Margaret Wente nailed it on the head in the Globe and Mail last Saturday when she hit on the deterioration of our built environment – “My world is falling apart – and so is yours.  Instead of fixing and replacing what previous generations built, we’ve been adding party rooms”.

She speaks of the engineering failures that I often speak about in my blog postings: Outright failure and collapse in the built environment, and also inadequate performance of a constructed facility and its infrastructure.

I counted about 20 examples in Margaret’s litany of failures in the built environment. Everything from leaky basements to flooded elevator shafts and transformer stations, crumbling roads and bridges, boil municipal water advisories, deteriorating pipes and sewers, and faulty subway signalling systems.  Anyone of us reading this item could add others from our personal experience and what we’ve heard.  I could also add a good number from my consulting practice.

She also aired her views on the causes of the failures: Negligence and willful blindness, inadequate facility and system maintenance, ignoring needed repairs, inadequate urban planning, etc.  She doesn’t seem to think acts of God has much to do with the deterioration, that He is not on the hook for the problems.

Some of this deterioration is certain to be resulting in forensic engineering investigations to determine cause.  Some will result in civil litigation.

If I had no data at all but had to hypothesize as to the cause of any one of a number of failures in Margaret’s cataloguing plus our additions – yours and mine, I would have lots of places in the development process on which to focus.  And some places would get more intuitive attention than others.

The process starts with:

• an owner’s concept, a good idea or recognition of the need for a structure,
• goes to planner,
• maybe an architect,
• then to a design engineer,
• a builder,
• somewhere in there, construction inspection services,
• facility operators, and,
• finally, maintenance people.

A case could be made for the premise that the farther you get from the initial good idea the less attention paid to the quality of the product.  Not wantonly, but because of money – the need to design economically, the cost of things, making money, spending it wisely, making due with less than enough, etc.

Designers must design an economical structure, builders must be helped by inspectors to provide what they said they would for the contract price, facility operators must work within an annual budget, and maintenance workers must make do with their budget.

The farther from the exciting concept and down the process to maintenance the tighter the dollar gets.  A case could also be made for the premise that maintenance gets the short end of the stick.

In forming a hypothesis as to the cause of an engineering failure, quite a lot of attention might be given to maintenance of the structure.  But its construction would be deserving of attention too, particularly if there were no inspection services during construction.

Flawed engineering design concepts also cause problems – a foundation meant to be uniformly supported receiving only intermittent support.  Then there’s flawed planning concepts – building on a flood plain which has been getting some press coverage lately.

There’s lots to choose from in forming an initial hypothesis during a forensic engineering investigation as to the cause of a problem in the built environment.  Margaret Wente touched on some of these in her piece last Saturday and there are others.

References  

1. The Globe and Mail, July 13, 2013, page F2, Globe Focus, My world is falling apart – and so is yours, Margaret Wente.

Introduction

Counsel, and insurance claim managers and adjusters benefit when they have knowledge of the forensic investigation that is carried out by a professional engineer.  The investigation determines why – the cause – a structure failed or did not perform properly, or why an accident happened.  This includes environmental accidents and fuel oil spills, and slips, trips and falls.

The process followed by experienced engineers results in a thorough investigation that leads to an objective opinion on cause.  The results can be given in a well written, jargon-free report if required, to the standards of ??? (Nova Scotia).

This blog identifies and describes the typical steps in a forensic engineering investigation. 

Investigations can be complex and time consuming involving all the steps in the process.  Or simple and quick, particularly when some steps are not needed because of the nature of the failure or accident, or there’s interest in focusing on one key element in the problem. 

The engineer’s experience can also simplify an investigation sometimes.  For example, I saw the reason ice was falling from a roof from across the street with binoculars.  And another time, the reason for a trip and fall accident in a couple of photographs sent me. 

The process is followed regardless of whether the professional engineer is retained by the plaintiff or the defendant, a claims manager or the property owner.  and whether retained as a consulting expert or a testifying expert.

The process is also followed in spite of the fact that the great majority of disputes that arise from an engineering failure or an accident are settled out of court.

The word “forensic” from the Latin forum indicates that the investigative findings assist the justice system resolve a dispute – that’s certainly the case if the thoroughness of a forensic investigation keeps a dispute out of court.

A structure is anything in the built environment, including alterations of the natural environment like highway embankments and earth and rock slopes.  A failure can involve total collapse of a structure or its inadequate performance.

There are three fundamental components to the forensic engineering investigative process:

1. Acquisition of data
2. Analysis of data
3. Presentation of conclusions and opinions

At some point we are interested in establishing a before/after scenario:

1. What were the conditions existing before the failure or accident?
2. What took place during the incident?
3. What are the conditions existing afterwards – the property damage, the injuries?
4. What caused the incident?

Rigid formulae for investigating failures and accidents do not exist.  But all forensic engineering investigations contain the following steps to a greater or lesser degree.

1. Document Review
2. Visual Assessment
3. Field Investigations
4. Laboratory Investigations
5. Research
6. Follow-up Investigations
7. Data Analysis and Formulation of Opinion
8. Repair and Remediation
9. Report

Visual assessment can be broken down further:

1. Visit and visually assess the site
2. Photograph and videotape site
3. Interview witnesses

Field investigations can also be broken down further:

1. Describe the failure or accident
2. Survey and document the damage to the structure
3. Determine how the structure was built
4. Determine the site conditions

Research can be broken down too:

1. Desk studies and leg work
2. Identify building codes and industry guidelines
3. Identify standard of care

Most of the investigation involves gathering data and most of the report – more than 3/4 – involves analysing and presenting the data.  This points to the importance of the data gathering.  The degree of certainty in the final opinion of the cause of the failure or accident is often a function of the amount of data gathered.

In fact, guidelines on failure investigation and forensic engineering issued by national engineering associations encourage professional engineers to take only those cases where they can carry out a thorough investigation and gather enough data to be able to give a reliable opinion.

Following is a brief description of each step in the investigative process:

1. Document Review

Review documents

Reviewing documents provided by counsel during the initial briefing is an important first step in a forensic engineering investigation.  These documents sometimes provide the only data available to an engineer investigating a failure or accident.  Documents include material like the following:

1. Client narrative
2. Discovery transcripts
3. Text material
4. Drawings and site plans
5. Construction and site photographs
6. Damage photographs
7. Geotechnical reports
8. Environmental assessment reports
9. Maintenance records
10. Weather reports – usually rainfall

Additional published documents almost always researched by a professional engineer include:

1. Legal surveys and descriptions
2. Land development and drainage plans
3. Aerial photography of the area of the site
4. Topographic and contour maps
5. Surficial and bedrock geology maps
6. Agricultural soil maps
7. Hydrological maps and studies
8. Hydrogeological maps and studies
9. Flood plain mapping
10. Mining activity mapping

Documents like these are often studied a number of times during the different stages of an investigation.

Form hypothesis and plan investigation

Information from the documents along with an initial site visit and visual assessment enables the professional engineer to plan the investigation based on what he thinks caused the failure or accident – his initial hypothesis.  Investigations are designed to confirm, revise, or refute the initial hypothesis.

The assumptions made, and their validity, underlying the professional engineer’s initial thoughts on the incident are identified and documented. 

Implicit in the most thorough investigations is an effort to also prove something did not occur in some other manner.

Well planned investigations are sometimes set out as follows:

1. Task. Identify and describe each task.
2. Purpose.  State the purpose of each task – what is hoped to be learned.
3. Data.  (Later, describe what is actually learned, the data gathered).

This simple format enables the investigation to be described in detail later.  It also facilitates development of a timeline of the forensic investigation.

The format is much the same as a “work breakdown structure” in the field of project management.  The “work” in this case is the forensic engineering investigation that has been “broken down” into different tasks.

Determine before/after scenario

In checking the hypothesis, engineering investigations determine the before/after scenario (see Introduction):

1. The nature of the area the structure is in and the ground beneath the structure
2. How the structure was built initially, and its conformance to the design and construction plans
3. What took place during the failure or the accident, and,
4. The nature and extent of the damage, inadequate performance, or injuries

2. Visual Assessment

Visit and visually assess site

This step involves visiting the site as soon as possible after the failure or accident.  The professional engineer walks and pokes around the site – kicks the tires in a sense, to get a feel for where things are and the nature and extent of the damage, and examines exposed surfaces.  It’s a very simple task – not very technical at all, but invaluable in getting a feel for the scene and bringing the documents to life.

It helps to dictate to a smartphone or Dictaphone what is being seen and done during the visual assessment.

Sketching and measuring what seems to be relevant is started at this early stage.  Measuring, testing, and quantifying in a number of different ways often characterizes an investigation carried out by a professional engineer.

Photograph and videotape site

Photographing and videotaping the failure/accident site and the failed structure is an important initial step, and the sooner the better before remedial work alters conditions.

Equally important is a caption or descriptive note for each photograph stating:

• What was photographed/videotaped
• The position of the camera and direction pointed
• Why the subject/object was photographed
• What to look for in studying the photograph/videotape, and,
• The date and time.

Interview witnesses

Interviewing witnesses to the failure or accident or the conditions existing beforehand is also an important initial step.  It should be done as soon as possible after the incident while memories are fresh and site conditions unchanged.  Record names and addresses in the event the witness must be called to testify at a hearing later.

3. Field Investigations

Describe the failure or accident

This step records a description of what happened during the failure or accident based on the comments of the witnesses interviewed and information from the documents.  Talking with people who were there and saw or experienced the failure if it was a sudden collapse of a structure, or an accident, is particularly valuable to the description.

Survey and document the damage to the structure

This step involves recording the damaged condition of the structure that has collapsed or does not perform properly.  The condition is recorded by means of tasks such as the following:

1. A visual examination and description of the structure’s condition,
2. Measuring the extent and location of the damage, and,
3. Photographing and videotaping the damage.

This should be done as soon as possible after the failure before data and evidence are altered or lost.  The information enables a before/after comparison to be made after the next step is completed.  This type of comparison is often quite helpful as noted.

Determine how the structure was built

How the structure was built, whether or not it conformed to the design, and the adequacy of the design, is determined at this stage.  Also, whether or not the design and construction conformed to the standards of the day.  This information is obtained from the design and construction plans.  Also from research of building codes and industry guidelines existing at the time and checking these against the structure on site.  Tasks involved in this step include the following:

1. Obtaining copies of the design and construction drawings – often quite similar
2. Checking that the design conforms to the building code and good engineering practice
3. Checking that the construction drawings conform to the design
4. Obtaining a copy of the as-built drawings – drawings that record changes made during construction for various reasons
5. Checking that the existing structure conforms to the as-built drawings.  This involves examining and measuring the different components of the structure.  It often involves taking things apart or using remote sensing techniques to detect what is below the surface.  To facilitate this examination, drawings of the damage might be superimposed on the as-built drawings.  This superimposing would eventually be done during the data analysis (see below)
6. In the absence of drawings – often the case for older structures, measure the structure and prepare drawings, and then superimpose sketches of the damage

How many of these tasks are carried out and in what detail depends on the situation, the structure, and the failure.  Sometimes very little of the above is done.  Sometimes it’s enough just to measure and prepare sketches of the damage and view and study the structure with these sketches in hand.

