In these COVID-19 times, why not “stay home”, as we’re told, and do a virtual visual examination of a failure or accident scene? Simply read the documents and study the photographs then hypothesize cause, at least initially.

Recognize the document study for what it is, a virtual visual examination, and accept it as a quite valid task in a forensic investigation. At least in the short term, in the interest of staying safe.

There’s no question a lonely expert can still go to a scene and do a visual examination, get a wealth of data and be quite safe. (Ref. 1) It’s just that a virtual visual examination of a site is good in the beginning too, can sometimes, unexpectedly, see the cause, and is less expensive.

***

I thought this recently when I was contacted and read the emailed documents on a slip and fall accident and studied attached photographs. I realized this was a virtual visual examination of the scene. The probable cause of the accident was obvious in this case. The party responsible was possibly lurking in the wings, virtually visible too.

It was also easy to identify the three field tasks that would need to be done during a complete forensic investigation of the slip and fall and the data that would be got from each. Also a fourth office task.

1. Visit and visually examine and measure the accident scene for real, and take more photographs – and also get calibrated to the scene as I blogged recently (Ref. 2)
2. Examine construction of other similar facilities in the area
3. Re-enact the accident at the scene
4. Assess the standard of care in the office for design and construction of similar facilities

So, the cause, the parties involved and the tasks necessary for a full scale forensic investigation. All this from a document review – a virtual visual examination of the accident scene without leaving the office.

It’s a way of thinking in keeping with these COVID-19 times.

References

1. COVID-19 and an initial forensic task a.k.a a visual site assessment, sans social distancing. Posted June 6, 2020
2. Can you “calibrate” a forensic expert? Posted June 23, 2020

I was surprised that a house was built in the path of the mud slide in British Columbia early this month, July 4th.  Built right in a mud channel.  Particularly in view of the fact that the Ministry of Transport reported that more slides were possible – they knew. (Ref. 1) Why were houses approved for construction in such an unstable area?  Who is liable?

Assessing the potential for a mud slide in an area and quantifying the risk for residents is not rocket science.  Someone had done sufficient assessment to warrant the report of the Ministry.

You don’t see the messy stuff mentioned as such in engineering books but it’s there.  It’s classified as very soft clay and silt with a little sand and gravel and a few cobbles.  The analytical procedures are in the books too – reliable slope stability methods of analysis understood by experienced engineers.

So, what’s the big surprise about the mess in BC and why were people allowed to build there?  We’re not talking something small here.  We’re talking about a slide that engulfed a house to a depth of several feet according to pictures on line.  And moving fast too as seen in one video of a fellow running out of the way just in time.

You don’t need a lot of data to do such an analysis either and the data is readily available in the public domain:

• The history of mud slides in the area and the rain fall at the time
• Topographic maps to give you the shape and slope of the ground, and the location of mud channels
• The results of terrain analysis identifying features relevant to mud slides, and evidence of past events (screen grabs from video taken from low flying drones has had a big impact on the engineering analysis of terrain in an area)
• Soil maps (surficial geology maps) to tell you that a mixture of clay and silt underlies the area

Engineers have done this type of assessment often, and everywhere throughout North American and around the world.  And based on the news and Transportation’s report, likely for this area as well.

So why the surprise?

Why would a person even mistakenly build a house in a mud channel?  I can’t help but think there would be local knowledge that would kick in even if the government was silent.  Would you build a house in a river channel or on a flood plain between wet seasons?

Reference

1. Notes taken from a CBC News report online.  “Debris flood, a mix of mud, gravel and cobbles 200 km east of Prince George, BC in a flood prone area 1:30 Saturday morning July 4, 2020.  Waist deep.  Second one that day nearby.  Ministry of Transport said more likely in the area”

What happens when we calibrate something, and can the procedure apply to a person?  For example, a forensic expert?  Does it happen unbeknownst to an expert?

