Legal causation in bodily injury: Forensic engineer’s view

A plaintiff’s lawyer doesn’t have a reliable legal claim – and money well spent on a medical expert, until the technical issues in a personal injury case are identified and investigated, and the cause of the accident established.  Only then can the responsible parties be reliably identified by the lawyer.

I know this because I have been retained as an expert to investigate the cause of accidents like slip and fall, motor vehicle, toxic fume emission and ladder falls.  There are different elements in cases like these.  Legal and medical elements are two.  The technical element is another – an important one that comes first in a personal injury case if it’s to start off on the right foot.

There are also several different involved parties depending on the technical cause of the accident – at least four in a slip and fall accident. (Refs 1, 2)  And a similar number in a ladder accident.

I was reminded of this when I read about the plaintiff legal practice conference entitled “The Doctor Is In: Medical Elements of Injury Cases”.  It’s planned for this June in St. John’s by the Atlantic Provinces Trial Lawyers Association (APTLA).

The two day conference looks extremely good for practicing lawyers with at least a dozen featured topics and national and international speakers from the medical and legal professions. The topics are medical or closely related as would be expected.  The topics on the law of expert evidence and preparing to discover an expert are also timely, particularly to those of us retained as experts.

An important two-part topic is on causation:

  1. A pathologist’s view of medical causation in bodily injury
  2. Legal causation, the law and variance from medical causation

This topic really needs to be treated in three parts for an even more complete and comprehensive conference:

  1. A pathologist’s view of medical causation in bodily injury
  2. Legal causation, the law and variance from medical causation
  3. A forensic engineer’s view of technical causation in bodily injury and how it varies from legal causation

How can a lawyer confidently and reliably process a plaintiff’s claim for damages arising from bodily injury when he or she doesn’t know the technical cause of the accident and from that the party(s) responsible?  The emphasis is on confidently and reliably because lawyers are doing it now and managing often enough.  But that’s not good enough.

Establishing causation involves a two-stage inquiry: (Ref. 3)

  1. The first stage involves establishing ‘factual’ causation.  That is, determining exactly what happened and who might have been involved in the incident.  This is the forensic engineering investigation.
  2. The second stage involves establishing ‘legal’ causation.  This is when a lawyer reviews the factual causation – after it’s been established, and determines if the law is involved in the incident.

Determining factual causation in cases like the following is not lawyer-work.  It’s not even in the engineering text books in some cases and for certain not in the medical and legal text books.  A forensic engineer often has to “figure it out” as he goes along.

And often enough there is more than one party involved in what happened.  These parties are not known until the engineering investigation is complete.  I’ve seen the wrong party named in cases that were filed months, sometimes years before I was retained to investigate an incident.

Some examples of personal injury cases:

  • I used a piece of pork belly – a pig’s belly skin, to investigate one slip and fall accident,
  • also showered and walked across an accident site dripping water from my bathing suit to learn where water on a floor came from,
  • investigated soap detergent on a stair landing at a retail outlet,
  • carried out full scale field tests in a fatal motor vehicle accident,
  • planned full scale tests using a Hollywood-style stunt man in a fatal step ladder accident,
  • researched how a building “breaths” in one toxic fumes emission case and
  • how fuel oil weathers in the ground in another, and,
  • used binoculars to establish the cause of a man’s head injury from falling ice.
  • a colleague investigated a trip and fall accident where the injured party was half-running backwards

Cases like these don’t get resolved until the technical issues are identified and investigated.  One of the above cases went on for 11 years then settled in 4 months after I completed my engineering investigation and established cause.  Many months to a few years is normal.  For sure, some of the delay is due to short comings and backlog in the justice system but not all.

I’ve seen similar situations in cases involving structural deficiencies and engineering failures and collapse in the built and natural environments as distinct from personal injury accidents.

Until the technical issues are identified and investigated thoroughly, technical causation established and the involved parties identified, the doctor’s view of medical causation might suffer for lack of some technical data.

And the practicing plaintiff lawyer won’t know who to sue, confidently and reliably – he could well be out on a limb.  To borrow and modify a comment in the description of the conference topics, “Don’t let (missing data on technical) causation sink your case”.