Determine the site conditions

The site is the area the structure is in and the terrain beyond the site including other structures.

The site conditions of interest at this stage of the forensic engineering investigative process include:

1. The lay of the land; the topography
2. Surface features like bedrock exposures, sinkholes, and wet land
3. Drainage features like ponds, lakes, and water courses (hydrology)
4. Subsurface and foundation soil and rock conditions (geotechnology)
5. Groundwater conditions (hydrogeology)

Investigating and determining site conditions includes:

1. Photographing and videotaping the site
2. Aerial photography and map making
3. Topographic and elevation/contour surveys
4. Drainage and groundwater studies
5. Geotechnical and foundation soil and rock investigations
6. Environmental assessments
7. Field tests like skid resistance tests, plate load tests and pile load tests
8. Accident reconstruction

Detailed topographic and elevation surveys are usually made when the failure of a building or a civil engineering structure, or the cause of an accident, is thought to involve the terrain in which the site is located.

Drainage studies (hydrology, hydrogeology) are made when surface or groundwater may have been a factor in a failure or an accident.

Geotechnical and foundation investigations may be necessary if the cause of the failure of a structure appears to be in the foundations or the subsurface soils.

Full scale field tests and accident reconstruction may be carried out.  This is done when these methods are assessed as the most reliable means of gathering data on the effects of the terrain, and features in it, on the failure or the accident.

4. Laboratory Investigations

At this stage in the investigative process, it is often necessary to carry out laboratory tests.  These would determine the chemical, physical, mechanical, strength, and/or drainage properties of materials used in construction at the site of a failure or an accident.  It might be necessary to analyse the toxic fumes emitted by a compound or product used in construction.

Typical materials used in construction are soil, rock, steel, concrete, wood, plastic, adhesives, asphalt, and masonry products.

Composite materials like asphalt or reinforced concrete can be taken apart in a laboratory to determine how the material was formed.  For example, the location, type, and size of reinforcing steel in a reinforced concrete slab that failed.

5. Research

Desk studies and leg work

To some extent, research studies during a forensic engineering investigation – desk studies in some engineering disciplines, are on-going like document review.

The work often involves literature searches, telephone and internet work, and leg work to sources outside the office like libraries and the offices of persons to interview and consult with.

It also involves research and study of aspects of the engineering investigation that have assumed some relevance.  For example, past mining activity in an area, the standard of care at the time the structure was designed and constructed, the shrinkage properties of a fill material, and the different modes of failure of a soil-steel bridge.

Research also identifies and gathers together all information in appropriate categories relevant to the investigation of the failure (see Document Review above).  This would be information usually not contained in the documents provided by counsel during the initial briefing.  Information like original construction and as-built drawings, geotechnical and environmental reports, and published mapping of the area.  Availability of the material would be determined and copies obtained if possible.

Also during this step in the forensic engineering investigative process the need would be identified for additional engineering and scientific specialists to investigate some aspect of the failure, and study relevant findings.  Specialists would be identified, contacted, and conferred with about their possible contribution, and retained if necessary.

***

Of particular importance during the research stage would be the identification of building codes and industry guidelines.  Also the standard of care followed at some period relevant to the design and construction of the failed structure, or the structure(s) involved in the accident.

Identify building codes and industry guidelines

Identify applicable government and industry codes, standards, regulations, and guidelines.  Include national and international codes, etc, that are relevant to the failure or accident and relied on locally.  Search and identify technical papers and state-of-the-art reports that are relevant to the problem.  Obtain copies and review this material.

Identify standard of care

This could be an important task during a forensic engineering investigation if the findings might be presented during a more formal dispute resolution process or at trial.

The standard of care is the standard commonly applied by professionals or other workers practicing the same discipline or trade in the same area at the time the structure(s) was designed and constructed that was involved in the failure or accident.

Identifying the standard can be quite simple or very involved and time consuming.  It involves interviewing other professional engineers and/or workers practicing in the area at the time the structure was designed and constructed to determine the procedures they followed and the standards they employed.  If there is wide variance you would speak with more people until you feel satisfied you know what the average is.

If there were two small firms practicing in the area at the time, as was the case for a soil-steel bridge failure that I investigated, then it’s easy.

On the other hand, as in another case, if there are 11 different types of firms and associations playing a part in the design and construction process associated with an accident – providing different products and services to the construction process, then it’s difficult and time consuming.  You would need to identify and speak with a number of representatives of each type of firm and association – potentially dozens of people, to be satisfied you understand the process as followed at the time and the average standard of care with which this was done.

6. Follow-up Investigations

This task of carrying out one or more follow-up investigations results from the need to “follow the evidence”.  This concept hardly needs explaining to counsel.  It is equally important in a forensic investigation.  Data will be gathered and evidence uncovered during a previous investigation that suggests another line of enquiry should be followed up or another area investigated.  I think this would be like cross-examination during discovery uncovering evidence that suggests a new line of questioning.

Implicit in the fact that there might be evidence that should be followed up is the possibility that the initial hypothesis on the cause of the failure or accident might need to be revised or rejected completely.

The possibility of the need for follow-up investigations is a fact of life during forensic engineering investigations.

7. Data Analysis and Formulation of Opinion

This is one of two or three final, important steps in the forensic engineering investigative process.  Lots of data is good but you’ve got to do something with the data – draw meaning from it, to serve the justice system.

Data from one stage looked at critically

In analysing and reasoning to a conclusion, the data from any one stage of the investigation is looked at critically – taken apart, in a sense, and each part looked at carefully, and how they are related and their interaction examined.

Identify typical modes of failure?

The data is also looked at closely to see if it is characteristic of or associated with a mode of failure or a cause based on past experience and/or mathematical calculation.  Professional engineers have identified and published typical modes of failure for the various structures in the built environment.  These are available for review and guidance to the forensic engineer during a forensic investigation.

Data from other stages looked at critically and for corroboration

The data from other stages of the forensic investigation are similarly looked at, and also studied to see if there is corroboration of conclusions between stages.  Pattern is looked for within individual data and amongst different sets of data.  And if there is a pattern, considering if it is typical of a known cause/mode of failure.

Draw conclusions and confirm, revise, or refute hypothesis

At some point, conclusions are drawn from the analysis and the hypothesis confirmed, revised, or refuted.  If revised or refuted then a new hypothesis is formed and this investigated with follow-up forensic investigations.

If the initial hypothesis is confirmed then the cause of a failure or accident has been identified and an opinion can be stated.

Document reasoning

At all points in the analysis the reasoning followed is documented and the basis of the conclusions is recorded.

Easy analysis

Sometimes the data analysis and development of an opinion is quite easy.  For example, when field work uncovers a concrete floor slab that is supported by irregularly spaced columns, and the particular type of slab that’s in place beneath the structure is actually required to be uniformly supported.  Then it’s easy to hold the opinion that the floor slab is inadequately supported.

Complex analysis

At other times it’s complex.  For example, when there are more than 20 possible modes of failure for the collapse of a soil-steel bridge.  When the collapsed bridge is not available to examine, then the available data must be analysed for each mode and the cause identified by a process of elimination.

Mysterious analysis

Sometimes it’s mysterious.  Why is there a toxic odour in the concrete enclosed lower level of a structure and the lighter-than-air fumes are not detected in the timber framed upper levels?  A chance remark about timber structures “breathing” – are more pervious, in a sense, in engineering terms, solves the mystery as to cause.  The fumes in the upper levels diffuse through the exterior timber walls to the outside of the structure, and also through open doors and windows.

8. Repair and remediation

Often times near the completion of a forensic engineering investigation there is a need to plan and design repair of the damaged or failed structure, and then estimate the cost of the repair.  This repair cost contributes to an evaluation of the damages claimed in a lawsuit.  Occasionally the repair is constructed involving engineering supervision and inspection costs, which also contribute to the damages.

9. Report

Types of reports

The report, in particular, the written report, is an important step in a professional engineer’s investigation of a failure or an accident.  It is an objective documentation for the judicial system of the methods used during the investigation, the data gathered, the analysis of the data, and the reasoning to an opinion on cause.  It’s importance is highlighted by the fact that civil litigation rule changes in some provinces are limiting discovery of the expert.

The results of a professional engineer’s investigation of a failure or an accident are presented in:

1. Oral reports,
2. A written report, and,
3. Occasionally, one or more supplementary reports

Oral report

If possible, an oral report is given to counsel as soon after the documents are read, an initial site visit and visual assessment completed, and an initial hypothesis formed as to cause.  The report will indicate the direction the investigation appears to be leading.  This will give counsel an early indication as to whether the professional engineer will serve as a consulting expert or as a testifying expert.

Written report

A written report is provided at completion of the investigation.  It is prepared on instruction of counsel for the court and judge and submitted to counsel.

Serious thought must be given to having a written report prepared. This is because non-technical counsel and judges are wordsmiths and benefit from well documented data and argument – and usually like well written reports as I have found on more than one occasion.  Else why are civil procedure rules being struck to encourage the preparation of reports and limit expert discovery?  To save time and expense I’m sure but I also suspect because the judicial system likes a well written report.

I know of two cases where junior counsel decided against well prepared reports.  In the one case because of the perceived expense by counsel – and yet it was the first thing the judge asked for, and counsel’s case struggled thereafter, cost more, and may have resulted in significantly lower damages being awarded.

In the second case, counsel submitted a report containing the results of interviews.  The interviews resulted in a poorly prepared report because there was no evidence to validate the interviews which I understand constitutes hearsay in law.  Counsel neglected to call witnesses supporting the hearsay evidence and lost his case.  Both cases seemed to be open and shut cases for the counsels involved.

Supplementary reports

The need for supplementary reports might depend on whether or not new evidence is found during discovery, in follow-up investigations, or presented in rebuttal reports.

Reports, in general, might identify appropriate graphics, models, demonstrations, etc. to explain the investigation and findings to lay technical people.