I said in a recent blog that this happens to an expert when he visually examines the site of a failure or accident in the built environment – he gets calibrated to the site. (Ref. 1)

Then I began to think about it.

This description of a visual examination came to me when I remembered hearing years ago about an American engineer asking to have some pits dug at a site that he was visually examining in Newfoundland, so he could “…get calibrated to the site”.  The phrase resonated with me at the time.

This was George F. Sowers, a professional engineer with an international reputation in foundation and geotechnical engineering. (Ref. 2)  All of us in this field of practice knew of him.  This was a serious foundation problem if Dr. Sowers was called in.

Still, I thought, I better check the meaning of calibrate in the event Dr. Sowers stretched it a little.

The Merriam-Webster dictionary gives several definitions of calibrate, one of the last in a list of five is most applicable to Sowers use of the word:

“…to adjust precisely for a particular function, e.g., calibrate a thermometer”

Sowers was getting himself adjusted precisely to the site so he could function in a particular way – as the forensic engineer investigating the cause of the problem at this particular site.

You might say this is wandering away from a dictionary’s meaning. (Ref. 3)  I don’t think so.  One thing I’ve learned blogging on the nature and methods of forensic engineering in the past eight years is that words are taking on new shades of meaning all the time.

Using the word calibrate in a recent blog to describe what happens during a visual site assessment just came out of me from deep down inside.  It was natural.  Also knowing it was used this way by a quite reputable and experienced engineer years ago.  And it’s supported by Merriam-Webster.

The word calibrate does suggest preciseness, and that’s a big element in a visual assessment of a site – you can’t plan a forensic investigation of a failure or accident until you’ve seen the site.  Think, a picture (seeing something) is worth a 1,000 words.

Conclusion

Can you “calibrate” a forensic expert?  Yes.  It happens as a matter of course when s/he does a visual assessment of a site before commenting on how to determine the cause of the accident or failure, if more investigation seems necessary.  And a degree of expert calibration occurs when s/he does a virtual visual assessment.

References

1. COVID-19 and an initial forensic task aka a visual site assessment, sans social distancing.  Posted June 1, 2020
2. Sowers, George F., Introductory Soil Mechanics and Foundations: Geotechnical Engineering, 4th edition, MacMillan Publishing Co., Inc, New York
3. Family Word Finder, A New Thesaurus of Synonyms and Antonyms in Dictionary Form, 896 pg. Reader’s Digest in association with Stuart B. Flexner 1975

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

Why do we need terrestrial photography in forensic engineering investigation – ground level photography with hand-held cameras – when we have drone photography?  Aerial photography that can capture the same images from all directions, heights and angles plus distance and close-ups.  And software that can give you numerical values for these quantities?

And more software so you can plan a virtual flight over and around the accident or failure site before you even go there. (Ref. 1)  Then tweak the flight based on what you find after you get your boots on the ground?

Why bother with the expense and incomplete coverage of ground photography when aerial photography can do almost all of it?  (Ref. 2)

These thoughts came to mind during the most recent meeting of CATAIR in Moncton on March 13, 2020 and a talk and demonstration of drone photography by Robert Guertin of Millenium Film & Video Production, Dartmouth, NS.

The CATAIR meeting – the Canadian Association of Technical Accident Investigators and Reconstructionists – was attended by members representing the police, private sector and professional engineers who investigate accidents and failures in the built environment.

Robert described drone photography and what it could do, explained and showed how the equipment has evolved since about 2008 – when drone photography took off – and then demonstrated by flying over the parking lot outside.

My ear caught a remark by one about using drone infrared photography to spot hot spots on the ground during forest fire fighting.  I thought, that’s one more use of drone photography that I can add to my list.

I learned some time ago about farmers flying drones over their crops.  I can imagine crop flying as an excellent use of terrain analysis.  For example, an easy way to learn what areas need irrigation rather than spending money irrigating the entire crop.

I understand drones are being used out west to actually water crops.  Still another use.