A three-part topic on causation is needed at the conference in St. John’s in June – medical, legal and technical – if the APTLA membership and their plaintiffs are to be even better served.

References

  1. Sebald, Jens, Phd, System Oriented Concept for Testing and Assessment of the Slip Resistance of Safety, Protective and Occupational Footwear, Pro Business Gmbh, Berlin, 2009
  2. Di Pilla Steven, Slip, Trip, and Fall Prevention, a Practical Handbook, 2nd ed., CRC Press, New York, 2010
  3. Wikipedia, April 12, 2016

 

 

 

Thinking about the cause of “wavey”, sagging floors in a building and how Counsel benefits

I recently mentioned how you can think – hypothesize, about the cause of a failure or accident based on very little evidence, then modify your thoughts as more comes in. (Ref. 1)  This is the nature and technique of forensic engineering investigation.  Some of the evidence can be as brief as a chance remark years ago, as happened to me.  Following is another example of this process.

(Counsel benefits from a process like this – ideally when the merits of the case are assessed.  But also when you think you have enough technical evidence to go forward and want to cut costs by stopping the forensic investigation)

***

There are a lot of multistory buildings in the Halifax area.  I learned that at least one is defective because the floors are sagging – the floors are “wavey” to use one person’s description.  A defect is a failure in engineering.

The floor in one of the rooms on the 10th floor slopes down 1.5% to 2.5% from the end to the middle.  It sags in the middle.  The room is 22 feet long by 12 feet wide.  That means the floor sags 2 to 3 inches.  That’s a lot for a commercial building.  It’s far more than a construction tolerance of 1/4 inch.  You can see the slope in the length of the conference tables.  I measured the floor with a tape and a digital level.

In another large, square room chairs with casters roll to the left side of the room when you’re sitting in one.  That happened to me.  The floor slopes down to the left in this room compared to the middle in the other room.  At least on the left half of the room where I was sitting.  Quick measurements in three places in the room and also in the reception area indicated slopes of 0.1% to less than 1.0%.  Staff in the office on this floor report that the floors slope in all the rooms.

I saw that the floors were not level on the 12th floor of the building.  Office staff were not conscious of this but they did say that previous tenants reported that the floors were not level.  I also saw the floor sloping down from a concrete column in an office on the 4th floor.

A staff member familiar with four floors in the lower part of the building reported that the floors were “Wavey.  Not very, very, very level.  We have to level when we do renovations”.

Building construction

The building is made of concrete – concrete foundations, columns and floors.

The foundations are supported on bedrock which is very strong.  I learned this from a friend who saw the foundations being constructed when his company worked on the building site.  He also said multistory buildings like this are erected quickly so they can be rented as soon as possible and make money.

Construction technique

The construction technique used to erect multistory concrete buildings is sensitive to construction schedule.

A concrete floor in a multistory building is constructed by placing concrete in forms that are supported on jack posts.  The jack posts are in turn supported on a previously constructed concrete floor below.  The floor below will also be supported on jack posts below it.  Jack posts are steel posts whose length can be adjusted – jacked up

You can see this construction technique in different places in Atlantic Canada – a number of jack posts at each floor level – usually three or four levels, below the floor under construction.  There are at least two buildings under construction now in Halifax using this technique, one on Jos. Howe Drive and the other on Young Street.

The technique involves removing the jack posts from the lowest floor and leap-frogging over the upper floors to support the forms for the next floor under construction above.

Construction schedule

I knew the construction manager who directed the work crews erecting the defective building years ago.  He told me one time – the chance remark, that he was on a very tight schedule to construct the building – had to get it up in a hurry.  Just like my friend said for multistory buildings, in general, but this one sounds like it was rushed even more.

Concrete strength

The jack posts are removed from the lowest level when the strength of the concrete forming the floor being supported just above is high enough.  The strength of concrete floors is specified by the design engineer according to the planned construction and use of the building.  Concrete sets up – gains in strength, over a number of days from the wet concrete when placed in forms to the rock-hard concrete later.  The quality of the concrete delivered to a building construction site is checked by testing companies to ensure it will set up to the design strength.