Report outline

The outline of a report will vary depending on the nature of the failure or accident and the extent of the investigation.  Many will be in chronological order, generally the order of the steps in the forensic engineering investigative process.  The process is a series of investigations and follow-up investigations that in turn are comprised of different tasks.  My reports generally:

1. Describe the individual investigations and tasks,
2. State the purpose or reason for carrying out each task,
3. Identify the data obtained from each investigation,
4. Document the analysis and reasoning and comment on the validity of the initial hypothesis,
5. If applicable, report on and document the analysis and reasoning arising from follow-up investigations confirming a final hypothesis, and,
6. Draw conclusions and formulate an opinion

***

(This update of an item posted in 2012 identifies investigative tasks like assessing the standard of care existing at the time a structure was designed and constructed or an accident happened.

The update was actually prompted by a long and very difficult assessment of the standard of care in a case, and the realization that assessing standard of care was an important – and sometimes difficult, step in the forensic engineering investigative process.

The update also provides sources in the following References for follow-up and gives data in an Appendix on the difficulty of estimating the cost of forensic engineering investigation)

References

The foregoing is based on several sources in addition to my own experience.  The citations are not complete:

1. ASCE, Guidelines for failure investigation, 1989
2. ASCE, Guidelines for forensic engineering practice, ed., Gary L. Lewis, 2003
3. ASCE, Guide to investigation of structural failure, Jack R. Janney, 1986
4. Personal communication, Jack Osmond, NSPL, Affinity Contracting, Halifax
5. Meyer, Carl, ed., Expert Witnessing; Explaining and Understanding Science, 1999
6. Steps in the civil litigation process, posted August 28, 2012
7. The cost of forensic engineering investigation, posted November 1, 2012
8. ASFE, Association of Soil and Foundation Engineers, Expert: A guide to forensic engineering and service as an expert witness, 1985
9. Ratay, Robert T., ed., Forensic Structural Engineering Handbook, McGraw Hill, 2000
10. Day, Robert W., Forensic Geotechnical and Foundation Engineering, McGraw Hill, 1999

Appendix

(The following is adapted from a posting to this blog site www.ericjorden.com/blog on November 1, 2012 entitled, “The cost of forensic engineering investigation”)

Difficulty estimating the cost of forensic engineering investigation in Atlantic Canada (the items in bold are the main steps in a forensic engineering investigation).

The following is a subjective assessment of the difficulty estimating the costs of the steps in the forensic engineering investigative process (see foregoing item).  The more difficult the step the less accurate the estimate.

The cost assessment at the start of an investigation assumes the request is made of a professional engineer after he has been contacted, the failure briefly described, and the documents identified that counsel will provide.

The assessment is based on my experience in the forensic engineering investigation of failures in the built and natural environments, and fatalities and personal injury accidents, in Atlantic Canada and overseas:

Difficulty estimating costs

1. Document review ………………………..………………..…………………… Easy
2. Visual assessment
3. Visit and visually assess site ……………………………………………. Fairly easy
4. Photograph and videotape site …………………………………………. Fairly easy
5. Interview witnesses ………………………………………………………..… Difficult
6. Field investigations
7. Describe the failure or accident…………………………………………. Fairly easy
8. Survey and document damage to the structure …………………… Fairly difficult
9. Determine how the structure was built ………………………..…. Easy to difficult
10. Determine the site conditions ……….…………………………..……. Very difficult
11. Laboratory investigations …………………………………………… Very difficult
12. Research
13. Desk studies and leg work ………………………………………………….. Difficult
14. Identify codes ………………………….………………………………. Fairly difficult
15. Identify standard of care ……………….………….. . Fairly difficult to very difficult
16. Follow-up investigations ………………………………………………. Impossible
17. Data analysis and formulation of opinion ………………..………. Very difficult
18. Repair and remediation ……………………………………..……………… Difficult
19. Report ………………………………………………………………………… Difficult

Add to this difficulty of estimating the costs of a forensic engineering investigation, the difficulty of estimating the costs of the role of the expert in the different stages of the civil litigation process.  This compounds the problem further for counsel and the expert.

For example, how, at the start of an action, do you estimate the cost of answering the questions posed under Rule 55 (in Nova Scotia) not knowing how many there will be nor their complexity?

I was asked in a case not too long ago to answer 46 numbered questions submitted by opposing counsel.  On counting, and including important sub-questions, there were actually 77 questions.  The cost of answering these questions was approximately 13% of the total cost of my involvement as an expert in this litigation.

(Posted by Eric E. Jorden, M.Sc., P.Eng. Consulting Professional Engineer, Forensic Engineer, Geotechnology Ltd., Halifax, Nova Scotia, Canada. July 15, 2013 ejorden@eastlink.ca)   

Including in forensic engineering in big and helpful ways – but, we must know and keep in mind what the computer is doing.

One of the mistakes experts make is not understanding the computer programs they use to analyse data and what the programs are based on (Ref. 1).  This would include the accuracy of the mathematical models relevant to the problem they’re investigating.

We’ve heard about the discrepancies in the predictions of different climate-change models.  I also noted in a recent posting (Ref. 2) that big-data is giving us correlations not causes – and it’s the latter that’s of paramount importance in forensic engineering.

Big-data refers to the ability of society to harness huge amounts of data in novel ways with today’s computers, and analyse the data to produce useful insights on people, or goods and services of significant value. (Ref. 3)  This is the “big-data” revolution.

But Big-Data is really all about Big-Computer power.

I was reminded of this on reading an item in the Globe and Mail recently on how our lives are being “datafied” in both good and not-so-good ways (Ref. 4).  (The item is a good read if you’re interested in staying up to date on what’s happening with big-data)  I also reflected on this after doing a preliminary literature search for a case on-line last week in a few hours that would have taken a few days a decade or more ago.

The computer is the common denominator in what was reported in the Globe and Mail and my literature search.  The computer is generating a lot of the data that is subsequently being gathered together and analysed – also by the computer.

For me, I was able to quickly get a handle on existing and past standards, codes of practice, and guidelines in North America and Europe via Google.  I was also able to review the science relevant to my problem at Wikipedia.  Both using computer power.

But, at the end of the day, I’ve got to check the sources and citations supporting this information lest I make the mistake experts sometimes do of not knowing the accuracy of their sources.  I’ve started on this and did a little by e-mailing and in due course conferring on the telephone with a consultant in Texas.

It was “big-computer” power that took me across the continent and overseas not “big-data”.  The data was there – in a computer database; the computer went to it, and scooped it up for me.

References

1. Babitsky, Steven and Mangraviti, Jr., James J., The Biggest Mistakes Expert Witnesses Make and How to Avoid Them, SEAK, Inc, 2008
2. Experts on the wane? Blog posted on this site on April 18, 2013
3. Mayer-Schonberger, Victor and Cukier, Kenneth, Big Data: A Revolution That Will Transform How We Live, Work and Think, Houghton Mifflin Harcourt, New York, 2013
4. The Globe and Mail, Thursday, May 9, 2013, page A21

You might be interested in Chris MacDonald’s business ethics blog at www.businessethicsblog.com  Particularly if you are in one of the professions and practice in a business-like manner.

Chris is an educator, speaker, and consultant in business ethics.  He teaches in a school of management at a university in Toronto and is associated with another in the U.S.  He is co-editor of the Business Ethics Journal Review. http://businessethicsjournalreview.com/

Chris is a philosopher by training, a practical philosopher by inclination – this chap’s not stuffy by a long shot.  He’s seldom still.  An east coast guy that has done good and is influencing the business world in a big way.  And doing this in an area – business ethics, that is in desperate need of a good influence.

Philosophy means “love of wisdom”, from the ancient words philos (love) and Sophia (wisdom) (Ref. 1).  Think most of us in the professions are in that good place.

I met Chris when he taught a critical thinking course a few years ago at Saint Mary’s University in Halifax.  One of the best courses I’ve taken in my life by a good teacher, and a course that all professional engineers practicing forensic engineering should take.

Chris has twice been declared one of the “Top 100 thought leaders in trustworthy business behaviour”.  He has several times been named one of the “100 most influential people in business ethics”.

He has been blogging since November, 2005.  His blog is current, well designed, easy to navigate, and very readable – not cluttered and busy like so many.

He tells you about his blog much better than I could at his web address above.  I think a good, spirited summary of who he is and what he’s trying to do with links is at his page, ‘About’.  He warns you on this page that you will probably be irritated by his blog – but, I found, your thinking challenged in the process.

One of his recent postings lists five must-reads on business ethics at http://www.canadianbusiness.com/blogs-and-comment/5-business-ethics-must-reads/

I’ve been reading some of Chris’ material on ethics for several years now.  It’s well I should, considering that one-third of the content of a 140 page set of guidelines for forensic engineering practice – 46 pages, is on ‘ethics in forensic engineering’ (Ref. 2).  Another approximately one-third is on legal matters and business considerations.

One-fifth of another 200 page set of guidelines for forensic engineers is on legal matters and guidance for experts preparing for the civil litigation process (Ref. 3).  There is some emphasis on ethics in these guidelines too.

Also, I should read the business ethics blog if there’s anything to my comments on professional ethics and the tyranny of the bottom line, updated, a blog I posted October 11, 2012 (Ref. 4).

Those are enough reasons for a professional engineer to take an interest in Chris’ blog, as I have, but allow me one more reason.

Rule 55 in the Nova Scotia’s civil procedures rules is quite direct in informing experts that they are reporting to the court, and that they are to be objective – that’s all there is to it, with no qualifiers on objectivity.  And experts are to state the reliability of their opinions.  These charges to experts from the justice system are explicit and contain a clear ethical requirement.

It’s possible some of you might be interested in Chris’ blog.  I think he’s got something to say to all of us.

References

1. Mannion, James, Essentials of Philosophy, The Basic Concepts of the World’s Greatest Thinkers, Fall River Press, New York, 2002

2. Lewis, Gary L., Ed., ASCE (American Society of Civil Engineers), Guidelines for Forensic Engineering Practice, 2003

3. ASCE, Guidelines for Failure Investigation, 1989

4. Professional ethics and the tyranny of the bottom line. Updated.  Blog posted, October 11, 2012

(The following is one in a series of cases I have investigated that illustrate the different forensic engineering methods I use to investigate the cause of failures and accidents that result in civil litigation. 

The update is a very detailed, informative, easy to read – I think, description of the methods used to investigate the fatal motor vehicle accident (MVA).  The description reads a little like a story which I think makes for an interesting blog on a forensic engineering investigation – we engineers are not well known as rapt story tellers.

A briefer version of this case was published earlier with a list of the methods I used.  It’s a good case for illustrating how an engineering investigation sometimes unfolds, going, in a sense, from not knowing at the start about what to do to solve the problem to getting on with it, figuring it out, and solving it.