The “terrain” being analysed is the top of the crop from a height of a few 10s of feet for what looks dry and what looks okay.  I’m not certain if that’s what’s happening but it could.

I’ve been using drone photography during my forensic investigations for about five years now.  On problems as diverse as:

• the effect of retaining wall construction on the flooding of a property,
• determining the presence of fuel oil contamination on new and old sites,
• assessing road safety,
• staging a potential traffic accident,
• collecting data for drafting a topographic plan of a forensic site,
• re-enactment of a traffic accident – a colleague did this recently.
• In a sense, I did it years ago during my investigation of the John Morris Rankin accident.  But in this case from the top of a 100 foot high boom supporting the camera man – the “drone” – with a hand-held camera.  I also flew the site of the re-enactment in a sea king helicopter – a large drone?
• increasing the effectiveness and reducing the cost of a conference call using a DVD of a previously drone-flown site distributed to each participant, (Ref. 3)
• the potential in the re-enactment of a nail gun accident – I got “aerial” video with my cell phone by reaching high while standing on my toes, but a drone flying 10 feet up would be better – next time, and,
• the quite unbelievable potential for determining the cause of large cracks in the wall of a recently constructed multi-story building – if only the parties had got to me.

To give terrestrial photography it’s due, considering it has served forensic engineering investigation well for decades, drone photography is restricted to light winds, dry weather and open scenes.

As long as s/he’s dressed for it including dry boots and his camera protected from the weather, the eye-level, ground photographer can plant her boots anywhere, in any kind of weather and in any tight nook and cranny and get the shot.  Including underwater.

Low level drone photography does have it’s limits like terrestrial photography but it has taken off with new uses appearing all the time on the forensic engineer’s plate.  Today, I would not investigate the site of a personal injury, like a slip and fall accident, or a component or catastrophic failure in the built environment, without getting aerial video from a drone.

References 

1. It’s here, cost effective, efficient aerial video for forensic investigations!  Posted October 18, 2019
2. A Bundle of Blogs: Aerial video of insurance and forensic sites taken with camera mounted on drones.  Posted October 31, 2019
3. Conference call on a “drone flight” reduces the cost of civil litigation.  Posted May 18, 2017

I thought this on reading the guidance for presenting a claim in the Small Claims Court of Nova Scotia.  I was researching material to do with a case at the time.  You can read the simple guidance at www.legalinfo.org

Experts could do worse than visit this site for more guidance on carrying out a forensic investigation, analysing the results, forming an opinion on cause and presenting their findings in an unbiased, objective expert report.  This is particularly the case when it comes to writing the expert’s report – which has been found wanting. (Ref. 1)

The guidance at this web site states that you need evidence to support a claim.  Evidence is anything that helps prove a fact important to your case.

Eureka! How is this any different than the evidence needed to help prove the facts supporting your opinion on the cause of a personal injury or a failure in the built environment?

Also quite important in the guide is the note that when you testify in court you’re telling your story.

Keep the forensic story, like the testimony in court, evidence-based, jargon-free and simple:

1. Tell ’em what you’re going to tell ’em
2. Tell ’em – with a beginning, a middle, and an end
3. Tell ’em what you told ’em

It’s nice how simple guidance on preparing a claim for Small Claims Court can help us carry out well substantiated forensic investigations and write evidence-based expert reports.  Realizing guidance is needed (Refs 1, 2 and 3) and that there’s detailed handbooks out there (like Ref. 4) should be enough.  The Court’s guide is more of a reminder – a gentle rain rather than a down pour.

