurance investigator, it granted a new trial for Michigan Millers on the arson defense. The Appeals Court felt a prima facie case of arson had been shown at trial through the fire department investigator who initially classified the fire only as "suspicious" (with virtually no challenge to the scientific documentation of his opinion) and the many incriminating circumstances surrounding the fire itself. Those circumstances included the fact Ms. Benfield claimed she had not locked the deadbolts when she left the house, yet the deadbolts were locked when she returned to discover the fire. Ms. Benfield and her daughter (who had been out of town) had the only keys to those locks. Her assertion that the fire was extinguished by her boyfriend with a garden hose was refuted by the observations of the responding firefighters. Her insurance claim appeared to be significantly inflated. She had tried to sell the house and could not do so. She was trying to convince her estranged husband to transfer the house to her, but could not do so. Ms. Benfield had given conflicting and contradictory accounts of her activities immediately before the fire. In listing all of these reasons, the Appeals Court found there was compelling evidence of arson even as it discredited the findings of the insurance investigator that the fire was incendiary. The critical point in the case appears to be the distinction between the insurance investigator testifying as an expert in fire science and the fire department representative testifying as an expert in fire investigation.
The Benfield decision represents a conflict between the federal appellate courts in applying the Daubert standard to fire scene analysis. The conflict may be heightened as other courts consider this issue in future cases and will only be conclusively resolved when (and if) the Supreme Court confronts the role of Daubert in the field of fire investigation. Until that happens, fire investigators may face a formidable challenge in presenting their findings in the courtroom when held to the requirements imposed by the Benfield decision.
The Daubert requirement applied in the Benfield case results from the context of the investigation when presented in court. Where an investigator testifies as a fire scientist under the scientific method of NFPA 921, in the 11th Circuit the investigator will be required to scientifically document and verify the investigative process employed and the conclusions reached as a result of the investigation. Where the testimony is presented as a fire investigator relying upon investigative training and experience, even though using a fire science foundation to conduct the investigation, the Daubert standard will likely not apply. It is a distinction which can impact the admissibility of the fire scene investigation, depending upon how it is presented at trial.
The Benfield case is significant, yet it is not a decision of the Supreme Court and it has not been followed by any other reported decisions of other courts. Whether it is an isolated decision of the 11th Circuit based upon the specific facts of that case or representative of a new direction for courts in fire investigation cases remains to be seen. It is clear, however, that investigators must be aware of the need to properly document their findings and present them in court in a logical, systematic and scientifically valid manner to avoid a Daubert challenge. Only then can an investigator be assured the results and conclusions of an investigation will be considered by a jury to establish a verdict based upon the true facts of a case.

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Const. Me. Art. 1, § 6.
Title 14 § 4451 et seq.
Title 14 § 6321 et seq.
Const. U.S. Art. 1, § 10, cl. 1, Const. Me. Art. 1, § 11.
Const.U.S. Amend 14 Equal Protection; Const. Me. Art. 1, § 6-A.
Const. U.S. Art. 6, cl. 2.
Const. U.S. Amends. 1, 14.
Const. U.S. Art. 5; Const. U.S. Art. I, § 4, cl. ; Const. U.S. Art. I, § 2, cl. 1; Const. U.S. Amend. XVII, § 1.
Const. U.S. Amends. 1, 14; Const. Me. Art. 1, §§ 4, 15.
Const. U.S. Art. 1, § 8, cl. 3.
Const. U.S. Amend. 14; Const. Me. Art. 1, § 6-A.
Const. U.S. Amend.14 and Const. Me. Art. I, § 6-A.
Const. U.S. Amend. 7, 14, § 1; Me. Const. Art. I, § 6-A.
Const. U.S. Amend. 14, Const. Me., Art. 1, Sec. 1.
*Treatments = (U) unconstitutional , (Up) unconstitutional in part, (V) void or invalid, (Vp) void or invalid in part.
** Advisory opinion subject to future legislative or judicial actions.

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§ 1
Art. 1
Art. 1
§ 8
Art. 1
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INDICTMENT found and returned in the Superior Court on January 16, 1973.
The case was tried before Bennett, J.