Original blog updated

The investigation of the fatal MVA is reported under the following main headings with several sub-headings:

• The case (a description of the fatal MVA, the legal/technical issues, and my client)
• Forensic engineering investigation of the failure and the methods used
• Preliminary findings of the investigation
• Post mortem (resolution and lessons learned)

The case

Description of fatal motor vehicle accident (MVA)

The accident occurred a few years ago on a remote, snow-covered highway along the top of a seaside cliff in eastern Canada.  A jeep-like vehicle travelling along the highway at dawn struck a pile of soil-like material left in the travel lane.  The driver lost control of the vehicle and drove over the cliff and into the sea.  The driver died in the accident.  Passengers in the vehicle survived.

Legal/Technical issues

At issue, for purposes of the forensic engineering investigation, was the following:

1. Whether or not the pile of material on the highway was a hazard
2. If it was, determine the degree or severity of the hazard
3. Also, whether or not the pile of material caused the accident

Client

I was retained by the RCMP to investigate the accident and resolve the technical issues.

Forensic engineering investigation

Unique investigation

The investigation was unique in that there were no guidelines or well developed methods in the engineering literature on how to investigate this type of accident and address the technical issues.

Fortunately, in researching the literature, I did find some very relevant scientific research on speed bump design that I was able to adapt to my problem with excellent results.

My forensic engineering investigation relied on the following methods.  The methods are described below in detail.  I believe the following listing of methods is quite informative by itself:

1. Take briefing on the accident from the RCMP
2. Review documents on the accident provided by the RCMP including police reports and survivor’s statements
3. Travel to the area and visually examine the scene of the accident
4. Generate a picture of the accident scene using Photoshop as it might have been seen by the driver moments before the accident
5. Research engineering literature for methods on the investigation of obstructions on a highway
6. Research scientific literature on speed bump research and design
7. Research transportation authorities in North America and Europe
8. Design a full scale preliminary re-enactment of the accident on bare roads
9. Plan a full scale re-enactment of the accident on a snow-covered test site implementing refinements to the re-enactment including safety measures derived from the preliminary testing
10. Design a videotaping and measuring of the re-enactment
11. Construct a full scale test site on an airport taxiway
12. Re-enact and videotape the accident on the test site
13. Analyse the videotape for evidence respecting the technical issues
14. Edit the videotape to portray the re-enactment in a report
15. Report on the preliminary findings including safety issues

Description of forensic engineering investigative methods for a fatal MVA

1. Take briefing on the accident from the RCMP

The RCMP’s briefing described the accident scene, the accident, and their staff’s assessment of the speed the jeep was travelling at the time it struck the pile of material on the highway.  The briefing was supported by photographs of the scene, the pile of material on the road, and the truck that deposited the material on the highway.  Survivor’s statements on the accident taken by the police were included in the supporting documents.     .

The RCMP wanted a forensic engineering investigation to determine what part, if any, the pile of material had in the fatal accident.  Very specifically, investigate the technical issues as noted above.

2. Review documents on the accident provided by the RCMP including police reports and survivor’s statements

Reviewing existing documents and examining photographs is a standard first step in the forensic engineeing investigative process.

The police reports were quite valuable in describing:

• How the truck deposited the material on the highway,
• The dimensions of the pile – the width of a traffic lane long, several feet wide and several inches high,
• The range of speeds the vehicle was possibly travelling, and the most likely speed
• The time of the accident
• The snow-covered road conditions at the time, and
• The lighting conditions (dawn).

I read the survivor’s statements but these did not yield any data relevant to the technical issues.

While reading the documents and afterwards I sort of brain-stormed the situation and jotted down all and sundry that came to mind.  It wasn’t long that I realized this was quite simply an obstacle on the highway.  I figured there would be lots of information in the engineering and scientific literature on how to investigate different obstacles on and near highways and their effect on vehicle travel.  I soon found out that I was wrong.

3. Travel to the area and visually examine the scene of the accident

This is also one of the standard, invaluable, initial steps in the engineering investigative process (see Ref. 1).

I drove to the scene of the accident and simply walked and looked at the part of the route travelled by the jeep.  I was struck by the straight alignment of the highway and the uninterrupted line of sight for several hundred metres in the approach to the scene of the accident.

Why wasn’t the pile of material seen by the jeep’s driver well enough in advance to stop, even on snow-covered roads?

4. Generate a picture of the accident scene using Photoshop as it might have been seen by the driver moments before the accident

I took photographs of the highway while on site.  There was snow on the ground in the area during my visit but not on the highway.

I had a photographer take one of the photographs and using Photoshop “colour in” the bare highway with “snow” to give it that snow-covered look existing at the time of the accident.  The photographer also added a feature to represent the pile of material on the highway.  The material was light in colour like snow or very light quartz sand.

The technique is called “cloning” in photography when a small element of colour is taken from one part of a photograph and added to another.  In this case many small elements of the white snow in my photograph were taken and placed on the bare highway to give it that snow-covered look.  Additional elements were taken to build a feature that looked like the pile of material struck by the vehicle.

The touched-up photograph was very realistic in portraying the snow-covered road with the almost invisible pile of light coloured material in the driver’s lane.  Invisible until just moments before the pile was struck by the jeep.

The pile of material was seen by the driver in those last moments as suggested by the angled tire tracks on the pile.  The tracks indicated the driver braked and skidded sideways on the snow-covered road just before the pile was driven over.

5. Research engineering literature for methods on the investigation of obstructions on a highway

I had a technical library research the literature in North America and overseas for methods of investigating obstructions on highways and the effects of these on drivers.  Nothing specific was found but we did come across a reference to research on speed bump design.

I had that Eureka..!! moment when I realized that a pile of material several inches high on a highway was a “speed bump”.

6. Research scientific literature on speed bump research and design

I went back to the technical library and searched the literature on speed bump research and design in Canada, the U.S., England, and Australia.  I struck gold.  I found original research papers on work carried out in California.  One paper was quite detailed in describing the precise layout of a test site.  An objective of the research was the evaluation of the effects of different configurations and heights of speed bump on the control of vehicles travelling at different speeds.

This was precisely my situation: The effect of a speed-bump-like pile of material on the control of a vehicle on a highway.  I had my forensic engineering investigative method.

7. Research transportation authorities in North America and Europe

I was asked to evaluate the severity of the pile of material as a hazard – if it was found to be such.

I went back to researching the scientific literature, particularly the various transportation authorities and agencies for information on assessing the severity of hazards on our highways.  Groups like these set the standards for our highways.  I found reference to “severity indexes”.

I did not pursue this research because, as you are certain to appreciate, I was starting other tasks in the engineering investigation, particularly planning, design and construction of a “speed bump” test site.

As you will see in the following, I did not need a severity index classification system to tell the RCMP that the pile of material involved in the accident was a hazard and a severe one.

8. Design a full scale preliminary re-enactment of the accident on bare roads

I decided to carry out a full scale re-enactment of the accident, initially on bare roads in the interests of safety.  I wanted to learn how the vehicle would behave on bare roads and use the data to refine the design before planning to carry out similar tests on more dangerous snow-covered roads.

A full scale field test that simulates conditions during an accident – a re-enactment, is simple, practical, visual, and the results are easy to understand/see by non-technical people.

My design consisted of a simple modification of the speed bump research sites that I found in the literature.  The modification included the dimensions of the pile of material and the highway lane width at the accident site.  It was a fairly simple design to think through and portray in a drawing to guide construction.

The design consisted of the lane of a “highway” with the pile of material and its dimensions shown on the drawing part way along the lane.

The area of the lane beyond the down-highway end of the pile of material was marked off in one foot graduations across the lane.  Like a large ruler on the lane.

Similar graduations were marked off on a large sheet of plywood but at six inch intervals.  This was to form a vertical ruler set off to the side of the lane opposite the pile of material.

The test lane was about 400 feet long with the pile of material near the middle.  The lane was made the same width as at the accident site.  The pile was cone-shaped in section along the lane.  It extended across the lane and about 10 feet along the lane.  The pile was about 15 inches high.

The re-enactment would involve driving the jeep-like vehicle down the lane at different speeds and over the pile of material.  It was expected the jeep would be airborne after hitting the pile of material, as found during the speed bump research.  The rulers would measure how high and how far the jeep travelled airborne before landing back on the lane.  It was expected that the height and distance would vary depending on the speed.

9. Plan a full scale re-enactment of the accident on a snow covered test site implementing refinements to the re-enactment including safety measures derived from the preliminary testing

This was the plan – taking full scale testing in stages – first on a bare road then on a snow-covered road, and learning as we progressed.  But testing wasn’t carried out on a snow-covered site for a very good reason as explained below.

10. Design a videotaping and measuring of the re-enactment

It was decided to film the field tests to get a record of the jeep’s behaviour as it drove down the test lane and over the pile of material.  The filming would also record the measured height and distance the vehicle would be airborne during the test.

A camerman would be stationed opposite the pile of material to record the height and the distance the jeep travelled airborne.  Another was to be positioned in the bucket of a boom truck down the lane and approximately 50 feet above the lane to film a birds-eye view of the travel of the vehicle as it drove over the pile of material and on down the lane.  A third was to ride in the jeep with the driver to record the behaviour of the vehicle as experienced by the driver.

Finally, a camerman was to fly over the test site in a helicopter to record the layout of the test site.  The camerman would also film the vehicle stationary on the pile of material at the angle suggested by the tracks in the pile at the accident site.  The RCMP provided the helicopter.

11. Construct a full scale test site on an airport taxiway

A full scale test site was constructed on an airport taxiway according to the design and dimensions described above.  Permission to use the taxiway was arranged by the RCMP.

12. Re-enact and videotape the accident on the test site

Tests were carried out and filmed driving the vehicle over the pile of material at speeds of 20 km/hr initially and then at 30 km/hr.  The jeep was driven across the pile at right angles instead of at an angle as thought to have occurred during the accident. 

Tests were planned at higher speeds including the 50 km/hr travelled by the vehicle during the accident as concluded by the RCMP.  These tests were postponed because they would have been too dangerous without safety provisions for the driver.

I drove the vehicle during the tests.  I was struck by the erratic behaviour of the jeep on driving over the pile of material at 30 km/hr and the measure of difficulty controlling the jeep to avoid hitting the boom truck down lane. 

13. Analyse the videotape for evidence respecting the technical issues

It was enough experiencing the erratic and dangerous behaviour of the jeep during the test at 30 km/hr on bare highway, and viewing this on film, to conclude that the pile of material was a hazard on a snow-covered highway at 50 km/hr.  This resolved Technical issue #1 above.

There was insufficient information to assess the severity of the risk except to suspect it was high by whatever standard of evaluation was used.  Technical issue #2.