References

1. Is there an argument for a peer review of a peer review?  Posted January 11, 2020
2. Ridding peer review of potential bias.  Posted December 30, 2019
3. What good are civil procedure rules governing experts?  Posted January 30,2020
4. Mangraviti, Jr., James J., Babitsky, Steven and Donovan, Nadine Nasser, How to Write an Expert Witness Report, 2nd ed, 2014, 560 pg, SEAK, Inc., Falmouth MA, USA

Particularly if most disputes don’t go to trial or a tribunal?  But, isn’t that the purpose of the rules, to keep disputes out of court?  Like Rule 55 in Nova Scotia?  That’s true, and they do this by setting a high standard for an expert report.  The parties, on reviewing the report, would often enough see their way clear to settle.

However, I wonder if a lower standard of report is now being accepted?  Why pay for a higher standard if the dispute is unlikely to go to trial or a tribunal?

The standard appears to be lower in the Maritimes if a survey I did of seven engineering experts in NS and NB is any indication.  I asked them, “To what extent do you see bias and poor analysis and reasoning in rebuttal expert reports?”.  The consensus was almost always. (Ref. 1)  I’m certain, the question could be asked about expert reports, in general, and the reply would be similar.

(I wonder if the bias and poor reasoning we see in some expert reports in the Maritimes appears in some of the reports of the experts surveyed in Ruth Corbin’s pilot study of 152 experts in Canada?  The study noted the expert’s view of their role in the judicial process. (Ref. 2))

The civil procedure rules are a short, simple guide on carrying out a forensic investigation and writing an expert report, but what good are they if they’re not followed?

And why aren’t they?  Cost?  Possibly.  An understandably, poorly informed non-technical client?  Likely.

I don’t think the rules are going to be taken down any time soon.  I think what’s expected of the expert must go up.  This must come to some extent from a better informed client about the benefits – including cost-benefit in the long run for both client and injured party – of a thorough investigation and a well written, objective expert report.

What’s being submitted now for expert reports and rebuttal expert reports are easily reviewed by unbiased, experienced technical experts – easily “slammed!” to use an expression by one of my survey experts.

(I’ve got a problem with that word “slammed” as reflecting an attitude at odds with a simple desire to seek the truth when peer reviewing another’s expert’s report.  But, it does indicate what can happen to a poorly written report)

What are the benefits to the expert and the client of following the rules for likely out-of-court settlements?  I think the following quote is a good answer:

“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 (if it goes that far, and pre-trial decision making more reliable) and will enhance the reputation of the expert.

On the other hand, a poorly written report will damage the expert’s reputation, can turn deposition into a nightmare, and can become a career-ending event (and an out-of-court settlement or dispute resolution into something less than fair for some of the parties)” (Ref. 3) (The parenthetic comments are mine)

***

A little aside.  What’s in Ref. 3 – How to Write an Expert Witness Report – for counsel and insurance claim’s managers if you were to buy it – which I think you should?  Maybe even give a copy to your expert?

This 2nd edition, massive, 560 page, 8″ x 11″ book is a step-by-step guide for experts written by lawyers.  It’s based on a review of 1,000s of expert reports, case histories and insurance settlements.  It will give you great insight into what you should be getting for your expert-report dollar.  It’s far more comprehensive than civil procedure rules governing experts, as good as they are.

(This is not a commercial for the book.  I use it and it’s excellent!)

References

1. Is there an argument for a peer review of a peer review?  Posted January 11, 2020
2. How experts are helping break the expert evidence logjam. Posted April 30, 2018
3. Mangraviti, Jr., James J., Babitsky, Steven and Donovan, Nadine Nasser, How to Write an Expert Witness Report, 2014, (the Preface), 560 pg, 2nd edition, SEAK, Inc., Falmouth MA

I wondered after a recent blog if there is an argument for a peer review of a rebuttal expert’s report. (Ref. 1) There’s a strong argument, if the evidence is any indication – evidence characterized, at the very least, by biased phraseology in the rebut.

In my blog I identified when peer review of an expert’s report could be done – as distinct from a rebuttal expert’s report – during the judicial and dispute resolution processes, and the involvement of the expert at each stage of a process.