Thomas F. Reilly, Assistant District Attorney (Robert J. McKenna, Jr., Assistant District Attorney, with him) for the Commonwealth.
crime of entering a dwelling being armed and committing therein assault with intent to commit a felony; the second charged the crime of armed robbery. The former indictment was placed on file and the defendant was sentenced to ten to twenty years at the Massachusetts Correctional Institution at Walpole on the armed robbery indictment.
An appeal was taken to the Appeals Court, and that court affirmed the conviction. Commonwealth v. Tarrant, 2 Mass. App. Ct. 483 (1974). We then granted the defendant's application for further appellate review.
The Appeals Court, in affirming the conviction, held, in substance, that a dog may be a dangerous weapon within the meaning of the armed robbery statute, and that on the facts of this case that crime was proved. We also affirm the conviction. We concur in the reasoning expressed in the Appeals Court opinion, and we add below certain additional reasoning impelled by the specific arguments addressed by the parties to us.
medium sized German shepherd dog, entered the victim's apartment, walked to the bedroom, now possessed of what appeared to be a kitchen knife, ordered the awakened victim not to move, and began to collect certain articles and money. At one point the defendant asked the victim a question warning him, "If you have another radio and you aren't telling me about it, I'll kill you." During this time the dog roamed about the room, at one point moving within "a couple [of] feet" of the victim's bed. The dog apparently responded to the defendant's commands, coming to the defendant when so ordered. At the close of the Commonwealth's evidence and after the introduction of all evidence, the defendant moved for a directed verdict on the armed robbery indictment; the motion was denied.
The defendant argues that his motion for a directed verdict should have been granted because a dog is a neutral instrumentality and is not per se dangerous as is a gun; that given this fact, the Commonwealth was required to prove that the neutral instrumentality was used or was threatened to be used in a harm-inflicting manner; and that without such an affirmative demonstration of the "dangerousness" of the neutral object, here the German shepherd dog, the crime was at most simple robbery. Otherwise, the defendant submits, neutral instrumentalities could become "dangerous weapons" for the purposes of armed robbery merely on the basis of the victim's subjective perceptions. Thus, in this case it is apparently the defendant's position that the Commonwealth was required to prove that the dog growled or in some way threatened the victim by its own conduct, or that the defendant threatened to order the dog to attack.
alleged that the defendant was armed with both a knife and a dog, and there was evidence to establish that he used a knife to further his purpose. Nevertheless, since we cannot discern now whether the jury found that a knife was used, or indeed may have concluded that the only dangerous weapon used was the dog, we proceed to examine the evidence and the judge's instructions concerning the dog.
crime of robbery. Cf. G. L. c. 265, Section 19. The statute defining the offense of armed robbery was first enacted in this Commonwealth by St. 1819, c. 124, Section 1, and has since that time been in force, with the exception that the punishment has been reduced from death to imprisonment in the State prison for life. St. 1839, c. 127. As stated in the early cases construing the statute, "[t]here is no provision, either express or implied, that the striking or wounding is to be inflicted with the weapon with which the robber is armed." Commonwealth v. Mowry, 11 Allen 20 , 22 (1865). Commonwealth v. Cody, 165 Mass. 133 , 137 (1896). The purpose of the statute is to make robbery while possessed of a dangerous weapon a more serious offense because such robbery "would naturally lead to resistance and conflict" in which use of the dangerous weapon may be expected to follow. Commonwealth v. Mowry, supra.
Thus, it is not only the actual use of the weapon in the sense of harm in fact inflicted that makes the crime of armed robbery aggravated; rather it is more importantly the potential for injury, and the tendency toward resistance, conflict, and violence in result which exists where robbery is perpetrated with the use of a dangerous weapon. See generally Perkins, Criminal Law 285 (2d ed. 1969); 67 Am. Jur. 2d, Robbery Section 4 (1973). It follows that, in robbery, as in assault by means of a dangerous weapon, whether the weapon is actually used to inflict harm is largely irrelevant. Rather, as we have stated, the relevant point is the "objectively menacing conduct of the defendant . . . [producing] the fear of harm which it was intended to produce, with the same consequential tendency to provoke a breach of the peace." Commonwealth v. Slaney, 345 Mass. 135 , 140 (1962).