There was insufficient information to conclude if the pile of material caused the fatal MVA.  Technical issue #3.

14. Edit the videotape to portray the re-enactment in a report

There was approximately 30 minutes of film recorded by the three cameramen during the testing in this case.  This was edited to approximately 4 minutes for each camera and transferred to a DVD with voice overlay describing what was being viewed in each of three windows.  The DVD accompanied a report on the testing.

15. Report on the preliminary findings including safety issues

A report was prepared on the testing generally as outlined above.  The report basically concluded that it was too dangerous to continue the testing without safety precaustions for the driver. 

The report was presented to the RCMP and reviewed in a meeting.  The RCMP stopped the testing all together stating, “You’ve told us all we need to know”.  Presumably, the testing addressed all the technical issues to the satisfaction of the client.

Cause

The RCMP indicated, by stopping the forensic engineering investigation at the conclusion of an abbreviated preliminary stage, that the technical issues had been resolved and that they knew the cause of the fatal MVA.

Post mortem

The matter was settled out of court.

Lessons learned

1. The importance of researching the scientific and engineering literature.  It’s easy today and there’s lots out there.

2. Full scale field tests are practical, and the results are easy to see and understand by non-technical people.

3. Professional cameramen should be retained to film all field testing, particularly cases where movement is involved.

4. The value of generating a picture of the scene of an accident or an engineering failure at the time of the incident using programs like Photoshop.

References

1. “Technical” visual site assessments: Valuable, low cost, forensic engineering method.  My blog posted on this site, September 4, 2012

(This is an update of an item I posted in November, 2012 – see Ref. 11 below, as part of a series on the role of a professional engineer assisting counsel in civil litigation – see Bibliography below.

The update consists of three case histories of forensic engineering investigations that provided evidence relied on in Alternate Dispute Resolution.  The case histories are in italics)

Original article updated with three case histories

Alternate dispute resolution, ADR, refers to resolving disputes in ways other than going to court.

The role of professional engineers in ADR is to provide technical data, conclusions and opinions as to the cause of engineering failures, industrial, traffic and aviation accidents, and slips, trips and falls.  This type of information contributes to intelligent decisions as a basis for the resolution of disputes with technical issues.

This blog, one of a series, lists the tasks – itemized below, of a professional engineer’s role in ADR

In some areas, over 90% of lawsuits involving the built environment settle before going to trial, and this is often facilitated with evidence from forensic engineering investigations.

ADR can be carried out at any stage in civil litigation – even before an action is filed.  Once an action is commenced, ADR can still occur at any point but is mainly used after document production and discoveries have taken place.  At that point, each party is more fully aware of the other side’s case.  Each party has more information to assess the merits of the case, the strengths and weaknesses for both parties, and the likely outcome if proceeding through to trial. As such, ADR becomes relevant as the parties know better where each side stands.

There are three commonly used methods of ADR.  Other forms of alternate dispute resolution are used but the following are particularly relevant to civil litigation.

• Negotiation
• Mediation
• Arbitration

All forms of ADR rely on a presentation of facts, and resolution based in part on a consideration of the facts.

A professional engineer’s services are generally the same regardless of the ADR method selected by the client.

1. Review and examine all technical documentation, electronic data, physical evidence, tangible exhibits, demonstrative evidence, and transcripts of proceedings on the case
2. Visit and briefly re-examine the site
3. Review and confirm the forensic engineering investigations carried out by the different parties to the dispute, the data and technical evidence gathered, the analyses and reasoning, the findings, the technical facts, the conclusions, and the opinions formed on the cause of the engineering failure, poor structural performance, or personal injury/fatal accident
4. Review estimated costs to repair the damaged structure
5. Review the claims and the technical strengths and weaknesses of each party to the dispute, including counter claims and cross claims
6. Review the technical facts given in support of each party’s position and the technical evidence supporting the facts
7. Confer with counsel about their clear understanding of the technical evidence from the forensic engineering investigation, the technical facts supported by the evidence, and the technical issues on which the claim, defence, and counter claims are based
8. Prepare to testify as an expert witness if required
9. Provide the hearing with technical data and information to facilitate an understanding of the technical issues
10. Interpret and explain technical issues to a mediator or arbitrator
11. Serve as a mediator or arbitrator if the dispute has technical issues
12. Assist counsel in assessing technical elements in offers made by different parties to facilitate settlement

Negotiation

In negotiation, participation is voluntary and there is usually no third party who facilitates the process or suggests a solution.

If an individual or a firm has a disagreement with another they may get together to discuss the problem and reach a mutual agreement.  This way the parties can work out a solution that best meets the needs and interests of all parties.

In some cases individual parties may also prefer to hire a lawyer or a counselor who has the expertise to help a firm to negotiate or who can negotiate on behalf of the firm.

Mediation

In mediation, there is a trained, neutral third party, a mediator, who facilitates the resolution process (and may even suggest a solution) but does not impose a solution on the parties, unlike judges.  Mediation often leads to resolutions that are tailored to the needs of all parties.  The process is informal and completely confidential.  As a result parties may speak more openly than in court.

Case #1: Oil tank failure: An example of a dispute that was resolved in mediation would be a residential fuel oil tank falling into an excavation for a basement and spilling fuel oil onto the ground.  The homeowner and their insurance company send letters to the excavating company stating they were responsible for the incident and asking the company to pay for the clean-up of the contaminated ground.  The company does not agree and a mediation is scheduled. 

      Counsel for the homeowner retained the author who reviewed documentation on the case, including photographs, applied very basic soil mechanics principles – one of the sciences that underlies foundation engineering, to the field situation and explained in a report why the tank fell into the excavation.  Agreement was subsequently reached in the mediation.

Arbitration

In arbitration, participation is typically voluntary, and there is a third party who, as a private judge, imposes a resolution.  At an arbitration hearing, a party to a dispute may have a representative speak on their behalf.

Arbitration may occur when parties have a dispute that they cannot resolve themselves and agree to refer the matter to arbitrators.  Arbitration can also occur because parties to contracts agree that any future dispute concerning an agreement will be resolved by arbitration.

Arbitrators are often people who are experts in a specific area of the law or a particular industry, for example, engineering.

The arbitrator makes a decision based on the facts, any contracts between the parties in dispute, and the applicable laws.  The arbitrator will explain how the decision was reached.

If the applicable law allows, parties can decide in advance whether the arbitrator’s decision will be final and binding or whether it can be submitted to a court for review if a party disagrees with the decision.

Case #2: Foundation failure The author was retained well before civil litigation was begun to investigate the cause of cracks in the concrete block walls of a food processing facility in an industrial park.  The cracks continued to appear 10 years after construction of the facility. 

      Engineering investigation involved surveying the location and size of the cracks, precise elevation surveys, researching earthworks construction during development of the park, and a geotechnical investigation of the foundation soil conditions. 

      Analysis of the data concluded that the cracks were caused by foundation settlement in a poorly constructed fill.  The fill was grouted to increase its rigidity and stop the settlement.  The several parties involved in the action settled a multimillion dollar claim out of court.

Case #3: Bridge failure Another case that began early in the litigation process required the author to investigate the cause of a 22 foot span soil-steel bridge to fail.  The bridge – a large, corrugated steel culvert, carried a residential road over a stream.  A large hole formed in the road above the bridge when it collapsed injuring the driver of a car when they drove into the hole.

      The collapsed bridge was disposed of and a new bridge constructed before the author examined the site, making the investigation more difficult.  Several follow-up investigations were carried out.  The following were particularly valuable: Study of photographs taken on the day the bridge failed, examination of other steel culverts in the immediate area, a topographic survey of the site, and review of the documented modes of failure of these types of bridges. 

      Analysis of the data concluded that the bridge failed because of corrosion of the haunches of the steel culvert and inadequate inlet protection.  The parties involved in the civil litigation settled without going to trial.

Biliography

1. What is forensic engineering?, published, November 20, 2012
2. Writing forensic engineering reports, published, November 6, 2012
3. Steps in the civil litigation process, published, August 28, 2012
4. Steps in the forensic engineering investigative process, published October 26, 2012
5. The role of a professional engineer in counsel’s decision to take a case, published June 26, 2012
6. The role of a professional engineer assisting counsel prepare a Notice of Claim, published July 26, 2012
7. The role of a professional engineer assisting counsel prepare a Statement of Claim, published September 11, 2012
8. The role of a professional engineer assisting counsel prepare a Statement of Defence, published September 26, 2012
9. The role of a professional engineer assisting counsel prepare an Affidavit of Documents, published October 4, 2012
10. The role of a professional engineer assisting counsel during Discovery, published October 16, 2012
11. The role of a professional engineer assisting counsel during Alternate Dispute Resolutionn (ADR), published November 16, 2012
12. The role of a professional engineer assisting counsel prepare for a Settlement Conference, published November 29, 2012
13. The role of a professional engineer assisting counsel prepare for a Trial Date Assignment Conference, published December 12, 2012
14. The role of a professional engineer assisting counsel prepare for Trial, published, December 19, 2012
15. Built Expressions, Vol. 1, Issue 12, December 2012, Argus Media PVT Ltd., Bangalore, E: info@builtexpressions.com, info@argusmediaindia.com

Subtitle: Climate change for intelligent people

(Following is a guest-blog by Gary Bartlett, P.Eng. on global warming.  I’ve added a few introductory remarks relating Gary’s concerns about what is being reported in the popular media to forensic engineering investigation)

Introductory remarks: Global warming and forensic engineering 

A forensic engineering investigation of whether or not global warming is taking place might resolve the matter once and for all.

The scientific method underlies both the forensic engineering investigative process and the scientific investigative process.  A difference is that the results of a forensic investigation are closely examined in a court of law and rejected if found wanting.  On the other hand, the results of a scientific investigation, as sometimes reported, might not have received the same kind of exacting scrutiny.

This is particularly the case if the ‘scientific’ investigation is more in the nature of junk science serving the interests of the reporter rather than science.  Or the results of the science are modified to reflect the personal interests of the scientist or his/her employer.  Or simplied by the media with their sometimes questionable motives.

Articles in the Globe and Mail, Saturday, February 23, 2013, are relevant.  The one by Elizabeth Renzetti on the muzzling of government scientists, page A2.  A second by Margaret Wente on the questionable effect of global warming on the polar bear population, page F2.

Forensic engineering investigation must collect evidence – and follow the evidence where it leads, in resolving an issue objectively and with certainty.  The opInion of a forensic engineer is judged in a court of law for its objectivity.  The certainty with which the opinion is held is also solicited of the forensic engineer in assigning weight to the engineer’s results and opinion.