I listed the stages in decreasing order of preference according to the involvement of the expert in organizing a peer review of his report.  The less involved the expert the more preferred the stage.  A peer review organized by the court or dispute resolution tribunal is the most ideal.

I included a rebuttal expert’s report in the list because it can be thought of as a review by a peer of an expert’s report.  I put it at the end of the list as least preferred even though the expert doesn’t organize it.  I did this because of the bias I see in rebuttal reports.

Based on what I’ve seen, and learned from other experts, rebuttal expert’s reports need to be peer reviewed.  A well reasoned and written rebuttal expert’s report can serve as a peer review of an expert’s report but that’s not happening.  They are not being prepared as required according to civil procedure rules governing experts, like Rule 55 in Nova Scotia.

My opinion is based on a survey of seven people in Nova Scotia and New Brunswick who provide expert services.  I asked them, “To what extent do you see bias and a lack of analysis and reasoning in rebuttal expert reports?”.

The consensus was almost always.  Sometimes it’s due to sneaky bias that creeps up, unbeknownst, on all truth-seekers.  Other times – too often – it’s due to poor analysing and reasoning followed by poor report writing.  At times it’s blatant case-making for the client.

Also, often enough, the client, not being a technical expert in the issue, is unaware of his expert’s rebuttal report’s vulnerability to peer review.

***

So, based on a survey of well experienced experts in the Maritimes, rebuttal expert reports are likely biased and poorly prepared and there is a strong argument for peer reviewing them.  And the guidance in civil procedure rules like Rule 55 in Nova Scotia make it easy to do and cost effective.  It costs money in longer trials, longer dispute resolution processes and questionable insurance settlements if a rebuttal expert’s report is found wanting – as most are now.

References

1. Ridding peer review of potential bias.  Posted December 30, 2019

Take your pick: Get your expert’s report reviewed by a peer, or rebutted by a peer.  A peer review has a scientific ring to it.  A rebuttal review has an aggressive ring.

If a peer review finds that you’re out on a limb with errors and omissions in your expert’s forensic investigation and report – it happens – you can back track and correct them.  If a rebuttal review finds this, you’re stuck out on the limb and on the defense.  They both cost money but money spent on peer review is better spent and less embarrassing.

I’ve thought this for a while resulting in the following blogs over time.  Also that it was time to bundle them together.

I think blog #5 on controlling review costs is quite a good read.  It explains the different ways you can retain an expert and how each can be peer reviewed.

If you’ve got time to look at the blogs, you might start with #7 the first one I posted in 2013.

The Bundle

1. Is there an argument for a peer review of a peer review?  Posted January 11, 2020  I make the case for a peer review of a rebuttal report because most are biased.  I learned this after surveying the opinion of seven experts in the Maritimes. 
2. Ridding peer review of potential bias.  Posted December 30, 2019  A good read on six different ways of getting rid of bias in a peer review, in decreasing order of preference. 
3. Eureka! Peer review is good case management.  Posted November 16, 2018  A pithy, short blog on a Eureka! moment I had that emphasized the value of peer review at any stage of the civil litigation or insurance claim resolution process.
4. Peer review pays off – 17 years later.  Posted May 5, 2017  A long time to wait and not your normal payback period – more like a few months.  This is a case history that explains how a client was spared the lost of many 10s of 1,000s of dollars.
5. Peer review costs can be controlled.  Posted January 22, 2016  The answer is in how you retain an expert.  You have a choice of several different ways.  There’s a quote at the end of this blog that really makes you think.
6. Peer reviewing an expert’s report ensures the justice system gets what it needs.  Posted January 15, 2016  I emphasize the need for peer review again and note that it is provided for now in the remediation of contaminated sites – environmental engineering.  I reviewed 16 references in drafting this blog.
7. Peer review in forensic engineering and civil litigation.  Posted November 26, 2013  I explain the need for peer review in forensic work as perceived by a consulting professional engineer.  It was prompted after I read four poorly written “expert” reports.

