Category Archives: Forensic Engineering

Conference call on a “drone flight” reduces cost of civil litigation

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I had a conference call with a property owner while both of us were viewing aerial video of the property taken from a low flying drone.  It was a cost effective way of resolving some technical issues about the property without a day long trip plus time on site.

I took the video earlier during my forensic investigation of a problem there.  While analysing the video I concluded I had found key evidence relevant to the problem.  But like all air photo interpretation, ground-proofing was in order – get boots on the ground and your hands dirty confirming what you thought you saw.  This is a basic technique in civil engineering and terrain analysis.

I mailed a CD of the video to the property owner, then called and asked the owner to load the video on a computer, go to a certain frame on the video – easy to do with a counter at the bottom of the video – and tell me why the site looked the way it did at that location.  The owner did that and confirmed my interpretation of the surface conditions there – plus added to the significance of the evidence with some history of that part of the site.

It truly was a windfall of data got during a conference call with my client while each of us viewed the video.  Who would have guessed made possible with a drone – a device that may have started life as a simple toy flown by kids in backyards? (Ref. 1)

I’ve since thought about splitting computer screens and Skyping on one screen with my client while viewing aerial video on the other.  Just now I’m realizing I can examine anything on a split screen with a client while Skyping with him/her on another.

***

We then “toured” the rest of the property via the aerial video and confirmed the location of other features relevant to the problem.  I had seen these features on site but wanted to hear the client talk about them.  Surprisingly, another feature of the site was noted that was not so evident on the ground nor in the video.  It also was evidence relevant to my client’s problem.

So, all in all, quite a conference call.  There’s no question this method has gone into my arsenal of forensic engineering investigative methods.  A method that will also reduce the cost of civil litigation.

Reference

  1. Bartlett, P.Eng., Gary. Wellington, Nova Scotia. Private communication

Biased experts cured with a soak in the “hot tub”

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Intentional and unintentional bias is a fact of life in forensic investigation and reporting, in life in general for that matter.  Fortunately, there is a solution to the problem and one that will benefit from formal rules governing experts, like Rule 55 in Nova Scotia, when the bias-solution comes to the Atlantic provinces.

The bias-problem was reported in a story in the National Post with the headline “Hired gun in a lab coast: How medical experts help car insurers fight accident victims”. (Ref. 1)  Judges in Ontario noted the bias in the investigation and reporting of some medical doctors on injuries from car accidents.  Also the money they earned from companies who were favoured in the medical reports.

The problem is not unique to the medical profession.  Bias exists in the work of those in different professions and vocations.  I’ve seen it in reports during my engineering work in the Atlantic provinces – blatant bias in one report recently.

The solution to the problem was also noted in the National Post.  It’s the “hot tub” method in which experts give their evidence concurrently.  It was developed in Australia and is getting good reviews in the UK.  It’s being looked at in the US and Canada.

An Australian judge, Justice Steven Rares, gives a detailed explanation of the method with 46 references. (Ref. 2)  The “hot tub” label is obvious on reading Rares’ paper.  The Australian courts have been acknowledged as having the most experience in this technique dating back to about 1985. (Ref. 2)

Briefly, the way it works: After each expert has prepared his or her evidence they confer in a pre-trial meeting, without lawyers.  During the meeting they prepare a joint report on the matters about which they agree and those on which they disagree, giving short reasons as to why they disagree. (Ref. 2)

At trial – in the unlikely event it goes that far – the experts meet again and each is asked to identify and explain the principal issues as they see them, and each is given the opportunity to comment and ask questions of the others. Counsel then has the opportunity to examine the joint report and the experts’ comments on it. (Ref. 2)

There is resonance between this method and the requirements of the formal and strict rules governing experts and their reports. Well written reports by experts retained by opposing parties are a near perfect fit with the “hot tub” solution.

The growing bulk of the academic and legal papers on the topic seem to agree it’s a good idea. (Ref. 3)  However, there is a view by some that the formality of the new rules governing experts and their reports reduces the possibility of discussion amongst experts – key to the “hot tub” method. (Refs 2, 3)

I believe that problem will be overcome because most cases don’t go to trial – and even in the few that do, the solution involving experts’ reports will be made to work because it’s needed.  Well written expert reports and agreement amongst experts, as presented in a joint report, are essential to the successful and expedient resolution of disputes at all stages.

The “hot tub” method is working well in reducing bias, saving court time and reducing civil litigation costs. (Refs 2, 3)  That fact will carry the day.

It’s being called for in Ontario where judges see a bias-problem.  It would work well in the Atlantic provinces.

For certain it’ll work well in the hard sciences like engineering where we are disposed to working together to figure things out and solve problems, without getting cranky with one another.

References

  1. Blackwell, Tom, “Hired gun in a lab coast – how medical experts help car insurers fight accident victims”, National Post, January 7, 2017, page A7
  2. Rares, Steven, Judge of the Federal Court of Australia and an additional Judge of the Supreme Court of the Australian Capital Territory, “Using the “Hot Tub” – How Concurrent Expert Evidence Aids Understanding Issues”, October 12, 2013. Google, January 14, 2017
  3. van Rhijn, Judy, Hot-tubbing experts – should lawyers like it?, Canadian Lawyer July 4, 2011

(Posted by Eric E. Jorden, M.Sc., P.Eng. Consulting Professional Engineer, Forensic Engineer, Geotechnology Ltd., Halifax, Nova Scotia, Canada. January 31, 2017 ejorden@eastlink.ca)   

Why do I blog on forensic engineering investigation?