Analysis of the cause of the “wavey” floors

Building components

The defective, multistory building had five components when it was under construction:

  • Concrete columns
  • New concrete floor
  • Forms temporarily supporting the new floor
  • Jack posts supporting the forms
  • Recently constructed floors supporting the jack posts

Limited information

The limited information for a hypothesis in this case is:

  • Floor condition: – Sloping and sagging but usable
  • Building construction: – Simple concrete columns and floors
  • Construction technique: – Construct a new floor by placing concrete in forms supported on jack posts resting on recently constructed floors below.
  • Construction schedule: – The multistory building was put up in a hurry
  • Concrete strength: – Concrete gains its full strength over time
  • My experience during construction of one multistory building and examination of another during construction

Possible causes

Analysis of the limited information suggests the following possible causes associated with one or the other of the building components.  The causes are listed beginning at the top surface of the new floor:

Cause #1. The floor forms were constructed level but the concrete was not placed and troweled level by the concrete finishers

I believe the concrete was placed and troweled level – or to the level of the forms, an important qualifier.  I’ve seen concrete finishers at work often enough.  They are proud of their craft.  And besides, the concrete form they must place and trowel the concrete to is right there in front of their eyes a few feet away.  It would be difficult to make a mistake.

Cause #2. The floor forms were not level because mistakes were made in measuring the position of the new floor on the concrete columns.  These marks are the starting point for leveling the forms

Similarly, it would be difficult to make a mistake measuring the position of the new floor on the concrete columns.  This is a simple measurement with a tape.  I can imagine it being checked and rechecked.  “Measure twice, cut once” like a carpenter does.

Cause #3. The floor forms were not level, either because of the leveling method or because the posts were not jacked up properly

The jack posts would be placed according to the level of the forms and adjusted up or down a little as required by the form leveling technique.

Based on what I’ve seen on construction sites, I can easily imagine a carpenter’s level with a spirit bubble being used to check the level of the forms and the need to adjust the jack posts.  Cheap and quick on a job that’s in a hurry, also inaccurate.  Inaccurate in different directions too depending on where you put the carpenter’s level. This would result in different slopes to the floor forms – and different slopes and sags to the finished concrete floor like I saw in the defective building.

What I’ve seen – the plumb of concrete columns being set with a carpenter’s level – floor after floor after floor on one 20 story building.  Very crude.  It’s not too great a leap of faith to believe that the floor forms were set “level” in the same way in the 20 story building.

Cause #4. The forms sagged when the heavy concrete was poured because the distance between the jack posts was too great

This might be possible but unlikely because jack posts would be placed at the construction joints between concrete floor forms.  The forms themselves would be more than rigid enough to support a layer of concrete a few inches thick.  The forms are likely to be reusable – certainly from floor to floor, but also from job to job.

Cause #5. The floors sagged because the jack posts were removed before the concrete set up and was strong enough

This is possible.  I can’t dismiss it.  Particularly if low strength concrete was accepted at the construction site and there were only three floors of jack posts in place.  However, I might expect sloping and sagging to be more broadly distributed across the new floor rather than quite variable like in the defective building.

The floor in the long, narrow room on the 10th floor that tweaked my interest sagged 2 to 3 inches over about 10 feet.  And the slope was in a different direction in the square room about 25 feet away from the narrow room.

I also can’t imagine low quality concrete being accepted at a construction site – truck load after truck load and floor after floor.

But this cause is possible because I just don’t have enough information on how deflection three or four floors down would affect a new floor way up above.

Cause #6. The floors sagged because an inadequate number of the lower floors were supported with jack posts beneath the upper floor that was under construction

This cause might be possible if jack posts were placed at only two levels rather than the three or four that seem to be normal.  I see four in the two buildings I drove by recently.  It seems like a risky decision for a construction manager on a very tight schedule and in a real hurry to get the building up even if he’s prepared to accept low strength concrete.  I also don’t know as mentioned above on how deflection two or three floors down would affect a new floor.

***

What do I think is the likely cause of the “wavey”, sagging floors based on the limited evidence?

I think – my initial hypothesis, that the floors slope and sag – because the forms were not leveled properly – Cause #3 – in the rush to get the building up.