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

Terrain or site analysis using aerial video – looking at pictures taken from the air and getting information about a site – has come full circle, from simple to complex, and back to simple.  I’ll tell you how in the following, and why that’s good for forensic investigation.  Including – for certain in the future – a first-in-Atlantic-Canada aerial video.

It’s simple terrain analysis when the aerial video or photograph is taken near the ground – a few 10s of feet high.  The resolution and detail are good and anyone can look at the video and get evidence and data from it.  No special skills and software are needed.  Forensic experts like that: Reliable, precise evidence easily got and understood by everyone, including the client.

It’s complex when aerial photographs are taken from high in the sky – 1000s of feet.  The resolution and detail are not so so good and special skills are needed.  For example, skill in photogrammetry in the past as well as today, and also knowing how to use different software.

(Photogrammetry is the science of making reliable measurements between objects with the use of photographs and especially aerial photographs (as in land surveying and mapping).

(Terrain is a geographic area or piece of land.  It can also mean the physical features of a tract of land.  Also, a stretch of land, especially with regard to its physical features)

***

The simple terrain analysis today might be more correctly thought of as site analysis.  Site analysis is the type of analysis done on small, compact sites where most personal injury accidents, structural failures and problems occur rather than on large tracts of land – for example, the site of the accident, or the building or crane collapse.

***

Traditionally in terrain analysis, you look at the ground surface of quite large tracts of land as captured in aerial photographs.  You identify the physical features characterizing the surface, assess how the features relate to one another, then assess how the individual features and their relationships are relevant to your interest in the terrain.

For example, you might want to construct a road in an unmapped area.  The location and nature of features like hills, valleys, steep slopes, streams, forest, flora, existing structures and the underlying foundation soils are all relevant to what you want to do in the area.

Why not just go for a walk in the area and see for yourself?  That is done to some extent and is called ground proofing – confirming that the features you’ve identified in the aerial photographs are what they seem to be.  But for large, unmapped areas it’s not practical, maybe not safe either.

I worked for an Australian firm that selected preliminary routes for roads in Indonesian jungle by terrain analysis.  I’ve worked in jungle.  I learned after leaving one site that a man was taken by a crocodile in a mangrove swamp and eaten.

***

In the simple beginning of terrain analysis – the late 1800s – aerial cameras were taken aloft on balloons and kites and photographed the ground from quite low down.  As cameras improved this gave good detail from a different angle – above the site rather than at ground level.  In a sense, you saw your site in 3D – from the front, the side and above.  As good as it was, the area covered was limited.

Time passed and during WW 1 then more so in WW 2, cameras were taken aloft in reconnaissance planes, and understandably flew quite high and out of range of enemy guns.  Extensive areas were photographed this way and features of interest identified in the aerial photographs by the user.  Terrain analysis started to get complex.

More time passed and large areas of land were photographed this way and topographic maps made of the areas using photogrammetry.  All of Canada has been mapped from planes flying 1000s of feet in the air.

I’ve used these aerial photographs for years in my engineering work.  The planes flew at about 6,000 feet.  The detail was okay but not great, but better than not having a 3D aerial view of a site.

Various remote sensing methods were developed and increased the accuracy.  Photogrammetry continued to develop and LiDar also came along.

(Lidar (light detection and ranging) is a remote-sensing technique that uses laser light to densely measure the surface of the earth, producing highly accurate x, y, z measurements of a point on the ground.  In a sense, the location of the front, side and top of many closely spaced points on the earth – like the points defining the edge of a bog.  Lidar is emerging as a cost-effective alternative to traditional surveying techniques such as photogrammetry)

I used Lidar to investigate the cause of the foundation failure of a house and swimming pool in Cape Breton.  A Lidar map accurately showed the location of the edge of a bog and the probable location of compressible fill soil placed on a small area of the bog near the edge.  The foundations were constructed on the weak, compressible fill and bog and over time settled and subsided a lot – I remember 6.0 inches at one location.  It was an easy analysis and conclusion as to cause.