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I blog because I want you to know about an interesting field of engineering that I enjoy and that contributes to the resolution of disputes – a nice way to practice.  Also, an engineering practice that is relevant to the field of practice of many of you.

To some extent, ours is a litigious society and one with a lot of insurance claims involving engineering failure and personal injury.  Inherent in this situation are technical obligations for counsel and their need to know something about forensic investigation.  Some cases don’t go forward or claims settle until the technical issues are identified and investigated by an expert.

In many cases, an important duty for counsel is ensuring the technical evidence is properly understood by the court or tribunal. (See the Comment on Reason #1 below, also Ref. 1) There are other reasons I blog – I’ve identified and listed eight (8) below, but this is an important one.

I identified the following reasons by reviewing the 134 blogs that I have posted in the last four years.

Why do I blog?

Reason #1 I want to describe the nature and methods of forensic investigation for counsel and insurance claim consultants.  Including some of the newer methods like a low flying drone fitted with a camera to photograph the scene of an engineering failure or personal injury.

(An aerial photograph taken from a low flying drone was key to assessing the pattern of drainage at a contaminated site.  I was surprised at what I saw)

I want to describe how we carry out independent investigations, observe, analyse, draw conclusions and formulate objective opinions.  Then present quality and reliable evidence to counsel and the court or tribunal in simple, non-technical English.

Comment: Why is this a particularly good reason?  I’ve learned that counsel has obligations with respect to the expert’s report or affidavit. (Ref. 1)

In many cases, counsel must learn about the technical subject to which the evidence relates in order to identify the relevant technical issues.  He or she has an important duty in the presentation of technical evidence to ensure it’s properly understood by the court or tribunal. (Ref. 1)

Counsel also has an obligation to monitor the cost of civil litigation in view of the often small to medium size-sized cases in Atlantic Canada – and their sometimes less affluent nature.  This is because the extent of an all-stages forensic investigation is often similar regardless of whether the engineering failure or personal injury is small, medium-sized or catastrophic.

Costs can be controlled to some extent by how an expert is retained and how early.  There are at least eight (8) different ways. (Ref. 2)

It’s difficult for counsel to carry out their obligations to the court or tribunal and also monitor costs without having some understanding of how engineers do their work.

Reason #2 I also want to help readers understand why a forensic engineering investigation can be expensive.

Comment: The expense has everything to do with carrying out a thorough investigation and rendering a reliable opinion, as expected of the expert by the court or tribunal.  For certain, following routine investigative procedures in an effort to ensure no stone is left unturned. (Ref. 3)

As well, we don’t know when we start what we’re going to find that we must investigate.  Every failure and accident is different. (Refs 4, 5 and 6)  And then there are the surprise, follow-up investigations.  Not enough time and money is no excuse if we miss something.

Counsel can assist – with some understanding of forensic work – by identifying and selecting the relevant technical issues early in the case with the assistance of the expert.  Then having the expert focus on these in an effort to control costs.

Reason #3 To help counsel understand the importance of retaining an expert early in all cases, affluent and less affluent alike, the different ways an expert can be retained and the importance of monitoring costs – starting when the merits of a potential case are being assessed. (Refs 7, 8)

Comment: At present, experts are too often retained months or years after a case is taken and after the cost of the forensic investigation has been estimated by other than the expert.  This contrary to the advice of some of the most senior members of the legal profession. (Ref. 9)

For example, I was retained by counsel 11 years after a personal injury.  I visually examined the site and reported on what could have been done to prevent the accident.  The case settled four (4) months later.  To give counsel credit, he carefully instructed me on the technical issues to investigate which reduced the cost in this case.  This type of instruction doesn’t happen very often.

Reason #4 To help the justice system understand what they should be getting for the money spent on forensic investigation: That is, thorough investigations to ensure the quality of the evidence and the reliability of an expert’s opinion, and well written reports.

Comment: Rules governing experts have placed greater emphasis on the investigation and the expert’s report, to encourage the settlement of cases without going to discovery and trial.  There are excellent guidelines on forensic investigation and also on writing expert’s reports.  And excellent books, in general, on writing well.  I’m not sure these are being consulted to the extent they should.

Reason #5 I want to understand the forensic engineering field better myself, to learn by writing the blogs and “thinking on paper” – particularly, on how addressing the technical issues supports the resolution of disputes.

Comment: Like all of us, I’m learning all the time.  Most recently about the value of low cost, initial hypotheses on the cause of problems based on very limited data.  This task could save counsel money – as long as it’s remembered they are initial hypotheses.

For example, I hypothesized with considerable confidence on the cause of a catastrophic bridge failure during construction (Edmonton) – based on study of photographs in a newspaper.  In another, the cause of the sloping, sagging floors in a multi-story building (Halifax) – based on a visual examination of the floors and knowing how buildings are constructed.

Cases are also being settled today based on simple verbal reports after the technical issues are addressed.  In some cases not even a verbal report because counsel is on site and sees the results of the expert’s investigation unfold before him.

Reason #6 I want to increase my understanding of the civil litigation process.

Comment: Experts have a duty to acquire some understanding of the process.  The justice system expects this of us.

I researched and posted 10 blogs on the role of a professional engineer in the civil litigation process for the benefit of counsel and their clients. (Ref. 8) I learned a lot during this research.

It’s also been an eye-opener to learn of the dichotomy between the claimant’s right to justice and the expense of getting it.  Associated is the conflicting interests of the different parties to the process.

