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RE: Statute of Limitations

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Jim,
I actually find it easier to maintain electronic records. I've been in
private practice for 13 years and have done drawings and calculations in
various spreadsheets, Mathcad, Enercalc, Risa and Autocad in all of these
years. I can retrieve most anything for the last seven years at least - but
this gets me very nervous. If I knew that my records were private and that I
could access them to help past clients remodel or make appropriate decisions
in the future (roof material changes, removal and replacement of shearwalls
etc) I would not have the slightest hesitation to use my archives. However,
with the abuse of the litigation system the ability to save these files has
me as nervous as architect who wish to maintain records of all jobs
including my structural sheets and calculations.
Although I know that each of these projects represents the best work I can
do, I have no doubt in my mind that another engineer hired to review the
work will find some flaw which an attorney can use to probe deeper and
debate the unresolved code issues in front of a jury.

As I mentioned in past threads, I've been included and dropped from three
suits as a cross-complainant. In each case I was not insured and quickly
released from the suit while the other innocent parties who just happened to
be involved in the design process, ended up paying thousands to share the
cost of either construction defects OR in one case, the mistake made by a
well known testing agency whose error resulted in a retrofit design and
commencement of construction on the basis of a pachometer study which
indicated the building to be Unreinforced. The agency admitted guilt as they
used both a novice technician and never checked the batteries or power
supply of the equipment. Still, the power of the cross-complaint - the
contractor and architect were pressured to participate in the pre-trial
settlement or spend thousands to prove their innocence in litigation. Worse
yet, an engineering expert witness gave the opinion that the engineer of
record (myself) should have questioned the test results or created my own
penetrations into the walls to verify the absence of steel above and beyond
the test reports.

Not only was I uninsured, which I believe was the reason I was finally
dropped from the suit, but I attempted to represent myself and wrote letters
to the testing agency, the and attorney's threatening to take the case
public and make the engineering community aware of the facts only. This was
enough to show who was to blame. Of course this would probably have opened
me up to further slanderous litigation, but I was angry and I was unwavering
in my conviction that the testing agency was totally to blame. Attorneys do
not want participants who are absolutely sure of their innocence and who
make credible witnesses for themselves. I was dropped from the case while
the others paid out of pocket their deductible and more from their carriers
to avoid litigation.

We all know that there is a flagrant abuse of the legal system and that
insurance industry company's are pressured to settle cases to avoid much
higher litigation expense. As long as there are unresolved, debatable
engineering issues that can be debated in court, the legal system will
continue to use these issues to force an insurance carrier to make a
decision between two evils - the economics of settling frivolous accusations
against the cost of litigating in court -  suits will continue and engineers
will be unprotected as long as their work is available for scrutiny.

Allowing our records to be scrutinized at a time when the assumptions of
code intent made by the engineers judgment can be open to debate perpetuates
the problem. Attorneys know the magic number - some percentage of total
litigation cost that is easier to swallow than fight. The EOR is compromised
and promised settlement without admission of guilt, but as human beings we
rationalize accusations with possible guilt and settlements with admissions
of guilt.

Until their is adequate reform of the legal system, more effort by
professional associations to protect their members from litigation, stricter
penalties for expert witnesses who demonstrate unethical bias to those who
pay them, and thorough consideration by those policy makers who create code
rhetoric, I would strongly recommend that engineers establish policy to
delete records at the completion of the project and seek alternatives to
liability insurance such as stricter clauses that limit ultimate decisions
of extent of liability.

On a final note, I know of a very well known engineer who has been
practicing for probably over forty years and, as far as I know, has never
been involved in a law suit. His philosophy was simple - and I've used this
for some 13 years now with success. 1) Provide the best work you can. 2) If
a problem occurs, resolve it responsibly and without taking the defensive.
More than likely you will satisfy your client and most likely save your
relationship.

My wife is a nurse. She worked with a doctor who had a habit of taking as
many patients as he could cram into his schedule in one day so as to
maximize his profit. This led to carelessness and ultimately one of his
patients died as a result of a Phenol injection that literally ate through
the patients flesh and attacked and poisoned him. However, the doctor blamed
it on his age and the fact that he was seeking his services in a pain
control clinic for his chronic ailment. He paid condolence to the family,
wrote warm, caring letters to the surviving spouse, attended the funeral and
called the man's wife for months after the patients death to see how she was
coping. The spouse was enamored that the doctor would take such personal
attention to his patients and their family and never questioned his true
motives. This doctor still practices today, has lost more patients and is
tolerated by the hospital he is associated for the consistently highest
income generated by one doctor. Responsibility and ultimate liability are no
longer the issue as long as his patients remained loyal to this "obviously
caring doctor".

Dennis Wish PE


P.S. Disclosure of the doctors actions would have been grounds for the
hospital to terminate my wife and file grievance with the licensing board to
try and revoke her license. Funny how the professions are similar.