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Re: Code created Malpractice opportunity

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> I won't answer as to who signed the Certificate of Merit since he was an 
> engineer who I respected tremendously and have become disapointed in. I can 
> say that I have been asked to do expert witness work which has never been 
> litigated - always either settled out of court or dropped based upon my 
> recommendations. The problem is that professional expert witnesses rely upon 
> continued work from attorneys and therefore can't help but become biased to 
> whomever pays the bills. 

Actually it appears that you approach the job of being an expert correctly, which
is to educate the attorney about the merits of the case. The last thing I want is an
expert telling me what he or she thinks I want to hear only to have the opposing
expert demolish the case. Even at trial, the best experts act as educators and
leave the advocacy to the attorneys.

> I know that there are many who don't agree and there are witnesses who claim 
> that they must disclose everything they know or suspect because they would 
> either become liable if a fact is missed or will not be called upon to 
> provide these services for the same attorney's. 
Clearly going over what you have discovered and what you might 
suspect is part of the process of educating the attorney.
> In my case, I was an employee of the company. I was not specifically named in 
> the suit - probably because I do not carry my own coverage and there was 
> little for them to collect. Still, I was asked by the attorney for the 
> company I worked for to review the oppositions deposition and in the end I 
> was paid for my services. 

Like I said, your function was one of being an educator.

> The expert witness drew from facts that were not available at the time the 
> design was completed. He based his conclusions on revisions to the original 
> methodology that occured after the code was adopted. The code was the City of 
> Los Angeles RGA 1-91. At the time we designed the retrofit on the building, 
> the RGA methodology was not adopted and was only approved for use on a per 
> project bases which required approval by the building official. At the time, 
> the methodology was being debated in the Hazardous Building committee of 
> SEAOSC which this expert witness was a prominent member. He believed that any 
> engineer who attempted to do this work should have attended the meetings and 
> kept on top of every discussion that was being debated on the issues. I 
> happened to be active on the committee at the same time, but of the 20 or so 
> engineers that attended these meetings there were hundreds that worked purely 
> from the drafts and interpreted the criteria as the documentation stated - 
> sometimes incorrectly. 

This is a issue of what is the standard of care, rather than the causation question
we started with, but that is ok.

> My point is that you can't hang an engineer on suppositions or on criteria 
> that has not been approved by the community and published. This did not occur 
> until two to four years after this building was designed.
> Our arguments were valid, the other engineer used the final published code 
> which changed slightly to try and bury us.  I believe that this was 
> unethical. 

I would disagree on unethical, but it does demonstrate bias.

> He produced reports and documentation to support his case 
> had not been available or even published at the time the work was done. The 
> information in these reports were not even being discussed at the time the 
> work was done and did not come into play until the RGA had been published the 
> committee was working on the UCBC.

Sounds like it would have be a fun case to defend, especially when cross examining
this expert on the basis of his purported knowledge of prevailing practices at the time
of the design and how the allege error caused the building to fail.

> Sorry to dwell. My point is that their expert witness, who I admired for many 
> years, in my opinion stepped over the line. Very simply, he would have tried 
> to use the excuse such as "members of seismology committee were debating the 
> idea of rigid plywood diaphragms in 1991 and therefore the engineer who 
> designed this building should have been aware of these discussions and 
> considered them in his design". 

While I would agree that an engineer should be aware of the discussions about
various design questions, the same as lawyers are required to be aware of trends
in the law, the debate does not set the standard of care, the ultimate consensus
> I've used some liberties here so it is a bit distorted. However, his actions 
> were not ethical, yet would have cost thousands to rebuke in court.

That's OK, as I view the purpose of the discussion to be educational rather than
an effort to decide a particular case.

> As to your comments, the Insurance industry makes these types of decisions 
> which hurt the name and reputation of an engineer all to often. I don't blame 
> anyone who is in business to make a buck, but not at the expense of anothers 
> professional reputation - which is, more often than not the case. Engineers 
> are constantly being preyed upon by preditors and there is something equally 
> wrong in the abuse that goes on in that industry as well. 

Think of it this way, it makes no sense to prey upon the have nots. Thus, the
perception is that engineers are among the well to do. Now if perception only
matched reality.

> Who knows, once we get past these code issues maybe we can start to take on 
> the litigation industry:>)
> Dennis