For example, the court, while encouraging counsel to expedite cases and control costs, wants quality evidence and a reliable opinion, which takes time and money.  The expert needs to do thorough investigative work to get this evidence.  He expects to get paid according to his schedule of fees, his level of expertise and the responsibility he bears.  If the claimant has retained the expert on a fee basis, he doesn’t want to spend any more than necessary.  If counsel has taken the case on a contingency basis and retained the expert, he wants to protect the worth of the file to his firm.  Quite a mix of interests.

Reason #7 Because of a sense of obligation to my readers who have seen the blog for four years and perhaps have come to expect it – to fill a void that was there.

Comment: Feed back suggests you do get something from my descriptions of the nature and methods of forensic engineering, and my comments on related matters.

A senior lawyer in Atlantic Canada said, “I love that stuff..!!”.  Another senior legal chap on the east coast commented, “…like reading them.”  And an insurance claims consultant said, “I read every one”.  It’s hard to beat testimonials like that.

Two senior counsel helped me with two of the blogs on the role of professional engineers in the civil litigation process – critiqued them before their posting.  One of these noted that experts are invaluable to civil litigation.

A fellow who blogs on business ethics, Dr. Chris MacDonald, Toronto, and has an international reputation in his field – he’s on a list of 100 influential business people that includes Barack Obama – saw fit to advise his twitter followers of my blog.

A monthly periodical on engineering construction – with an international distribution of 10,000, sought permission to publish one of my blogs.  The issue had a forensic engineering theme.  Then they came back a couple of weeks later requesting permission to publish two additional blogs in the same issue.

In four years, I`ve only had about 10 readers request removal from my distribution list.  This because they were retired or the subject did not relate to their field of practice.

Overall, quite a good reception – suggesting there was a void, and that I`m making a contribution to the civil litigation process and to insurance claims management.

Reason #8 For that satisfied feeling that comes from creating something – a piece of literature that did not exist before

Comment: A few months after I started blogging in June, 2012, I noticed a feeling of satisfaction after posting an item, a mild elation.  It was subtle but there.  On reflection, I realized I felt good because I had created something – a piece of literature that didn’t exist until I put pen to paper.  So, I blog for that satisfied, creative feeling.  You all know how elusive that feeling is in our busy work-life, balance-challenged lives.

On further reflection, I realized the feeling was also about finally publishing information on a topic or technical issue useful to my readers – finally letting it go.  I like my blogs to be as clear and well written as possible – in a sense, like well written, mini, expert reports.

References

  1. The Advocates` Society, Toronto, Ontario, Principles governing communicating with testifying experts June, 2014
  2. Peer review costs can be controlled.  Posted January 22, 2016
  3. Steps in the forensic engineering investigative process with an appendix on cost.  Posted July 15, 2013
  4. What do forensic engineers investigate in Atlantic Canada.  Posted October 9, 2014
  5. Forensic engineering practice in Eastern Canada.  Posted May 7, 2015
  6. How many ways can a building fail and possibly result in civil litigation or an insurance claim?  Posted July 10, 2014
  7. The role of a professional engineer in counsel’s decision to take a case.  Posted June 26, 2012
  8. A bundle of blogs: A civil litigation resource list on how to use forensic engineering experts.  Posted November 20, 2013
  9. Stockwood, Q.C., David, Civil Litigation: A Practical Handbook, 5th ed., 2004, Thomson Carlswell

 

 

“Taking the measure” – forming an opinion, of the cause of a fatal motor vehicle accident

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You can sometimes use a camera to take the measure of important technical issues during a forensic investigation.  And unexpectedly get the answers to your questions quickly and easily as I found out during one investigation.

I was retained by the RCMP a few years ago to determine if a pile of salt on a highway contributed to a fatal motor vehicle accident (MVA) – that was the technical issue.  I did this by carrying out field trials like they do in speed bump research.  These trials determine the effect of different sizes and shapes of speed bump on vehicles travelling at different speeds.

When I started these trials I didn’t know where they would take me except they approximated what took place during the fatal MVA – and involved measuring like engineers do.  There were no neat little formulae, no salt-pile-contribution-determining procedures in text books.  But I had to start somewhere – the way it so often is in forensic engineering investigation.  The end result was surprising in answering the question about the contribution of the salt pile.

I built a test site on a run way at the Shearwater airport like those for speed bump research.  I marked off a traffic lane on the runway the same size as that at the accident scene.by painting a centre line and shoulder lines.  I then constructed a pile of salt in the lane the same shape and size as that at the scene.  My tests would involve driving the vehicle in this lane, over the pile of salt and filming what happens – the effect.

Speed bump research records what happens to a vehicle at a speed bump by measuring and photographing its position in three dimensions:

  • Side to side in the traffic lane between the centre and shoulder lines,
  • Along the lane with a large ruler, and,
  • Vertically above the lane with another large ruler.

I did the same at my test site.  The painted traffic lines oriented the vehicle side to side in the lane.  A large ruler consisting of 1.0 foot graduations painted on the asphalt down the lane from the salt pile located the vehicle in that direction.  Another ruler consisting of 0.5 graduations marked on a sheet of plywood set at the side of the lane opposite the salt pile located the vehicle vertically.

I retained three professional photographers to film the position of the vehicle as I drove over the pile of salt.

  • One was in the cab with me to film what I saw and experienced.
  • Another was in the bucket of a boom truck down lane and 50 feet above filming the position of the vehicle side to side in the lane.
  • The third was off to the side of the pile of salt filming the position of the vehicle against the backdrop of the rulers painted on the plywood and on the lane.

