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RE: UBC Commentary

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At 01:27 PM 12/20/99 -0700, you wrote:
>You might want to consider the 1999 U.S. Supreme Court decision in 
>Kumho Tire Co. v. Carmichael (which is discussed in some detail in 
>an article by Paul M. Lurie, Esq., Fall 1999 issue of "Structure", 
>pp. 39, 40).
>The court can exclude the opinion of an "expert" based on "1) whether 
>the expert's theory or technique can be tested; 2) whether the 
>expert's theory or technique has been published and reviewed by 
>peers; 3) whether the expert's theory or technique is susceptible to 
>errors and whether certain operating standards control the theory or 
>technique; and 4) whether the expert's theory or technique is 
>generally accepted by a relevant peer group."  "Kumho further directs 
>courts to be 'flexible' in using their discretion to test rigorously 
>each expert opinion for reliability."
Thanks, Mike.

I did read that article when it appeared, and with great interest. It deals
with how to contest a prospective witness's qualifications and basis of
opinion, once one gets into the courtroom. The Komho decision does appear
useful in court, but only of indirect benefit before then in maybe
discouraging way-out opinions that rely too heavily on the witness's
credentials for credibility, and not enough on "well-accepted principles of
mechanics" or on harmonizing all of the laws and code provisions that pertain. 

My points were that "expert" mischief goes undeterred because the matter is
unlikely to get to court, and there is no fear on the witness's part of any
repercussions if his version does go to court and gets disallowed or
effectively rebutted.  Most cases of concern to we design engineers are not
in big-bucks territory where a court proceeding is welcomed as a
cost-effective remedy to a meritless claim against us.

There was a California Appellate decision of Mar 3,1997, that appears to
scale back the circumstances in which an engineer's opinion is privileged
from liability. It established a cut-off of the privilege under Civil Code
Sec 47(b) available to a consultant's or expert's communications regarding
matters that only maybe might go to litigation, but where no "good faith"
moves to litigate have yet occurred.  The case was repair of thick house
slab foundations in Foster City, California, "Gordon Edwards et al v. Centex
Real Estate et al". Several SEAOC members/firms were involved. I don't have
the Cal App citation for it or know if it still stands, as it might have
been further appealed or superseded. Any readers know?

In a related matter, the Calif PE Board's just-out Fall 1999 Bulletin, on
page 9, says that if a licensee converts one's license to the new (and
wholly useless) "retired status", that licensee "will not be able to offer
any consulting services nor offer any professional decisions while acting as
an expert witness in court."  What a whopper.

I attended the PE Board's meeting on Feb 19, 1998, where the question was
discussed at length whether a non- Cal PE could render professional
engineering opinions in court as an expert. I read the Board attorney's
discussion in the agenda package ahead of time, and he hadn't consulted
Civil Code sec.47 at all, nor the many appellate decisions that expand it.
Staff knew nothing. The Board atty couldn't help, and finally admitted "he
knows nothing of engineering practice except what he reads in the PE Act".
No Board member knew anything except public member Lazarian, an atty and
contractor, and he said nothing to support the notion that one must hold a
PE license to testify on PE matters or advise an attorney in PE matters in
advance of testifying. Statues elsewhere give the court sole discretion over
who is an expert; licensing is not part of it. How quick the Board ignores
inconvenient realities.

(The idea that a retired SE cannot say he is a retired SE, unless having
paid a fee for a "retired" SE License, is quite a hoot... Like not being
able to say you're a retired driver after giving up your driver's license in
old age. I wonder what protection the public gets because a retired PE has
paid a fee to "legally" tell the truth about himself.)   

Charles O. Greenlaw SE   Sacramento CA