Still more time passed and in recent years simple drones fitted with video cameras came along – like motorized kites and balloons from the late 1800s -, and the cameras were much better too.  We got back to simple terrain/site analysis and the potential for taking forensic engineering investigation to another level is good.

Most recently for me, staging how an engineering failure might occur and photographing the scene from a drone fitted with a video camera.  I’m also looking forward to flying low and capturing the reenactment of a slip, trip and fall accident on video.  I’m certain it’ll be a first-in-Atlantic-Canada.

In hindsight, I wish now I had flown and got aerial video of the reenactment of a power tool accident that I investigated.  I got good video from the ground and the case was resolved, but aerial video of the reenactment would’ve been nice.  Next time.

***

I hope you’ve got an idea of site analysis and agree that simple is good.  Forensic experts certainly like it: Reliable, precise evidence, simply and easily got, easily analysed, understood by everyone, and explained jargon-free.  Not very high tech – simple low flying drones fitted with video cameras – but good and reliable.  You’ve got to agree.

It’s good like getting your hands dirty and mud on your boots tramping around on site on any occasion, including during ground proofing of the analysis of aerial video taken from low flying drones. (Ref. 1)

Also good like if you can measure it you can manage it. (Refs 2 and 3)  The measurements you can get from a screen-grab off aerial video are almost as good as those from a boots-on-the-ground land survey of a site.  The land surveyor in me knows this.

Simple is good, and it’s good to have come full circle and to be back where we started, in a sense, in the late 1800s.

References

1. An expert’s “dirty hands and muddy boots”.  Posted December 20, 2013
2. “If you can measure it you can manage it” – and do thorough forensic  engineering, and cost effective civil litigation.  Posted June 18, 2015
3. If you can measure it you can manage it, even if it’s a real mess like a car or truck accident.  Posted June 23, 2016

Reasonableness jumped out at me when I read some words of advice from a US attorney to experts regarding Criteria for Admissibility of Expert Opinion Testimony Under Daubert and Its Progeny: (Ref. 1)

“Remember the three R’s:

• Reliability, 
• Reasonableness and
• Repeatability.

Every step of the expert’s investigative process should pay attention to these three factors:

• The reliability of the investigative procedures used;
• The reasonableness of the conclusions formulated; and
• The ability to demonstrate, through repetitive analyses, that the investigative method and resulting opinions are scientifically valid and worthy of being presented to the trier of fact. — Elliot R. Feldman, Esq., Cozen O’Connor”

(Quote altered to break up a big paragraph and make more readable)

These factors allow for simple, approximate methods of investigation if decided appropriate by a reasonable person.  Thank heaven, because not everything is clean and pretty, and exact and precise in forensic engineering investigation.  Think everything to do with the messy ground, and the structures supported there, and the natural environment in general

I defended simple, approximate investigative methods in a recent blog on the standard of care that had a reasonableness theme.  (Ref. 2)

For example, the drag sled method for determining the skid resistance of a floor – the simple coefficient of friction of the floor material in high school physics.  You drag a known weight across a floor, measure the drag, divide the one by the other and you got your coefficient of friction/skid resistance.  It can’t get more simple and scientific than that.

The method meets the criteria for the admissibility of expert evidence in the U.S. and I’m sure in Canada.  It’s reliable in giving an approximate answer based on repetitive testing that would be noted in the conclusions. Approximate investigative methods are reasonable in some situations, and scientifically valid.

As an experienced civil engineer, I like reasonable considering the failures and accidents we must investigate in the sometimes messy built and natural environments.  Explaining these investigations to non-technical people and the trier of fact is often the demanding part.

References

1. As reported in Expert Communications, Dallas, Texas, August, 2019 (A consulting firm that provides marketing services to experts in the US)
2. Is there a case for a multi standard of care? No.  Posted June 27, 2019