I also staged the position of the vehicle on the salt pile and had this filmed from a sea king helicopter for illustrative purposes – you would use a drone fitted with a camera to get these pictures today.  The photographer with his camera is shown above in my blog site masthead.

The RCMP told me that the vehicle was travelling at a speed of 50 km/hr or more when it hit the pile of salt.  This was based on tests by their accident reconstruction specialist.  I planned to do my test at that speed but start at the lower speed of 20 km/hr and gradually increase.

I drove the vehicle over the pile of salt at 20 km/hr as the cameras rolled.  It was pretty well all I could do to keep the vehicle in the lane after striking the pile of salt – it did veer off to the right a little and this was captured by the camera man in the boom truck.  Striking is an apt term.  And it was all the camera man in the cab with me could do to keep his camera steady as the vehicle rocked and rolled.

We saw on viewing film of the vehicle against the backdrop of the big rulers that the vehicle got 2.0 feet of air on striking the pile of salt and the front wheels stayed aloft for 18 feet before landing on the test lane again.

The three cameras recorded about 30 minutes of film.  I viewed this film and edited it to a four minute film clip to include in a preliminary report to the RCMP.  I reported that I could not continue the testing at higher speeds until I had safety and rescue procedures in place for the driver.

The RCMP and counsel on viewing the film clip and learning of my need for safety measures stopped all further testing.  “No need to continue testing, we have our answer”.

They quickly saw in the film clip the effect, the contribution of the pile of salt to the erratic behaviour of the vehicle and its airborne trajectory at 20 km/hr.  It didn’t take much imagination to know how the pile of salt would contribute to a fatal MVA at a speed of 50 km/hr.  Seeing is believing when you’re taking the measure of some things.  That’s often more than good enough for the justice system.

But all of this was also quantified by filming and recording the 2.0 foot and 18 foot airborne measurements and the veering of the vehicle off to the side of the traffic lane.

 

The “generalist“ forensic engineer

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The forensic investigation of many failures and accidents needs input from more than one engineering, scientific or technical specialist.  These cases require the services of a principal investigator – a “generalist” forensic engineer.

The role of the generalist engineer is recognized by the American Society of Civil Engineers (ASCE) in their Guidelines for Forensic Engineering Practice. (Ref. 1)

The engineer retained by counsel serves as a principle investigator as soon as he recognizes his particular expertise must be supplemented by that of others. He identifies these specialties, coordinates their efforts, studies the findings of each, synthesizes and analyses all data, including that of his own specialty, draws conclusions and formulates an opinion as to cause.

This process is almost always the case with catastrophic failures.  But occurs often enough during investigation of the small to medium sized failures that characterize forensic engineering in Atlantic Canada. (Refs 2, 3)  And I suspect in Canada in general.

These smaller failures are seldom alike.  As a result, few engineers get to investigate hundreds of a particular type of failure or accident and specialize in it.  I seldom see the exact same failure a second time and must consult with other specialties often enough to supplement my expertise.  Or research the subtle differences between seemingly similar failures and accidents.

For example, slip and fall accidents – five that I’m familiar with are all slightly different, one in an odd way, and foundation failures, land slides, floods, fires, soil-steel bridge collapses, marginal wharf failures, old fuel oil spills, buckled bridge beams, defective step ladders, vibrating buildings, etc.  There are lots of specialists in different fields of practice, but not in all, and those that are available are not necessarily just down the street and around the corner.

In spite of the variation, we engineers are still retained to investigate the problems that occur and we do this quite well.  We are recognized as problem solvers and qualified to “figure things out” – including when we must supplement our particular expertise with that of others.

We function as principal engineers – “generalist” engineers, and also as specialists in our particular field.  We have the following key attributes of experts, including today a couple of important additional attributes:

Key attributes of experts:

  • Education
  • Training
  • Experience
  • Skill, and,
  • Knowledge

Important additional attributes of experts serving as principal engineers:

  • Principal investigator, “generalist” forensic engineering skills
  • Report writing skills (most disputes are resolved out of court today based on an expert’s report)

You might be interested in four examples of forensic investigations that needed input from several specialties, all directed by a principal investigator, a “generalist” engineer:

Example #1

I investigated the cause of a soil-steel bridge failure that permanently disabled a car driver.  During that investigation I retained the services of:

  • A land surveyor,
  • A hydrologist,
  • Two engineers experienced with corrugated steel structures – one in Ontario, the other in Massachusetts,
  • A metallurgist, and,
  • A metal detectorist (person who locates buried metal with a hand-held electronic device)

These specialists took part in the investigation in addition to my own specialties in civil and geotechnical engineering.  They contributed to formulating an opinion on the cause of the bridge failure.

I functioned quite well as the principal investigator in this case – the generalist forensic engineer.  However, if this had been a steel or concrete bridge I would have quickly referred counsel to a structural engineer experienced in bridge design as better qualified to be the principal investigator.  I could have contributed by investigating the adequacy of the bridge foundations.

Example #2

In another case, the RCMP asked if I could determine if a pile of soil-like material on a highway contributed to a fatal motor vehicle accident (MVA).  The vehicle drove over the material then off a 75 foot cliff and into the sea.

I wasn’t sure until I realized the pile of material was an earth structure – a structure in the built environment formed of earth.  Civil engineers specializing in geotechnical work are well qualified to investigate earth structures.

But, I wasn’t out of the woods.  I researched the literature on the investigation of fatal MVAs involving obstacles on a highway, and didn’t find a thing.