In a forensic engineering investigation, we form a hypothesis based on what we know, develop and carry out tests of the hypothesis, and, based on the results, confirm, modify, or refute the hypothesis (Ref. 1, 2, 3, and 4).  We carry out more tests of a modified or a new hypothesis.  An exhaustive implementation of that process solves the problem in most cases, if it can be solved, and enables an objective opinion to be rendered with considerable certainty.

G. Dedrick Robinson and Gene D. Robinson III don’t seem to believe that process has been followed to completion yet in an evaluation of the fact or otherwise of global warming.  For example, they believe that evidence such as the history of the earth has not been considered properly in an investigation of global warming.  They state their views in their book, “Global warming: Alarmists, Skeptics, and Deniers; A geoscientist looks at the science of climate change“.

If this is true – that the scientific method has not been rigorously followed in evaluating the fact or otherwise of global warming, it’s a serious omission.  The evaluation would not stand up to the most gentle of cross examinations in a court of law never mind the aggressive examination to which the results of a forensic engineering investigation are sometimes subjected.

What have Robinson and Robinson found in their look at the science of climate change that would not be tolerated in a forensice engineering investigtion?  Some of their findings are reviewed below in a guest-blog.

References

1. American Society of Civil Engineers (ASCE), Guidelines for Failure Investigation 1989
2. ASCE Guidelines for Forensic Engineering Practice 2003
3. Steps in the forensic engineering investigative process.  Posted October 26, 2012
4. What is forensic engineering?, published, November 20, 2012

(The following guest-blog of a recently published book on global warming has been contributed to The Forensic Engineering Blog by Gary Bartlett, P.Eng**)

Guest-blog: Climate change for intelligent people

A)     INTRODUCTION

I think that most of us understand that we need to be somewhat careful about believing everything that we hear and read.  Nonetheless, the media seem destined to accept verbatim the pronouncements of those with vested interests in perpetuating myths about the climate with little or no attempt being made to validate what they are told.  The result is a never-ending stream of terrifying pronouncements worthy of Chicken Little based on no science or on junk-science or on deliberately manipulated statistics.  That kind of stuff can wear a person down and truly cause one to wonder if maybe *they* are correct.  Well I was getting nervous, in any case.

Herein is an attempt to dispel some of the myths regarding climate change.  It is based on a 2012 book entitled “Global Warming: Alarmists, Skeptics & Deniers; A Geoscientist looks at the Science of Climate Change” by G Dedrick Robinson and Gene D. Robinson III, available from http://www.amazon.com/Global-Warming-Alarmists-Geoscientist-ebook/dp/B0070YUCXE.

The major attributes of this book are:

a)      The authors do not enter any debate with those with other agendas, whether they be political or economic or media-driven.  This book is a discussion of science as it impacts the climate of Earth, no more and no less;  and

b)      Conclusions reached in this book are based on scientific fact, historical data;, measurable trends, and peer-reviewed information.

B) PURPOSE

My purpose in summarizing the major facts contained in the reference is simply to encourage others to maintain a certain amount of cynicism when reading information found in the media on the whole topic of global warming.  If what one reads is not, or it cannot be, supported by science, then it’s best to move on.

C) BOOK’S MAJOR POINTS

Here is my attempt to provide a précis of the major conclusions – all fully supported in the book to which I have referenced – which should cause most people to take and maintain an open mind whenever they hear prognostications on the topic of global warming.  Readers owe it to themselves to obtain the book and read the detail to substantiate my summary.

1)      OMG, we are in a period of climate change!  Guess what: there has never been a steady state in climate since as far back as science has been able to infer temperatures.  By no means can current changes in temperature be described as even slightly unique or unusual.  Ignore the term entirely when heard used with the adjective *alarming*.

The more that one drills down into the details of planet temperature variations, the more that temperature variation profile begins to resemble a fractal.  Trying to forecast the future based on the nano-dimensioned period of, say, 50 years of temperature records is roughly equivalent to trying to estimate the shape of Halifax Bedford Basin from close examination of a foot-wide section of beach at the foot of the Dingle Monument a few miles away.   At high tide.

2)      The Greenhouse effect will kill us?  Yes, there is a greenhouse effect.  It has been known about for centuries.   Unfortunately one hears the term in a negative sense, but it is exactly the opposite.  Without the greenhouse effect (it prevents solar heat from escaping back into space), this planet Earth would be entirely frozen and life would have never developed.  The major controlling criterion (95%) that governs the extent of the greenhouse effect is water vapour, not carbon dioxide.  Doubling the current amount of carbon dioxide is equivalent to less than a 2% change in the amount of water vapour.

3)      Carbon dioxide is a pollutant?  That’s a strange way to view the product that all human life produces with every exhalation.  It is even tougher to accept that negative connotation when carbon dioxide is of absolute fundamental criticality to photosynthesis.  Plants demonstrate proportionally better results in an enriched carbon dioxide environment.  While carbon dioxide may be increasing in the atmosphere (although blaming that rise on humans is grossly unfair), current carbon dioxide levels are roughly 1/10 of what they have been for most of the history of the planet.

4)      Huge amounts of carbon dioxide are released from the burning of fossil fuels?  Well, huge is a relative term, but fossil fuels as a carbon sink amount to a total 4,000 GigaTons whereas limestone as a carbon sink is estimated at 100,000,000 GigaTons.  Carbon that enters the atmosphere from natural sources such as animal respiration and from the weathering of limestone greatly exceeds anything that humans are doing.  One needs to study the system which processes and then circulates carbon dioxide around the planet (it is a closed system with a turn-around time measured in years!) to provide a better feel for how much guilt is really appropriate for you to feel after committing the sin of using the remote control to start the car and letting it warm up at idle on a winter morning.

5)      Earth’s temperatures are being driven up by increases in carbon dioxide?  That would indeed be unique since well-established history over millions of years shows that temperature increases (periods of global warming) were followed by increased levels of carbon dioxide, not the other way around.  In the current scary environment, cause and effect are mistakenly being employed backwards.

6)      Global temperatures are rising?  Not for the past 17 years.  See  http://www.thegwpf.org/ipcc-head-pachauri-acknowledges-global-warming-standstill/.

7)      Computer models are the answer?  No, computer models are not (yet, if ever) the answer.  The planet is a huge system which defies modelling to the degree at which confident predictions are credible.  Most forecasts of impending climate horror are coming, not from a scientific analysis of historical facts, but are generated by  inadequate models which suffer from many unknowns when they try to manipulate the data and peer into the future.  Some of the unknowns in their algorithms are very critical in determining the final outcome of a climate predictive computer run.  That is, a tiny change in the estimate of any one constant in the algorithm can cause huge variations in the resulting conclusions.  The track record of general circulation model predictions of the past give no cause for confidence in their ability to predict the future, yet they are being heavily relied upon in the popular press (while more meaningful geophysical history is ignored),

8)      Data and graphs tell the story, right?  No, that’s not right.  It is appallingly easy to manipulate data to support a forgone preferred conclusion by taking it out of context, or by playing with X- and Y-axis scaling, etc, just to identify too common distortions.  Numerous well-known public presentations show conclusions that are not peer-reviewed and are not true except in the sense that they have been carefully selected and/or carefully presented or are specifically defined in words intended to deceive — all so as to support the position the presenter has espoused.  Run, if anyone uses the word “correlation”.  Here we need the rigour of science from respected sources.

9)      Ice; Two problems:

1. All the ice in the world is melting?  Everyone talks about the melting of all the Arctic ice to the north of Canada as if that were the end of the story; no-one talks about an off-setting gain in ice near the south pole; and
2. We shall die from rising sea levels? The sea level is rising already and has been for 18,000 years.  The rise has been three-hundred and fifty feet so far over that period, and the world and the planet are coping.  If all the ice in the Arctic were to melt and add to the oceans, the rise would be not be very exciting because most of the northern ice fields are already floating on water.  If the Arctic ice were to melt, the oceans do not rise any more than does the water in a glass of sarsaparilla after the ice-cube melts. [The opposite is true of Antarctica but the ice pack is building there]

D) GRATITUTOUS ADDITIONAL COMMENTS

The writers of the book from which I have been so freely cribbing, did not say any of the following things.  They are mine.  They are based on the qualifications that I claim below (which when added up amount to nearly zero):

1. Sun spots: Historical geophysical data would suggest that the climate (temperature) of the planet is greatly affected by sun spots.  Current data suggest that the planet could be entering into a period of back-to-back low 11-year sunspot cycle periods similar to what is known as the Maunder Minimum which had been observed centuries before.  Since good High Frequency communications propagation is directly proportional to the number of sunspots, this tentatively predicted period represents a prolonged bad-news situation for the amateur radio operator.    It may also be bad news for the planet since global temperature can be shown as being related to the quantity, location, and characteristics of sun spots.
2. The Maunder Minimum:  The many scientists among amateur radio operators who specialize in propagation prediction have access to all known recorded history of sun spot numbers which they analyze for recognizable repetitive patterns.  Others plot the data against the planet’s temperature, and if history repeats itself as perceived from these patterns in these consolidated plots, there is a case to be made that the next equivalent to the Maunder Minimum will result in less heat reaching earth from the sun.  Because of fewer sunspots (which are hotter than the normal sun’s surface temperature), that will see the planet grow colder to the point that the earth could enter a mini ice-age.   Freezing to death with no one to talk to is an unpleasant thought.
3. History   A big contributor to the problem associated with current reactions to “global warming” is that people do not read history.  Big storms are nothing new.  A hurricane in Newfoundland in 1775 killed four-thousand (4,000) people.  It made Hurricane Sandy look like child’s play. The term “monster” does not truly apply to Sandy when considered against previous storms.
4. Complicity People do not want to admit their own contribution to the catastrophic destruction that follows relatively common weather events.  The severe damage from Hurricane Sandy was caused by bad human decisions when the consequences were easily predictable.  Channels to incoming seawater waterways had been narrowed, thereby exacerbating tidal surges;  private residents happily built things on known flood plains;  condos and apartment buildings and businesses installed emergency generators and their control panels  in their basements.  And so it goes.

**Author’s Apology

**Gary Bartlett, P.Eng. is not a geoscientist, astrophysicist, meteorologist, nor does he know anything about those hard topics.  The closest he can come to claiming smarts in those areas is that he knows a guy – a long-time friend, who specialized for years in consulting geotechnical and environmental engineering, and now practices forensic engineering (Eric E. Jorden, M.Sc., P.Eng.).  Oh, but Gary has faithfully watched professional weathermen Monty, Rube, Peter and Kailin on CBC-TV.