***

The following is what we do in forensic engineering when we think about the cause of a failure or personal injury for Counsel and the justice system:

  • Gather the evidence as limited as that might be and from whatever source,
  • Analyse it – carefully study each piece of evidence, note it’s nature and significance, how each piece relates, where each piece leads and what the whole tells us,
  • Identify and list possible causes, and related technical issues
  • Factor in our experience,
  • Think about and hypothesize cause – come down on one cause or the other,
  • Go gather more evidence
  • Analyse it – etc. etc.
  • Check if the initial hypothesis stands up to the new evidence,
  • Accept the hypothesis, modify it, or reject it completely and start over.

More evidence in the case of the defective, multistory building would be a precise elevation survey and contouring of many or all of the floors in the building.  Basically quantify the nature and extent of the problem, the defect whose cause you must determine.  But this is not likely to happen because the building although defective is functioning quite okay.  I’m sure there are others like it in Atlantic Canada.

References

  1. Bridge failure in litigation due to inadequate bracing – City of Edmonton.  But, inadequate for what?  Posted March 15, 2016

Bridge failure in litigation due to inadequate bracing – City of Edmonton. But, inadequate for what?

(Forensic investigations are carried out by hypothesizing the cause of a failure or accident based on the evidence available at the time – as limited as this might be, and revising the hypothesis as more evidence comes in.  This successive hypothesizing and revising might be done several times during an investigationThe following is an example of this process.

Counsel benefits from a process like this early in a case – ideally before deciding to take the case, when an expert studies the evidence, then, based on the available evidence, identifies and evaluates the technical issues and the cost to investigate these)

***

The cross bracing was inadequate.  I concluded that last March, a few days after the failure. (Ref. 1) I used the bridge failure to illustrate how a hypothesis – an idea, could be formed about the cause of an engineering failure based on very little evidence.  In this case, all I had were some on-line photographs .

But, inadequate for what?  To resist the service plus construction loads – weights and pressures on the bridge, as required by the Canadian Highway Bridge Design Code?  If there’s no bracing at all – none, these loads would cause the girders to buckle sideways in the order of 375 mm, not the approximately 1,000 mm or more seen in the photographs.

The 1,000 mm was determined from the photographs by scaling like we do on maps.  The known 3.0 metre depth of the girders at the middle section – see Sources below, is like a scale or ruler in the photograph.  This depth is about the same as the spacing between the girders, maybe a little less.  I decided the spacing was 3.5 metres.  I saw that the girders had buckled about 1/3 of the way into the 3.5 metre spacing – 1,000 mm or more.

The 1,000 mm buckling indicates a greater load was acting on the girders than perhaps was required to be resisted by the Code.  Where did the greater load come from to cause the 1,000 mm?

The only thing attached to the girder – at the top, that can be seen in the photographs is a sling at the end of a crane’s cable.  The cable is attached to a crane’s telescopic boom.  The boom would sway and flex a little in the wind that was blowing that night which would cause the sling below to tug on the girder – a point load in engineering.  Construction cameras show the girders intact at 2:00 in the morning and buckled at 2:15.

I hypothesized last March that this repetitive tugging caused the girders to buckle like they did.

The 1,000 mm magnitude of the buckling and the fact that crane booms sway in the wind supports this idea that tugging on the girders was the source of the greater load.

It would be of interest to know if the bracing that was in place – and seen bent in the photographs, was adequate to prevent buckling, except for the 1,000 mm due to the tugging.  There are simple calculations that bridge design engineers do to determine the bracing needed to prevent buckling in the order of 375 mm.

I did think about a sudden foundation soil failure causing the crawler crane to subside and the cable to tug on the girder as a result.  I dismissed this idea because the crane had been there a while lifting 40 tonne girders into place.  Foundation failure would have occurred some time before because of these heavy lifts if the foundation soils were inadequate.

The only way I would revise my hypothesis is to note that the crane operator did not contribute to the failure because he was not working.

The initial hypothesis

The bridge failed because the middle crane’s boom moved in the wind – possibly also due to the crane operator’s actions, causing the cable to periodically tug at the middle section of beam #6 and eventually cause it to bend.  This caused the middle sections of beams #5 and #4 to bend as well because they were connected to #6 by some cross-bracing.  The cross-bracing was inadequate to resist the force from the tugging indefinitely and eventually failed too.  The middle sections of beams #3, #2, and #1 did not bend and fail because they were adequately cross-braced.