But I did catch onto the fact that the pile of soil-like material on the highway was like a speed bump, and there was an extensive literature on speed bump research and design.  So, I investigated the effect of the material on the vehicle like it was a speed bump.  The investigation involved full scale field tests on an airport runway and a lot of photography.

The specialists assisting me as the principal investigator were:

  • A helicopter pilot
  • Three professional photographers
  • A film editor
  • Accident reconstructionist (the RCMP provided data gathered by their specialist on how the accident occurred)
  • Boom truck operator
  • Contractors to build the earth structure and paint traffic lanes on a runway

Example #3

The continuing and excessive foundation settlement of an industrial building 10 years after it was constructed – ongoing 10 mm settlement per year, is another good example of a principal engineer directing a forensic investigation.  Also, in this case, designing a method to stop the settlement.

It was an easy investigation of cause – I determined the foundation soil conditions and saw immediately that they were inadequate.  Fortunately, the soil conditions were also perfect for grouting as a way of strengthening the soils and stopping the settlement.

The investigation involved the following specialties including my own in civil and geotechnical engineering:

  • Geotechnical engineer
  • Structural engineer
  • Land surveyor
  • Grouting engineers
  • Borehole drillers
  • Peer review engineer

Example #4

A final example is the Edmonton bridge failure that occurred last March, 2015  This was a serious structural engineering failure.  I would not qualify to direct such an investigation but would qualify to contribute input on the adequacy of the foundation soils supporting the bridge.  Also, as a civil engineer, I can look at the elements in the failure and suggest possible causes, as I did last year.

I can easily imagine a principal investigator, a “generalist“ engineer, retaining the services of the following specialists during investigation of the failure:

  • A micro-meteorologist (to assess the weather and winds at the bridge site at the time of the failure)
  • A bridge design engineer
  • A structural engineer
  • A bridge construction engineer
  • Off-site steel beam/girder fabricator
  • Crane operator
  • Foundation engineer
  • Geotechnical engineer

References

  1. American Society of Civil Engineers (ASCE), Guidelines for Forensic Engineering Practice, 2nd ed, 2012, page 9.  (ASCE has represented civil engineers in North America since the mid 1800s)
  2. Forensic engineering practice in Eastern Canada.  Published May 7, 2015
  3. What do forensic engineers investigate in Atlantic Canada?  Published October 9, 2014

Peer review costs can be controlled

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Peer review adds to the cost of civil litigation, there’s no question about that.  But an acceptable cost if the expert carries out a thorough forensic investigation in a complex case and prepares a well-written report – and there are no deficiencies in either.  And if there are, a worthwhile cost finding this out early in the case.

Still, an extra cost.  I thought, what can be done about this extra cost?, as I was writing last week’s blog on the need for peer review.  I realized there is an answer and there’s information out there already. (Refs 1 to 4. Ref. 1 is a good read)

The problem is that most failures and accidents are small, fortunately – not catastrophic, and the potential damages are also small.  The cost to determine cause and to report findings can be significant relevant to the damages claimed by the injured party or the worth of the file to the law firm.  The problem is not unique to Atlantic Canada.  The Advocates Society, Ontario recognizes ‘affluent’ and ‘less affluent’ cases.

Yet the justice system needs the technical issues investigated and explained regardless the size of the case – sometimes there is no case until these issues are investigated.  And forensic engineers must do the same thorough investigation and write the same exacting report, also regardless.

Judicious selection of how an expert is used in all cases but particularly in the smaller, less affluent cases is the answer.

In the past, experts have been retained in one of two ways:

  1. Consulting expert
  2. Testifying expert

Today and in future – almost without exception, experts will serve as consulting experts in the resolution of disputes rather than testifying experts.  This is because of changes in civil procedure rules governing experts.  These are designed to expedite resolution of disputes and reduce the number of cases going to trial.

The consulting expert will submit one or the other of two basic reports according to Counsel’s instruction:

  1. Oral report
  2. Written report

The oral report can be presented in one of two ways:

  1. Factual oral consulting report
  2. Interpretative oral consulting report

(A factual report gathers together all the data from the office, field, and laboratory investigations and submits this to Counsel – without analysis and interpretation)

(An interpretative report analyses and interprets the data and draws conclusions on the cause of the failure or accident.  It can be quite comprehensive, particularly in a complex case)

(The cost of a factual report is easier to predict and control.  The cost of an interpretative report is difficult to predict and control.  Sometimes very difficult because you don’t know what you’re going to find at the site of an engineering failure or accident if you follow the evidence, (Ref. 4))

A factual oral consulting report to retaining Counsel could be quite inexpensive compared to a written report to the requirements of civil rules.  A peer review of the factual oral report could also be relatively inexpensive compared to a review of a written report.  The peer might discuss the facts with the expert – orally, and the investigation supporting these.

Similarly, an interpretative oral consulting report could be relatively inexpensive with or without a peer review compared to a written report.  More expensive, of course, because of the interpretative element, but still less than a written report.

The written report can also be presented in one of two ways:

  1. Factual written consulting report
  2. Interpretative written consulting report

The relative costs of these two ways of writing a report on the forensic engineering investigation are apparent – more for interpretative and less for factual, and more or less still with or without a peer review.

So, the cost increases from least – a factual oral consulting report without peer review, to most – an interpretative written consulting report with peer review.

How Counsel retains an expert – there are 8 different ways; count them – is a key to reducing the costs in less affluent cases while seriously considering peer review.  Retaining an expert at the beginning of a case is another key.  I did not include testifying expert because this role is less likely in future.