Accordingly, we conclude that the Commonwealth, in order to prove the crime of armed robbery in this case, was not required to have affirmatively demonstrated that the dog was actually dangerous (Commonwealth v.
inquiry the jury should consider whether, based on the objective conditions at the time of the assault, the exhibition of the instrumentality could reasonably engender the victim's fear and whether the perpetrator of the robbery did intend to provoke that fear in order to facilitate the theft. [Note 5] Cf. Commonwealth v. Slaney, 345 Mass. 135 , 140 (1962). See generally People v. Graham, 71 Cal. 2d 303 (1969) (shod foot may in certain circumstances be a dangerous weapon); People v. Raleigh, 128 Cal. App. 105 (1932).
weapon if it reasonably appeared capable of inflicting bodily harm. [Note 7] This was a proper statement of the law.
Finally, there was sufficient evidence for the jury to find that the dog was in these circumstances a dangerous weapon within the provisions of G. L. c. 265, Section 17: the dog entered the victim's bedroom with the defendant who was carrying a knife; roamed about the room while the defendant searched for goods, moving within close proximity to the victim; and answered to the defendant's orders. A German shepherd is a relatively large and well known breed with the physical capability of inflicting harm. Further, the defendant did tell the victim that he would kill the victim if he lied to him. These are objective facts that could reasonably have persuaded the jury. Moreover it is a well known fact, one judicially noticed by the Appeals Court, that dogs may be trained to attack persons. See the statutes and cases cited in the opinion of the Appeals Court, Commonwealth v. Tarrant, 2 Mass. App. Ct. 483 , 486-487 (1974). Given these facts the jury clearly had sufficient evidence to find that the victim's fear was reasonable and was intentionally caused by the defendant through the instrumentality of the dog in order to facilitate the theft.
Judgment of Superior Court affirmed.
[Note 1] The crime of armed robbery in this Commonwealth is defined in relevant part as: "Whoever, being armed with a dangerous weapon, assaults another and robs, steals or takes from his person money or other property which may be the subject of larceny shall be punished by imprisonment in the state prison for life or for any term of years." G. L. c. 265, Section 17, as appearing in St. 1952, c. 406, Section 1.
[Note 2] While it is true that this court has distinguished the offenses of assault and assault by means of a dangerous weapon from armed robbery by pointing out that the gist of the latter crime is robbery being armed and not the use of the weapon (Commonwealth v. Nickologines, 322 Mass. 274 , 277 ; Commonwealth v. Chapman, 345 Mass. 251 , 254-255 ), it is also true that the material elements of assault and assault by means of a dangerous weapon have direct relevance to the crime of robbery. This follows because that form of assault, "in which the person senses that force may be used and is thereby put in fear, does meet the robbery requirement when the fear facilitates the theft." Commonwealth v. Richards, 363 Mass. 299 , 304 (1973). G. L. c. 265, Section 17. Cf. Commonwealth v. Jones, 362 Mass. 83 , 85 (1972). And, where the robbery is accomplished by an assault "it cannot be said the actor is judged by what he does without regard to the victim's reaction." Commonwealth v. Richards, supra, at 304. Commonwealth v. McCarthy, 360 Mass. 366 (1971).
[Note 3] The Proposed Criminal Code of Massachusetts c. 266, Section 16 (b) (1972), in line with our analysis, defines the more serious degree of robbery if the defendant or another participant "(1) is armed with a dangerous weapon or apparent dangerous weapon" (emphasis added). See Am. Law Inst., Model Penal Code, Section 222.1 and Comments 1-4, pp. 68-71 (Tent. draft No. 11, 1960).
[Note 4] Of course where the neutral object is in fact used to inflict serious injury it would clearly be a dangerous weapon. As stated in Commonwealth v. Farrell, 322 Mass. 606 , 614-615 (1948), where we held that a lighted cigarette used to inflict burns on the victim was a dangerous weapon, that term may be defined to mean "any instrument or instrumentality so constructed or so used as to be likely to produce death or great bodily harm" (emphasis added). See cases cited in 322 Mass. at 615, fn. 1.