Revised hypothesis

The bridge failed because the middle crane’s boom moved in the wind causing the cable to periodically tug at the middle section of beam #6 and eventually cause it to bend.  This caused the middle sections of beams #5 and #4 to bend as well because they were connected to #6 by some cross-bracing.  The cross-bracing was inadequate to resist the force from the tugging indefinitely and eventually failed too.  The middle sections of beams #3, #2, and #1 did not bend and fail because they were adequately cross-braced.

Sources

I studied various photographs on-line including construction photographs taken at the time of the failure.

I spoke with Barry Bellcourt, the Road Design and Construction Manager for the City of Edmonton, a few weeks ago, also Bryon Nicholson, Manager of Special Projects. Barry mentioned the litigation and the city’s position.

I also learned from him that the bridge consists of seven, 40-tonne girders.  Each girder consists of two 7.5 metre long end sections and a 43 metre middle section.  The end sections are 4.5 metres deep arching up to 3.0 metres at the middle section.  The sizes are approximate.

I saw and photographed the underside of the repaired bridge girders from Groat Road in early August when I was in Edmonton.

I understand it was windy the night the girders buckled and that was the reason workers were not on the job.

I spoke with four companies in Nova Scotia that operate cranes.  I learned that crawler crane booms move in the wind; flex and sway.  There is greater movement sideways because there is less strength that way.  Telescopic booms move more than lattice booms because of the greater surface area.  Booms are lowered to the ground in strong winds.  One company doesn’t operate its cranes in winds of 50 km/hr or more.

I also talked with Amjad Memon, a structural engineer with the Nova Scotia Department of Transportation, about the Canadian Highway Bridge Design Code.

References

  1. Wind, construction crane and inadequate cross-bracing caused Edmonton bridge failure: An initial hypothesis.  Posted March 27, 2015
  2. Why, in a recent blog, didn’t I seem to consider foundation failure as a possible cause of the Edmonton bridge failure?  Posted April 3, 2015
  3. Bridge beams that fail are sometimes like balloons filled with water – squeeze them and they pop out somewhere else.  Posted May 20, 2015
  4. Google: Edmonton bridge failure, Groat Road, Buckling, etc. to see photographs of the buckled girders.

 

‘Seeing is disbelieving’ at a meeting of traffic accident investigators

I attended the regular quarterly meeting of CATAIR last Friday – this time at Dartmouth Crossing to enable some field testing, and learned a few things, both encouraging and disturbing.

  1. I felt good learning that there are training and qualifying programs in Canada for traffic accident investigators.
  2. Also, not surprisingly, that school buses have numerous safety features.
  3. I was disturbed learning about the blind spots at the back of a school bus where the driver can`t see.  What he sees isn’t all of what might be there.

CATAIR along with ACTAR are two separate associations of traffic accident investigators.  The one is a forum for investigators to meet and share experiences and ideas.  The other is an accrediting organization for investigators. (Ref. 1)

It`s in order to take an interest in this field of practice considering the number of traffic fatalities in Atlantic Canada in a year, not a few of which result in charges under the law, civil litigation or insurance claims.

Encouraging

I suggested last week that it is important that your traffic accident expert is well trained, experienced and accredited.  That is still true.  ACTAR can perhaps be seen to be the ultimate and most demanding accrediting group.

However, I did learn at the meeting on Friday that there are qualifying programs in Canada that are demanding enough.  They vary across the country but generally require that traffic accident reconstructionists study and train and go through several levels of qualification.

A course for police officers comprises three main levels.  Two levels are done in the area in which the applicant serves and focuses on investigation of the traffic accident.  The third is completed at a Canadian Police College and covers reconstruction of the accident.  I understand that members of the public can take this course for a fee.

It’s important that an investigator reconstruct a traffic accident generally in accordance with the procedures his peers in the area would follow, and to have comparable qualifications.  That is, to measure up to the standard of care existing in his area of Canada at the time. (Refs 2, 3) That standard is certain to include the expectation that you went through a qualifying program of some sort, in view of the fact they do exist.

If charges or a dispute arises from the traffic accident the investigative procedures followed by the investigator may be evaluated by his peers at the report writing stage or the discovery and trial stages, according to the standard of care.

