I don't know who either side used for expert witness, but if the engineer
was not protected by the allowance of the code to accept a combination of
conventional and engineered solutions the outcome must then be based on the
most personable witness with the ability to influence the Jury. With
technical issues it boils down to one or more of the following:
1. The experts credentials (comparison of education, publications and
investment in their professional affiliations.
2. The ability to communicate to laypersons and be convincing - regardless
of the bias imposed (I'm waiting to hear from any expert witness to defend
that most witnesses are hired to find the interpretation to support the side
paying the bills).
3. Appearance and confidence of the expert as interpreted by the Jury.
I apologize to those engineers who make a living in expert witness work.
Some of those I know and who remain friends are, I believe in my heart,
ethical representatives of the profession. However, more times than not I
have been surprised to find those "well known" engineers who tailor their
deposition to interpretations that neatly fit the premise of the side who
hired them. I have lost respect for these individuals but will give all who
I meet the benefit of the doubt until which time I can prove that they
crossed the line.
Two additional comments:
1. Your comments justify the need to provide fully compliant designs
regardless of how ambiguous the intent of the code is. It's best to comply
until which time it can be changed and publicly be interpreted to be a
professional standard of care. I believe the only way to do this is by
ratification of the code or by publication in Building Standards or by
position statement of the professional committees who were involved in the
creation process of the code.
2. As was pointed out in a previous post by Mark Deardorff,
multi-residential structures (apartments and condo's or any group with a
Home Owners Association) is a prime target of lawyers who will open a case
based on continued explorations for non-compliance or signs of possible
structural damage. Most Home Owners Associations don't understand that they
tend to gain much less than the attorney's and far less than is necessary to
perform any work that they believe will correct a defect - the problems
generally are left unresolved.
3. Insurance companies will impugn the reputation of a responsible
engineering firm rather than defend them. The cost of litigation is, more
times than not, more expensive than a settlement. No legal disclaimer of
guilt is valid when the engineer is perceived to settle a claim. The
layperson will, in most cases, interpret the number of suits and the number
of settlements against this firm as evidence of the quality of the work they
produce. I suspect that if the firm you wrote of went to litigation, the
engineer bared the cost of defense or had some very strong case to convince
their insurer of their innocence. This is probably the exception rather than
4. Contingency litigation is the key to pursuing cases against engineers. If
contingency litigation was not allowed, more legal firms would be looking at
the facts instead of the glare coming from the pot of gold.
Dennis S. Wish, PE