***

It’s important to remember, “An expert’s report is a critical, make-or-break document.  On the one hand, a well-written report will make testifying later at discovery and trial much easier … On the other hand, a poorly written report … can turn discovery or trial into a nightmare …” (Ref. 5)  And, I might add, can turn questioning and rebutting the report before discovery into a cakewalk, a tsunami, if the report is distributed to all parties.

References

  1. How experts are retained in civil litigation is changing and the changes are good for counsel and the justice system. Posted May 1, 2014
  2. Reducing the cost of forensic investigation – it’s being done now by default not by plan. Posted September 22, 2014
  3. Peer review in forensic engineering and civil litigation. Posted November 26, 2013
  4. A bundle of blogs: A civil litigation resource list on how to use a forensic engineering expert. Posted November 20, 2013
  5. Mangraviti, Jr. James, J., Babitsky, Steven, and Donovan, Nadine Nasser, How to write an expert witness report, Preface, Page xiii, SEAK Inc., Falmouth, Mass. 2014

 

 

Peer reviewing an expert’s report ensures the justice system gets what it needs

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That is, thorough forensic investigations and reliable, objective expert reports.

Civil procedure rules governing expert’s reports are strict. (Ref. 1, 2)  You can’t have a good report without a thorough investigation.  Peer reviewing an expert’s report ensures a thorough investigation.

Peer review is needed but isn’t being provided.  I’ve read four poorly written expert reports in recent years based on inadequate investigation and reasoning.  Really, very little investigation in most cases and no reasoning in all cases.  I’m sure there are others out there.

Peer review is needed in forensic engineering every bit as much as in scientific research.  Research papers are published in reputable journals only after they are peer reviewed.

Peer review is provided for in the remediation of petroleum contaminated sites.  The provincial governments in Atlantic Canada reserve the right to peer review a report on the remediation of a contaminated site according to the Atlantic risk based corrective action process (RBCA). (Ref. 3)

There’s no question the standard of care for expert reports must be as high as that for research papers and reports on remediated sites.

I published an item on peer review in the past (Ref. 4) but was reminded of it when I was reviewing a recent handbook on expert work. (Ref. 5)  Also when I was reviewing the RBCA process recently.  Peer review is referenced 38 times in the index of the 626 page handbook.  The authors discuss peer review on dozens of pages.  Their guidance in this text – and previous handbooks on report writing (Ref. 6, 7), is based on review of 100s of civil cases.

***

In science, peer review is the process by which an author’s work is checked by a group of experts in the same field – his peers, people of similar qualifications, experience, and competence.  They make sure it meets the necessary standards before it is accepted and published. (Ref. 8)  It constitutes a form of self-regulation by qualified members of a profession within the relevant field (Ref. 9).

Put another way (Ref. 10), peer review is specifically geared to (my parenthetic additions):

  • Catch any potential biases of the primary examiner (the forensic engineer),
  • Promote the examiner’s heightened diligence (promote thorough forensic investigation)
  • Pursue each important clue (follow the evidence), and,
  • Recognize the clinical significance as it surfaces (objectively recognize and accept the findings).

Peer review has been practised a long time in science and is essential to obtaining good science.  Forensic engineering must receive the same rigid peer review before going to the justice system to further ensure the system gets what it needs.

***

It would be easy to include a simple form of the peer review process in the investigation of a failure or accident in the built environment.  As easy as Counsel getting an independent consulting professional engineer to review the investigation and report of the investigating engineer.  To check that the investigation was carried out to the standard of care existing at the time and that the report meets the requirements of rules governing expert reports.  From that simple start, gradually move to a more comprehensive process over time.

Professional engineering societies have similar guidelines for those practicing in the forensic geotechnical, foundation, and structural engineering fields (Ref. 11 to 14).

***

The adoption of the peer review process will be driven in part by the increased emphasis on preparation of a report for the justice system – and less emphasis on discovery and trial, as a result of civil procedure rules such as Rule 55 in Nova Scotia.

The rule spells out the requirements of the expert.  They are exacting in requiring that the expert is thorough, reliable, and objective, and reports his evidence and reasoning, and also states what other conclusions might have been drawn from his evidence. (Ref. 1, 2)

***

Better that Counsel arrange to have his expert`s report and investigation peer reviewed and catch any deficiencies that might be present, than an expert for an opposing party do this.

References

  1. Counsel, tell your expert about the Rule governing expert opinion. It’s important. Published September 11, 2015 at www.ericjorden.com/blog
  2. Nova Scotia Civil Procedure Rule 55, sub-section 55.04
  3. Atlantic Risk Based Corrective Action process (RBCA), 2015
  4. Peer review in forensic engineering and civil litigation.  Published November 26, 2013
  5. Mangraviti, Jr., James J., Babitsky, Steven, and Donovan, Nadine Nasser, How to Be a Successful Expert Witness: SEAK’s A-Z Guide to Expert Witnessing, SEAK, Inc, Falmouth, MA 2015
  6. Mangraviti, Jr., James J., Babitsky, Steven, and Donovan, Nadine Nasser, How to Write an Expert Witness Report, SEAK, Inc, Falmouth, MA 2014
  7. Babitsky, Steven and Mangraviti, Jr., James J., Writing and Defending Your Expert Report: The Step-by-Step Guide with Models, SEAK, Inc., Falmouth, MA 2002
  8. Merriam-Webster Dictionary, 2016
  9. Wikipedia, Google
  10. The Forensic Panel, Google
  11. Lewis, Gary L. ed., Guidelines for Forensic Engineering Practice, ASCE, the Association of Civil Engineers, Virginia, 2003
  12. ASCE, Guidelines for Failure Investigation, Virginia, 1989
  13. Ratay, Robert T., Forensic Structural Engineering Handbook, McGraw Hill, New York, 2000
  14. ASFE, Association of Soil and Foundation Engineers, A Guide to Forensic Engineering and Service as an Expert Witness, 1985
  15. Merriam-Webster Dictionary, 2013
  16. Wikipedia, Google

 

The justice system and messy construction sites – Seeing is believing

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There’s an argument for the justice system to go on site and see what it’s really like for the expert.  See what he’s got to deal with, and describe and explain to them later.  That means judges, juries, and counsel for all parties, also insurance claims managers.  It’s messy out there and not at all clean, tidy and precise as might be gathered from the text books.