***

I mentioned a few days ago that the meeting on Friday would do the following things, and these got done:

  1. See a demonstration of the latest school bus safety features,
  2. Perform instrumented braking and acceleration tests,
  3. Measure the bus’s turning radius and rear wheel off-tracking, and,
  4. Examine sight lines/views obstructions.

There are school bus safety features too numerous to mention, but the bus driver did a good job briefing us on these.  Proper thing parents would say. These features include:

  • Exacting bus driver training and qualification,
  • Walk around safety checks,
  • Knowing where the bus is at all times,
  • Training students on how to exit the bus in an emergency – including through roof escape hatches,
  • Front windows that pop out in an accident,
  • Doors that can be opened easily both inside and out,
  • Etc.

I was impressed to learn that these very large buses when empty, at a speed of 50 km/hour can be stopped within about 2/3 to 3/4 the length of a bus when the brakes are applied.  Dr. Stu Smith, C. Tyner and Associates, measured these speeds and stopping distances with a braking test computer.  Skid resistance or sliding resistance of the asphalt pavement was also measured by consultants using a drag sled, a test that is very similar to the coefficient of friction test in high school physics.

Disturbing

What disturbed me was the school bus driver’s blind spots at the back.  I sensed from the tone of the bus driver`s voice that these are worrying.  They just can`t see everything at the back of the bus from the driver`s seat regardless the number and size of the rear view mirrors.

I think it’s also going to be interesting to see the results of the rear wheel off-tracking measurements.  The rear wheels are in a different place to the front wheels when a bus is turning.  It`s in order for the bus driver to know where they`re at, a skill acquired by the time the driver gets his licence.  Not so easy dealing with the blind spots.  The wheel tracks were accurately located by RCMP Corporal Michel Lanteigne, Tracadie, NB using total stations land surveying equipment.

***

Why should you take an interest in all of this?  How about 18 traffic fatalities on Prince Edward Island Island last year, and possibly more in Nova Scotia, New Brunswick, and Newfoundland.  And all quite likely got investigated by traffic accident reconstructionists.  Some of these I’m sure resulted in charges and possibly disputes arose and civil litigation begun.

***

Ken Zwicker, the CATAIR regional director, organized a very instructive meeting and kept it “moving right along“ during the day.  Corporal Lanteigne – who travelled the farthest, a 9.5 hour round trip, was everywhere during our field work on Friday, including on Ken`s heels.  Others came from Fredericton, I think Saint John, and from Prince Edward Island.  Several of us travelled all of 20 minutes from Halifax.

References

  1. Is your traffic accident investigator well trained, experienced and “accredited”?. Posted February 23, 2016
  2. Garner, Bryan A., ed., Black`s Law Dictionary, 4th ed. 2011, Thomson Reuters, St. Paul, MN
  3. How the standard of care is determined when a failure or accident occurs in the built environment.  Posted June 28, 2014

 

 

Is your traffic accident investigator well trained, experienced and “accredited”?

There are a couple of associations that can ensure this.  I was impressed by the “science-based” nature of one.  And its support of another that has a well developed and internationally accepted accreditation program for investigators.

You might consider ensuring the expert you retain to investigate a traffic accident belongs to both groups, or your “generalist” forensic engineer retains one who does. (Ref. 1) Same as you would expect your engineering, medical, accounting, architectural, etc. expert to be registered with a recognized association.

CATAIR, the Canadian Association of Technical Accident Investigators and Reconstructionists is a support group of traffic accident investigators.  It was formed to provide a professional and affordable way of meeting and sharing experiences and ideas.

CATAIR was incorporated in B.C. in 1984 and nationally in 1991.  Ken Zwicker, Nova Scotia, current chairman for the Atlantic region, has served on the national executive since the group’s inception.  Membership consists of police officers, former officers, and consultants of various stripes from across Canada, the U.S. and overseas.

I learned about this group when I conferred with a RCMP officer in connection with a slip and fall accident that I was investigating.  He is a member of CATAIR.  Members use some techniques similar to those I do when investigating accidents.

I have a general interest in how different groups investigate technical issues in their work, and how these techniques might be adapted to forensic engineering investigation – science in general, crime, medicine, etc., and now traffic accidents.