Gary Bartlett, on the other hand, does recognize well-written material with a thorough bibliography from respected sources, he does understand the significance of terms such as “peer-reviewed”, and he does value the demonstration of the proper scientific method as taught by UNB BScEE 1962-67.  [His essential cynicism can be traced to a career spent exclusively in the aerospace industry, but that’s a different topic]

He really, really hopes that readers of this blog will buy the referenced book (see more about the author in the attached, below) to find out all the other encouraging fact-based peer-reviewed science that is collected there.  And it’s an easy read, too.  To top it off, Gene Robinson is personable and cooperative, too.  To my surprise, he responded quickly to my request that he review the above précis of his book for accuracy, and his reply caused me to repair a couple of incorrect statements, and allowed me to  strengthen others.  I release it with confidence.

Attachment:

From FORBES

http://www.forbes.com/sites/sap/2013/02/08/the-world-in-2033-big-thinkers-and-futurists-share-their-thoughts/.

The World In 2033: Big Thinkers And Futurists Share Their Thoughts

On Global Warming: Gene Robinson

“Twenty years ago, alarmists were already predicting calamitous effects in the near future from a warming planet due mainly to petroleum and coal combustion. The 1990 best-seller Dead Heat painted a nightmarish picture of our world in 2020-2030 when the temperature would average six or seven degrees greater. The first IPCC reports of 1990 and 1995 supported such scary scenarios, giving them an aura of scientific respectability. What actually happened is that the mean global temperature since 1993 increased about 0.2 degree C through 2012 with most of that occurring in the record year of 1998, at the peak of a thirty-year warming trend. Since then, the global temperature has plateaued with no clear trend up or down. Because the flattening is at the high point of a warming trend, each year has to be among the warmest recorded years, as the media tirelessly trumpets. What a convenient way to mask the fact that although CO2 has continued to increase, temperature has not, in spite of the computer models.

What, then, can we project for global warming in 2033? Instead of the abrupt warming that alarmists always say is about to start, my rather cloudy crystal ball says global temperature is more likely to continue showing no clear trend or to be at the beginning of a cooling trend. Alarmists will continue to blame every severe weather event on climate change and to oppose all energy projects except solar and wind. All studies supporting the alarmist view will continue to be publicized in the liberal media while all studies reaching conclusions in opposition will be ignored. Liberal politicians will still support schemes to tax carbon by trying to scare people of what will happen without them, even as the skepticism of ordinary people continues to increase. Grants will still be doled out to scientists whose previous results supported the politically correct view while proposals from skeptics go unfunded. In short, just as little has changed with regard to the politicizing of the global warming theory in the last twenty years, little is likely to change in the next twenty.”

Dr. Gene D. Robinson is Professor Emeritus at James Madison University in Virginia and author of Global Warming: Alarmists, Skeptics & Deniers – A Geoscientist Looks at the Science of Climate Change, available at Amazon and most book stores. He is also the publisher at Moonshine Cove Publishing, LLC.

Subtitled: Counsel, what part of “No” can’t you pronounce? 

(This is an update of an item posted in 2012 – see Ref. 2, as part of a series on the role of a professional engineer assisting counsel in civil litigation – see Bibliography below) 

We all must decline a case sometime, in engineering and in law, in the best interests of the injured party and ourselves.  We don’t always do that – say “No” when it’s in order.

For certain, we would decline because we believe the party doesn’t have a case, or we don’t have time to handle.

But, we must also decline because the problem is outside our area of expertise.  Or we don’t have sufficient expertise yet in an area we would like to practise.  Including the expertise to project manager the case that would be argued by more experienced counsel or professional engineers. 

I am investigating three failures and accidents now that were referred to me by two well experienced professional engineering colleagues who felt, on being contacted by counsel, that the problem was outside their area of expertise.  They were correct in this regard and it was professional of them to recommend another.

I do not take cases where the failure or problem appears to involve mechanical or electrical engineering.  Nor cases where a traffic accident has occurred involving a collision between two or more vehicles.  I just don’t have qualifications or experience investigating and analysing the cause of these types of problems.  

However, I would take a case where the traffic accident involves a structure on or near the highway.  For example, the Rankin fatal motor vehicle accident that appeared to involve a pile of salt on the highway – a structure to an a engineer.  Or a fatal step ladder accident that appeared to involve a defect in the step ladder – also a structure to an engineer.  

I take cases that involve the failure of a structure or damage to a structure, particularly those cases involving the foundations, also cases involving environmental contamination, flooding, and drainage.  

It’s important when recommending another professional engineer or lawyer that you have specific knowledge or experience of the person being recommended in the area of expertise required.  Recommending someone carries considerable responsibility.  There are some individuals and organizations that don’t recommend people in the event the recommended person doesn’t work out.

I’ve worked on three cases where I wondered about the experience of counsel in civil litigation.  In two cases it seemed like open and shut cases for the plaintiffs but they lost.  In one of these, relevant engineering investigative data, that had been reported to the plaintiff, did not seem to get presented in a timely manner to the defense, as noted by the judge.  In a third case, the plaintiff was near the discovery stage when it was realized that relatively expensive engineering investigation was needed that couldn’t be justified by the possible award. 

We must say, “No”, when we are evaluating whether or not to take a case if it’s outside our area of expertise in law or engineering, and only recommend another lawyer or engineer if we have reliable knowledge of our colleague’s expertise. 

Original post

(I’ve made small changes to hopefully make it easier to read)

Civil litigation tentatively begins when counsel meets with a potential client.  The purpose is to gather information to help him or her assess the merits of the case and decide if he should take it.

A professional engineer could have a role in this meeting, or in consultation shortly afterwards.  This is particularly the case if the legal and technical issues are likely to be complex requiring extensive engineering investigation to support a reliable opinion.

Some cases shouldn’t go forward

I’ve seen cases that should never have gone forward.  Not because of a lack of technical merit but because of the client’s limited financial resources to bear the cost of the forensic engineering investigation necessary to determine the cause of the problem.  These would be costs learned about after a claim was filed and discoveries held – and only after a professional engineer was retained to investigate the technical issues.

Information counsel wants

During the meeting, counsel obtains information from the client’s description of the problem and the damages he believes he has incurred, documents provided by the client, knowledge of witnesses, answers to questions raised by the lawyer, the lawyer’s past experience of similar matters, and comments by an expert on the technical issues.

Expert can make or break a case

One of several important considerations covered by the meeting and the lawyer’s review of the facts is the need for an expert on the case.  An expert can make or break a case and if thought to be necessary should be chosen carefully and retained early (Ref.1).  Even if only retained briefly to support counsel’s assessment of merit, in the event counsel decides not to take the case.

If a professional engineer is not included in the meeting, then counsel might confer with one later during his review of the facts prior to making a decision about taking the case.  The engineer would, of course, review the information from the meeting, particularly the documents, and identify the technical issues prior to counseling the lawyer.

The engineer can also provide very preliminary comment on the engineering investigation needed to address the technical issues and to formulate an opinion on the cause giving rise to them.  The engineer would educate counsel by outlining some of the tasks that would need to be carried out during an investigation and the time to do these – factors that can have a significant impact on the cost of litigation.

Client’s ability to bear costs

If the technical issues are complex – and the engineer can certainly help determine that, the monetary claim for damages likely to be substantial, and the lawsuit quite lengthy then this will affect the client’s litigation costs.  The client’s ability to bear these costs is important information in counsel’s decision on taking the case.  An engineer can have a role in assisting counsel make that decision.

Tasks a professional engineer can carry out in assisting counsel

Following are tasks that a professional engineer – or any expert for that matter, could carry out during or shortly after counsel’s first meeting with a potential client to assist counsel’s decision about taking the case.  The list is highlighted in blue and bold to break up a long list of tasks and hopefully make the list easier to read – there’s no special significant to what is blue or bold.  There are a lot of helpful suggestions for counsel in the following:

1. Attend and audit the meeting for technical issues, or meet with counsel shortly afterwards
2. Review client’s descriptions of the problem and the reasons for claiming damages
3. Read available documents
4. Review witness’ statements as soon as taken by counsel
5. Begin identification of potential technical issues
6. Begin identification of technical documents counsel to seek
7. Familiarize counsel on the typical stages and tasks in a forensic engineering investigation, the fact of unexpected follow-up investigations, the fact that investigations can lead in unexpected directions, the time required, and the difficulty estimating costs 
8. Identify physical evidence, tangible exhibits and possible demonstrative evidence
9. Brief counsel on parties that might be involved in the potential litigation and their relationship to the technical issues
10. Provide information that would facilitate early settlement
11. Note unfavourable evidence for the potential client’s claim
12. Remind counsel that only one side of the story is known.  The opponent’s story and documents could give rise to a small shift in the technical facts and alter the complexion of the claim
13. Tentatively assess the technical merits of the case with respect to the potential parties
14. Outline preliminary engineering investigation and the major tasks involved
15. Speculate on follow-up investigations
16. Identify specialists that may be required
17. Speculate on the order of magnitude of investigative costs
18. If counsel decides to take the case, and position letters are appropriate, ensure that demand letters, and responses, are based only on well-established technical facts and data as known at the time

References

1. Stockwood, Q.C., David, Civil Litigation, A Practical Handbook, 5th ed, 2004, Thompson Carswell
2. The role of a professional engineer in Counsel’s decision to take a case.  Published June 26, 2012

Biliography

1. What is forensic engineering?, published, November 20, 2012
2. Writing forensic engineering reports, published, November 6, 2012
3. Steps in the civil litigation process, published, August 28, 2012
4. Steps in the forensic engineering investigative process, published October 26, 2012
5. The role of a professional engineer in counsel’s decision to take a case, published June 26, 2012
6. The role of a professional engineer assisting counsel prepare a Notice of Claim, published July 26, 2012
7. The role of a professional engineer assisting counsel prepare a Statement of Claim, published September 11, 2012
8. The role of a professional engineer assisting counsel prepare a Statement of Defence, published September 26, 2012
9. The role of a professional engineer assisting counsel prepare an Affidavit of Documents, published October 4, 2012
10. The role of a professional engineer assisting counsel during Discovery, published October 16, 2012
11. The role of a professional engineer assisting counsel during Alternate Dispute Resolutionn (ADR), published November 16, 2012
12. The role of a professional engineer assisting counsel prepare for a Settlement Conference, published November 29, 2012
13. The role of a professional engineer assisting counsel prepare for a Trial Date Assignment Conference, published December 12, 2012
14. The role of a professional engineer assisting counsel prepare for Trial, published, December 19, 2012
15. Built Expressions, Vol. 1, Issue 12, December 2012, Argus Media PVT Ltd., Bangalore, E: info@builtexpressions.com, info@argusmediaindia.com

(The update includes a case history illustrating the importance of a preliminary estimate of engineering invesigative costs before filing a Statement of Claim.  A bibliography lists all the items published last year in “The role of ….” series.  This item was originally published on September 11, 2012)

Preparing and filing a Statement of Claim with the court – typically along with the Notice of Claim, is the second of four steps collectively known as the Pleadings in the civil litigation process.