I’ve seen the justice system on site less than half a dozen times in the years I’ve been investigating engineering failures and accidents.

I thought of this recently when I was examining and measuring conditions on a construction site.  I was knee deep in messy, wet pits in the ground and cramped in tiny, grubby crawl spaces.  And it was raining off and on too.  I was happy though, I was collecting valuable data.

But how to tell the justice system later that conditions were different from what I expected and more difficult and expensive to quantify?  In this case, less accurate for one element of the problem but more informative for a second.

How to describe this in words?  I got pictures and this will help.  But, seeing is believing.  It’s easier if the justice system has seen the conditions.  It’s easier then for the expert to explain the technical issues arising from the conditions associated with the failure or accident.  Most of our knowledge is acquired visually – about 80 to 85 percent, so come out and see and understand better what the expert is saying.

Bibliography

  1. An expert’s “dirty hands and muddy boots”.  Posted December 20, 2013
  2. The messiness of some forensic engineering and insurance investigations is illustrated by messy snow banks.   Posted April 14, 2015
  3. More about messy, lumpy Mother Nature and how we deal with her effect on our forensic engineering and insurance investigations.  Posted April 23, 2015

 

 

 

“Expensive” experts are not so expensive compared to the cost of key technical issues going undetected

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This is particularly the case when counsel is assessing the merits of a case.  There’s a strong argument for consulting an “expensive” expert then.

This is echoed in the remarks of no less an authority than John Sopinka, former judge, Supreme Court of Canada (Refs 1 and 2) and in the text by the quite respected David Stockwood, Q.C., Ontario. (Ref. 3)

A key technical issue missed by counsel could render a case untenable.  Or be too expensive to investigate relative to damages thought due the Party and to the worth of the file to counsel.  Best to spend some money on an expert at the case-assessment stage than possibly lose a lot of money later.

I blogged last year on the importance of retaining an expert “…early in the life of a case”. (Ref. 2)  I was reminded of its importance to a Party seeking justice and the money involved on reading the following in an engineering case study:

“As a wise man once said about “expensive” experts, “When you have to hire one to undo the work of an amateur, they don’t seem so expensive after all.” ” (Ref. 4).

The case study was of inadequate renovation of a building that cost the owner $300,000 a few years ago. (Ref. 4)  The expert’s fees are certain to have paled by comparison.  I also recently investigated an inadequate renovation that is likely to cost a lot of money to fix.

Counsel almost always recognizes that the cause of a failure or accident must be determined – a key technical issue for sure.  But there are often other issues – key ones and subordinate ones – that are beyond counsel’s technical expertise to identify.  Some of these might need to be investigated in determining cause, at unexpected expense.

I’ve had the occasional investigation stopped because of mounting cost to the worth of the file.  Counsel’s costs are cut but I wonder to what extent justice for the Party is compromised by an incomplete forensic investigation?

The cases likely will be argued still but without benefit of complete technical input.  One case is certain to be argued and likely cost the law firm much more compared to the cost of an “expensive” expert.  In this case, for want of a simple, one line, 2″ long, high school, arithmetic calculation that would quickly resolve an important technical issue in counsel’s favour.  Without the calculation three parties will keep arguing their respective subjective assessment of the size of a feature in the landscape – on and on and dollar after dollar.  I offered to report verbally but senior management declined.

What happened in these cases was that non-technical people – counsel, with all due respect, estimated the cost of technical services unrealistically low when the merit of the cases were being assessed.  Yet in these cases – three come to mind, the awards would be well into six figures.

Consulting with an “expensive” expert before a case is taken will ensure most if not all technical issues are identified.  And the need recognized to investigate these at some cost if the case has merit.  The expert might cost in the very low 1,000s, the possible need for forensic investigation in the low 10,000s won’t be a surprise, and awards in the 100,000s won’t be compromised by investigations stopped in mid-task.

Reference

  1. Sopinka, John, Judge, Supreme Court of Canada, The Use of Experts, Chap 1, The Expert: A Practitioner’s Guide, Volume 1 by Matthews, Kenneth M., Pink, Joel E., Tupper, Allison D., and Wells, Alvin E. Carswell 1995
  2. Please, Counsel, retain an expert “early in the life of the case”.  Posted March 27, 2014
  3. Stockwood, Q.C., David, Civil Litigation, A Practical Handbook, 5th ed, 2004, Thompson Carswell
  4. Reference Advocates Principles
  5. Nicastro, David H., editor, Failure Mechanisms in Building Construction.  ASCE Press, 1997 page 26

Bibliography

  1. The role of a professional engineer in counsel’s decision to take a case – Update Posted May 21, 2014
  2. A bundle of blogs: A civil litigation resource list on how to use forensic engineering experts, Posted November 20, 2013
  3. Lewis, Gary L., editor, Guidelines for Forensic Engineering Practice, American Society of Civil Engineers (ASCE), 2003

 

“Slow”, thorough engineering investigation solves flooding problems

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Going slow – like many months for a simple investigation, longer still for complex ones, ensures the cause of the problem is determined.  And the investigator doesn’t succumb to the tyranny of the obvious – as I almost did. (Ref. 1)  You’ve got to have time to think and reflect.  Going slow also helps the owner adjust to seeing his property taken apart during the work.