The Atlantic region meets quarterly and I started attending as a guest.  The next meeting is this Friday in Dartmouth.  There’s often a technical session and field day during the meeting.  The association investigates test procedures and calibrates testing equipment during these sessions.  Seeing this during my visits revealed the science-based nature of the group.  Just what you want in your experts and their associations.

The meeting on Friday will:

  • See a demonstration of the latest school bus safety features,
  • Perform instrumented braking and acceleration tests,
  • Measure the bus’s turning radius and rear wheel off-tracking, and,
  • Examine sight lines/views obstructions.

The national annual general meeting was held in Dartmouth last fall.  I attended a meet-and-greet and chatted with members from across Canada and the U.S.  These are well experienced traffic accident investigators, and some have gone on to train people on how to prevent accidents.  Examinations were held during the AGM for investigators who wanted to be accredited as meeting a minimum standard.

ACTAR, the Accreditation Commission for Traffic Accident Reconstruction, an international group formed in 1991, promotes recognition of minimum standards for traffic accident reconstruction.  To that end the commission developed a multi-part accreditation examination.  It’s one of the most comprehensive examinations I’ve seen outside of a university engineering program.

Applicants must meet certain standards of education and experience.  They are then required to complete separate theoretical and practical examinations covering more than 10 topics for each.  The topics focus on the math, physics and field testing and evaluation in traffic accident investigation.  The examinations are taken in different levels and you progress through these to become accredited.

ACTAR’s examinations are so comprehensive that a mini industry has developed to prepare applicants to take the exams covering topics like the following:

  • The nature of the examination
  • Exam preparation
  • Practice examinations
  • Test examination

Accredited investigators have successfully completed the examination and are properly trained and experienced in accident reconstruction.  Status in ACTAR is maintained after completing the initial examination by obtaining a minimum number of continuing education units over a five year period.  The continuing education we must all embrace in our professions.

This is not to say that traffic accident investigators who have not done the examination are not qualified.  I know of at least two that certainly are qualified.  What it does do is demonstrate to the public and the justice system that your expert’s qualifications have been “peer reviewed”.  This might be important in some cases.

You can visit these groups at www.catair.net and www.actar.org

Reference

  1. The “generalist” forensic engineer.  Posted February 5, 2016

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

The “generalist“ forensic engineer

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

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

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

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

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

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

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

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

Key attributes of experts:

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

Important additional attributes of experts serving as principal engineers:

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

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

Example #1

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

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

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

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

Example #2

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

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

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

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

The specialists assisting me as the principal investigator were:

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

Example #3

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

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

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

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

Example #4

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

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

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

References

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

Peer review costs can be controlled

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

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

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

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

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

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

  1. Consulting expert
  2. Testifying expert

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

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

  1. Oral report
  2. Written report

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

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

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

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

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

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

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

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

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

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

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

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

***

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

References

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

 

 

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

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

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

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

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

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

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

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

***

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

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

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

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

***

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

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

***

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

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

***

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

References

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

 

The year in review: The Top 10 Business Ethics Stories of 2015

You might be interested in the item “The year in review: The Top 10 Business Ethics Stories of 2015“.  A common theme is questionable business ethics. See following:  http://businessethicsblog.com/2015/12/31/top-10-business-ethics-stories-of-2015/

The list was prepared by Chris MacDonald and Alexei Marcoux, co-editors of Business Ethics Highlights.  www.businessethicshighlights.com

These are not stories about “…minor rule-bending, fiddling along the margins…” to use Dr. MacDonald’s expression but major ethical breaches.  And some well planned like the outright lying by Volkswagen to the regulators and it’s customers.

Chris has been blogging on business ethics for 10 years – since November 2005, at www.businessethicsblog.com.  He’s got an international reputation in this field.  (Ref. 1)

Following are links to Chris’ two most recent blogs:

Dec. 15 http://www.canadianbusiness.com/blogs-and-comment/loblaws-selling-homeopathy-is-junk-science-and-bad-corporate-ethics/

Nov. 24 http://www.canadianbusiness.com/blogs-and-comment/how-design-can-help-companies-make-better-ethical-choices/

Reference

  1. Most influential business ethics blog; Chris MacDonald, Ph.D, Blogger.  I posted this item about Chris on April 4, 2013