[Note 5] We emphasize that the crucial point is whether the victim could reasonably have feared impending harm and it is not necessary that the victim be shown to have, in fact, experienced fear. In this regard we reaffirm the principle stated in Commonwealth v. Slaney, supra. However, we point out that evidence as to the victim's apprehension and subjective state although not determinative is material to this issue. Note that this standard differs from that applied in civil cases where fear or at least apprehension is essential to recovery. Restatement 2d: Torts, Section 22 (1965).
[Note 6] We think that the definition of a dangerous weapon adopted in the Proposed Criminal Code of Massachusetts c. 263, Section 3 (i), is well stated: "any firearm or other weapon, device, instrument, material or substance, whether animate or inanimate, which in the manner which it is used or is intended to be used is capable of producing death or serious bodily injury" (emphasis added).
[Note 7] The judge in instructing the jury on whether the dog could be considered a dangerous weapon stated in pertinent part: "And I put it to you, it was a reasonable fear [example of unloaded gun]. And under these circumstances, because such an action presents, ladies and gentlemen, such a serious breach of the public peace and creates, if you will, such a risk of activities that I can't anticipate, that such a person ought to be held for having used a dangerous weapon in that case that I gave you. . . . And this I am going to instruct you on, with any instrumentality, including an animal, that I appear to be capable of using against you right now, in such a way as to inflict bodily harm upon you; in short, any instrumentality, dead or alive, which appears reasonably to a supposed victim to be about to be used to inflict bodily harm upon him, can be found to be a dangerous weapon" (emphasis added).

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Debates over whether—and in which circumstances—Food and Drug Administration (FDA) approval of prescription drugs and medical devices should preempt State law have been in the forefront of Supreme Court jurisprudence and Congressional action for over a decade. However, when a State itself concludes that FDA approval is the correct standard for state law liability, one would think that would end the debate, right? Well, yes, but not without a few tantrums along the way.
Texas’s FDA Defense. In 2003, Texas enacted a tort reform statute which protects pharmaceutical products manufacturers (subject to specifically defined exceptions) from liability based upon a warning or other information that was approved by the FDA. Tex. Civ. Prac. & Rem. Code § 82.007(a). Texas took this step based upon the Legislature’s informed view that the State was facing an environment of excessive litigation that had caused a crisis in access to healthcare. Of course, the plaintiffs’ bar argued strenuously to the contrary. Many of their brethren appeared in hearings before the Texas Legislature; they accused the Legislature of caving to “Big Pharma” and argued that the FDA couldn’t be trusted to review drug safety. But the Legislature disagreed, and FDA-approval was adopted as the presumptive standard of care in pharmaceutical products liability cases in Texas.
Plaintiffs’ Bar’s Efforts to Judicially Nullify § 82.007(a). What was the response? Predictable. The plaintiffs’ bar turned to the courts to undo what the Legislature had done. They argued that § 82.007(a) should be read narrowly to apply only to expressly-labeled “failure to warn” claims, ignoring the fact that in pharmaceutical litigation, the adequacy of warnings is key regardless of the legal theory of liability. They argued that a jury should decide whether § 82.007(a) even applied, seeking a threshold whereby the jury could decide that the manufacturer secured regulatory approval through fraud on the FDA—despite clear U.S. Supreme Court authority that such a state law jury inquiry was preempted by federal law. They argued that the entire statute should be stricken if their interpretation of the fraud-on-the-FDA exception to § 82.007(a) was not accepted.
Thus far, each of these arguments has been rejected. As a result, one Texas plaintiff recently took a step that many Texans would consider a sacrilege: he asked the court to treat him as a Californian instead! The case is McKay v. Novartis Pharmaceuticals Corp., and on May 27, 2014, the United States Court of Appeals for the Fifth Circuit rejected this desperate gambit as well. McKay v. Novartis Pharm. Corp., __ F.3d __, No. 13-50404, 2014 WL 2198544 (5th Cir. May 27, 2014).