I investigated the cause of two wet basements in the past 1.5 years.  More than just wet, a flood in one case, 3 inches deep, and very wet in the other.

There was also water in depressions on the properties that sloped down to nearby lakes.  That meant poor surface drainage and probably high water tables – evidence of a possible cause of the wet basements..

The homeowners helped in both cases.  One used a novel method for determining the correct cause of her wet basement.  I’ll use her simple technique in future.  The other was in the right place at the right time to see the actual cause of their wet basement, and in a very striking way.

Both Houses

Both basements were finished including the floors.  But you could see water flowing from under the finished floors and across the exposed concrete floor in adjacent furnace rooms.  The water came from the direction of the basement walls on the up-slope side of the properties.

We cut small holes in the gyproc at the bottom of the walls and gradually added other holes and enlarged them – in a sense, we chased the wet basement problem.  This exposed the wood sill at the bottom of the walls and the area where the concrete floor abuts the concrete wall.  We also took up part of the finished floor in one house.

The owners helped and we went slowly so they could get their heads around the dismantling and the mess.  These were well-appointed, $350,000 plus homes, one about 30 years old and the other 40.

The exposed wood sills were water stained at both properties.  The stain gradually faded along the length of the wood sills from a dark area in the middle.  The stain indicated the wall was leaking, and the dark area suggested the location of the leak.

Just to be sure, we cut small holes in another wall in each house well away from where the water was seen in the houses.  We saw clean, unstained wood sill indicating no leaks.  There was a leak along one of these adjacent walls 20 years earlier that was fixed by constructing a new, perimeter footing drain.  Fine soil clogs these drains often enough after a few decades.

I concluded a clogged footing drain was the cause of the flooding at both houses, a good initial hypothesis as to cause.  But, I was in for a surprise.

(You can imagine there was quite a mess in both houses now with dismantled wall debris everywhere.  But we were going slowly – weeks now, and soon months)

Where was the leak?  How was water getting from a clogged footing drain into the basement – if that was the source?  The concrete wall was stained a little at the location of a hairline crack in one house.  But this crack was so fine I quickly dismissed it as the source of the leak, and it was above the suspect footing drain.  Surely such a tiny crack was not the cause.  Surely.

Where was the leak then?  I thought about the construction joint where the concrete floor abuts the concrete basement wall in both houses.  It measured 1 to 1.5 mm wide and ran the length of the walls.  The construction joint was also down near the suspect footing drains on the outside of the basement wall.

I concluded that the footing drain at both homes was clogged after 30 and 40 years, water was backing up in the drains and getting into the basement through the construction joints.  We would dig up the footing drains at both houses and fix them.

It took me a while to conclude that construction joints could admit so much water.  The penny dropped, so I thought, when I realized that not much water would flow through a 1.5 mm hole but a lot would flow through 100s of 1.5 mm holes joined together.  Like a line of holes in a sieve or the holes in a garden hose used for irrigation.

House #1

But, again, just to be sure, we uncovered a greater height of wall in House #1 – more time more debris, and saw that an area of the wall was honeycombed a few feet above the wood sill.  There were small holes in the wall between the pieces of gravel in the concrete.  The inside wall was porous.  This happens when the concrete is not well mixed during construction.  It doesn’t usually cause a problem because it’s localized and above the footing drain.

Fortunately, we had a very heavy rain a few hours after work.  My client called to say water was flowing from the honeycombed area like water from a tap.  It stopped shortly after the rain stopped.  He videotaped and I saw that it was so.  My client was in the right place at the right time.

We uncovered more wall later and found that a large area was honeycombed.  We also uncovered the outside of the wall and saw that the honeycombing – the porous area, continued through the wall.  We also saw that the water table was at the level of the honeycombing.

There was a source of water and a means for the water to get through the wall, through the porous honeycombing.  The honeycombing and the high water table were the cause of the wet basement in this house, not the footing drain.

We fixed the leak by patching the outside of the wall well above the footing drain that we had considered digging up, and at much lower cost.

(The patching details are not so important to my message here about the advantages of a “slow”, thorough engineering investigation)

House #2

Also, again to be sure, my other client, House #2, decided to investigate the innocent-looking, fine crack in their wall when I was away.  She simply took a garden hose and let it run for some time at different locations against the wall starting at the fine crack.

She saw that water flowed through the crack and stopped when she removed the hose.  She also saw that less water flowed when the hose was at increasing distances from the fine crack.  The fine crack and a water filled depression in the sloping ground were the cause of the wet basement, not the footing drain. 

We fixed it too by patching the outside of the wall at the location of the crack, also at a much lower cost than digging up the footing drain.  We did expose the top of the footing drain over a short distance during the patching.  It appeared to be well constructed.

(We are going to monitor the effectiveness of this repair over the next couple of years)

***

So, four or five months later in both cases after a “slow”, thorough investigation – and a lot of gradually accepted mess, we determined the correct cause of the wet basements.  And we fixed them for a lower cost than might have been the case if I had remained in the grip of the obvious.

References

  1. “Getting seduced by the tyranny of the obvious”  Posted December 9, 2013 at www.ericjorden.com/blog