A professional engineer or other expert can be particularly valuable at this stage.  Our forensic engineering investigations provide the evidence that establishes the technical facts and identifies the technical issues on which a claim for damages in the built environment is based.

(Tasks by a professional engineer assisting Counsel are listed below in blue text)

A preliminary estimate of forensic engineering investigative costs by the professional engineer might be particularly valuable at this time.  See the following case:

Case; Wet Basement: This case illustrates the importance of planning and estimating the cost of an engineering investigation of the cause of a failure before preparing and filing a Statement of Claim.  An important question is whether or not a claim for damages will cover the estimated investigative costs.  An argument can also be made for carrying out some preliminary engineering investigation to learn if there is likely to be a basis for a claim in the first place.  

I was retained by Counsel to investigate the cause of a wet basement found shortly after the client purchased the property.  A visual inspection of the property established the strong possibility that the cause would support a claim.  However, the certainty of an opinion based on a visual, somewhart subjective inspection would be much less than an opinion based on objective measurements and tests in the field. 

The field tests were estimated to cost several thousands of dollars excluding engineering analysis and reporting.  In additon, there’s always a possible need for follow-up investigations in cases like this.  Counsel and client decided not to carry out the field tests because of the costs.  I do not know if the claim was pursued based on my visusl assessment and preliminary opinion.   

We can also evaluate the technical content of the Statement of Defence and the technical strengths and weaknesses of the defence’s response to the plaintiff’s claims.

The following assumes the early involvement of a professional engineer to ensure a Statement of Claim is technically well founded and cost effective.  Early involvement avoids the engineer or expert having to play catch up, and counsel finding himself out on a limb with a Statement of Claim that is not as technically complete and as well founded as it might have been.

The role of a professional engineer during the different steps in the civil litigation process was described in a number of postings last year – see the following references and bibliography.

• Notice of Claim
• Statement of Claim
• Statement of Defense
• Affidavit of Documents

The Statement of Claim is more particular than the Notice of Claim.  It is a document that further describes the parties and defines their relationship(s) with each other.  The Statement of Claim is a listing of the facts.  In construction and engineering claims, the parties oftentimes have a formal contract.  In general negligence claims, the parties are often in proximity such that one owes the other a legal duty – to do or not do something.

Counsel for the plaintiff prepares a Statement of Claim that sets out the disputed issues and the claims the wronged party, the plaintiff, is making against the defendant.  The claims would include, for example, the relief sought – what the plaintiff wants the court to award.  This can be very general, such as claiming damages, costs, and interest.  It does not usually state exact dollar figures.

The Statement of Claim is served on the defendant by the plaintiff, typically through a process server who is engaged to personally hand-deliver the document to the defendant.  The person delivering the document swears an affidavit that this was done.

A professional engineer can assist counsel in the following ways during preparation of a Statement of Claim (the list of tasks are shown in regular and bold text to make them easier to read) :

1. Review narrative from the complainant for technical evidence
2. Review available evidence of lay witnesses, and other experts and specialists
3. Complete the engineering investigation of the cause of the failure or accident, the technical issues and questions identified by counsel, and any follow-up investigations found to be necessary.  (Some preliminary engineering investigations during earlier steps in the civil litigation process would have alerted counsel as to the direction the engineering investigation seemed to be leading with respect to counsel’s interests)
4. Analyse the data gathered during the investigations and establish the cause of the failure or the accident 
5. Document the reasoning leading to the identification of the cause
6. Define the technical issues between the parties as established during the investigations
7. Identify the technical facts relevant to the cause of the failure or accident
8. Identify the evidence supporting the facts
9. Review the Statement of Claim and confirm the correct understanding of the technical facts and issues in the claim the plaintiff is making against the defendant
10. Identify parties that could be involved in the engineering failure or accident that have not been named in the Statement of Claim
11. Prepare preliminary design of repair of the damaged structure 
12. Prepare preliminary estimate of the cost of repair
13. Prepare a report on the instruction of counsel describing the investigations, the data gathered, the analysis and reasoning, the findings, the conclusions, and the opinion formed
14. Review the Statement of Defense, counter claims, and cross claims – and counsel’s response to these statements, and ensure correct understanding of technical facts and issues 
15. Assess the technical strengths and weaknesses of the case for the defense, the counter claims and cross claims

References

1. Steps in the civil litigation process.  Published August 28, 2012
2. The role of a professional engineer in counsel’s decision to take a case.  Published June 26, 2012
3. The role of a professional engineer assisting counsel prepare a Notice of Claim.  Published July 26, 2012
4. Stockwood, Q.C., David, Civil Litigation, A Practical Handbook, 5th ed., 2004, Thompson Carswell
5. ASCE Guidelines for Forensic Engineering Practice, 2003, American Society of Civil Engineers

Biliography

1. What is forensic engineering?, published, November 20, 2012
2. Writing forensic engineering reports, published, November 6, 2012
3. Steps in the civil litigation process, published, August 28, 2012
4. Steps in the forensic engineering investigative process, published October 26, 2012
5. The role of a professional engineer in counsel’s decision to take a case, published June 26, 2012
6. The role of a professional engineer assisting counsel prepare a Notice of Claim, published July 26, 2012
7. The role of a professional engineer assisting counsel prepare a Statement of Claim, published September 11, 2012
8. The role of a professional engineer assisting counsel prepare a Statement of Defence, published September 26, 2012
9. The role of a professional engineer assisting counsel prepare an Affidavit of Documents, published October 4, 2012
10. The role of a professional engineer assisting counsel during Discovery, published October 16, 2012
11. The role of a professional engineer assisting counsel during Alternate Dispute Resolutionn (ADR), published November 16, 2012
12. The role of a professional engineer assisting counsel prepare for a Settlement Conference, published November 29, 2012
13. The role of a professional engineer assisting counsel prepare for a Trial Date Assignment Conference, published December 12, 2012
14. The role of a professional engineer assisting counsel prepare for Trial, published, December 19, 2012
15. Built Expressions, Vol. 1, Issue 12, December 2012, Argus Media PVT Ltd., Bangalore, E: info@builtexpressions.com, info@argusmediaindia.com

(The following is one in a series of cases I have investigated that illustrate the different types of structural failures and accidents that occur resulting in civil litigation, and the forensic engineering methods I used to investigate the cause)

The investigation is reported under the following main headings with several sub-headings:

• The case (a description of the failed structure – significant cracks in a building, the “lega”/technical issues, and my “client”
• “Forensic engineering” investigation of the failure and the methods used
• Cause (of the failure)
• Post mortem (an interesting side story and a lesson learned)

The case

I carried out my first “forensic engineering” investigation during my 5th year studying civil engineering at the University of New Brunswick (UNB).  This was at a time when I was an engineering student and had no understanding at all of forensic engineering, and wasn’t even qualified as a professional engineer.

Nevertheless, this was a significant and costly building failure but, fortunately, not a catastropic one.

We took our lectures in a room on the second floor of a two and a half story brick clad building with a full basement – the “engineering building” on the UNB campus.

During our 5th year the foundations of one wall of the building settled causing 1″ to 2″ wide, vertical cracks – as I remember the size, to appear in the front, left corner of a wall of the lecture room.  You could see daylight through the cracks.  This would be significant damage to an existing building

“Legal”/Technical issue

To me as a student with an interest in geotechnical and foundation engineering, the cause of the cracks was an issue of considerable interest.  I undertook to investigate and report on the cause to meet the requirements of one of my courses.

Client

My “client” in a sense was the professor who was giving the foundation engineering course.

“Forensic engineering” investigation

My “forensic engineering” investigation involved the following:

• Visually assess the exterior of the engineering building
• Determine how the building was constructed
• Research construction techniques

Visual assessment

A visual assessment of the exterior of the building found that an addition to the engineering building was being constructed immediately adjacent the existing building.  Consulting engineers for UNB had hired a contractor to build a new engineering building adjacent the old – only a few feet away.  Construction involved a deep excavation adjacent the shallow foundations of the existing building.

Building construction/Construction technique

I learned that the existing engineering building was supported on shallow spread footings founded in the natural soils.  Excavating near and well below natural foundation soils like these requires their support in some manner to prevent undermining the soils.

I saw during my visual examination that the contractor had installed a soldier pile shoring system to temporarily support the foundation soils beneath the existing building.

This type of foundation support system consists of steel piles driven vertically into the ground at regular intervals adjacent the existing building foundations.  The piles may also be installed in previously bored holes in the ground eliminating the ground vibration from pile driving.  As the excavation is taken deeper timber – lagging, is inserted horizontally between the piles to support or shore up the soil in the side of the excavation – in this case soil that is adjacent the existing building’s foundation soil.

A soldier pile shoring system is a good support system if constructed properly and its limitations kept in mind.

Research construction technique

I researched the shoring system and found that it “gives” or yields a little – deflects along it’s length in engineering terms, when mobilizing its strength to provide support to the soil it is retaining.  The retained, shored up soil behind the shoring system gives a little as well – moves sideways and away from the foundation soils to which it is providing lateral support.  This effectively undermines the foundation soils a little causing the soils to settle and the building foundations to settle as well.

This deflection is due to the piles bending along their length.  The piles will also deflect or tilt a little if they are not driven or embedded deep enough during installation.

This lateral movement of the shoring system and settlement of the soils and foundations is normal.  It can be negligible if the shoring system is properly designed and installed.  The movement can be significant causing damage to the foundations the shoring system is designed to protect if the support system is not well designed and installed.

Installing soldier piles by driving them in place causes the soils in the immediate area to vibrate.  Soil settles when it is vibrated.  Anything in the soil – like building foundations, settles as well.

Cause

I analysed the data that I had collected – the manner of construction of the shoring system and the results of my research, and concluded the cause of the failure and submitted my student engineering report.

In this case the soldier pile system deflected too much causing the foundation soils to yield or move sideways and settle in the process.  This caused the building walls to settle as well and the corners to crack and open up.  The deflection was probably due to a combination of the causes noted above:

• Vibration of the soils during installation of the piles
• Tilting of the soldier piles due to shallow embedment
• Deflection along the length of the piles

Post mortem

I passed my year so I must have got it right, not treading on any toes in the process – the engineers who approved the soldier pile system that failed were my professors who had formed a consulting engineering company to do this type of work.  Failures occur in spite of the best efforts of the best people.