Fraud-on-the-FDA Suit Filed, 2006. Mr. McKay, a long-time Texas resident, filed suit in federal district court in Texas in 2006, asserting a products liability claim against Novartis Pharmaceuticals Corporation arising from his use of two FDA-approved prescription drugs, Aredia® and Zometa®, as treatment for prostate cancer. His case was transferred for pretrial coordination in a federal multi-district litigation (MDL) in Tennessee styled In re Aredia and Zometa Products Liability Litigation.In June 2008, Novartis filed a motion for summary judgment both as to Mr. McKay and a number of other Texas plaintiffs, arguing that their claims were barred by § 82.007(a).
Prior to Novartis’ filing, the one Texas federal court to construe the fraud-on-the-FDA exception to § 82.007(a) had sided with the plaintiff and denied the defendant’s argument for summary judgment based on the statute. See Ackermann v. Wyeth Pharm., 471 F. Supp. 2d 739, 749-50 (E.D. Tex. 2006) (holding that § 82.007(a) creates nothing more than a presumption of adequacy to be considered by the jury), summary judgment aff’d on other grounds, 526 F.3d 203 (5th Cir. 2008). Mr. McKay decided to attack § 82.007(a) head on, (baselessly) alleging that Novartis had “withheld from or misrepresented to the [FDA] required information that was . . . causally related to the claimant’s injury.” Tex. Civ. Prac. & Rem. Code § 82.007(b)(1). FDA never had made any finding that it had been so defrauded. But Mr. McKay argued that he should nonetheless be able to make this claim before a jury. This argument, of course, should fail because it would eviscerate the protection provided by § 82.007(a). A creative plaintiffs’ attorney (and are there any other kind?) will always be able to concoct an argument as to why a jury should believe—even if the FDA itself does not—that the FDA has been defrauded.
MDL Court (2008) and Fifth Circuit (2012) Reject McKay’s Suit. As the MDL court correctly held, however, plaintiffs’ argument failed on an even more obvious ground: It was contrary to the United States Supreme Court’s holding in Buckman v. Plaintiffs’ Legal Committee, 531 U.S. 341 (2001), that state law determinations that the FDA had been defrauded are preempted. See In re Aredia & Zometa Prods. Liab. Litig., No. 3:06-MD-1760, 2008 WL 2944910, at *5 (M.D. Tenn. July 25, 2008). Shortly after the MDL Court’s ruling, Texas federal courts agreed, and in 2012, the U.S. Court of Appeals for the Fifth Circuit put any doubt to rest, concluding that the Aredia®/Zometa® MDL Court had gotten it right. Lofton v. McNeil Consumer & Specialty Pharm., 672 F.3d 372, 380 (5th Cir. 2012) (holding that “[i]n cases like this, where the FDA has not found fraud, the threat of imposing state liability on a drug manufacturer for defrauding the FDA intrudes on the competency of the FDA and its relationship with regulated entities”).
McKay Pulls Out the California Card, 2013. So where did this leave Mr. McKay? Due to the omnibus nature of the defendant’s summary judgment motion in the MDL, the MDL court had not issued an immediate dismissal order as to the numerous plaintiffs at issue, but instead allowed each case to be remanded back to Texas federal district court for final disposition. By the time Mr. McKay’s case landed back in Texas, however, Lofton had been decided. Mr. McKay came up with some fashionably late legal arguments as to why § 82.007(a) shouldn’t bar his claim, but the Texas federal court would have none of it, correctly holding that Mr. McKay had waived those arguments when he failed to assert them in the MDL. Still, Mr. McKay had what he thought was an ace in the hole: While he lived in Texas, had brought suit in Texas, and had suffered his alleged injury in Texas, Mr. McKay had traveled to California for some of his medical treatment and it was a California doctor who had prescribed him the drugs that allegedly caused his injury. The MDL court had held that Texas law applied, but the choice-of-law issue was properly positioned for appeal.
After holding Mr. McKay to Texas law, the Fifth Circuit made short order of his remaining appellate arguments. The Fifth Circuit rejected Mr. McKay’s attempt to construe § 82.007(a) narrowly to apply only to failure to warn claims. Id. at 5-6. The court held that Mr. McKay had waived his other statutory arguments by failing to properly raise them below. Id. at *6-7. And it concluded that Mr. McKay had failed to provide the pre-suit notice required under Texas law for his breach of warranty claim. Id. at *7-8.