Building a Better Case

Tips for engineers on how to be a more effective expert witness in construction industry disputes

• By John P. Bachner
• Mar 01, 2006

Expert witnesses perform an extremely important role in our legal system, serving the cause of justice by explaining to a trier of fact -- a judge or jury -- technical issues that lay people could not be expected to understand. Opposing experts' opinions about the cause of something seldom agree, however, leaving it up to the trier of fact to determine which expert's opinion is valid.

That experts disagree is understandable: Attorneys aren't about to retain experts whose testimony would undermine their clients' version of events. But experts are not supposed to be advocates, adjusting their "beliefs" to whatever's required to support one theory or another. They are supposed to testify only to what they honestly believe. And precisely to encourage such testimony, courts have made expert witnesses just about bulletproof: They cannot be sued for what they say, no matter how biased their opinions and no matter how much damage they cause. Regrettably, some experts use that shield, not so they feel comfortable saying under oath what they honestly believe, but rather so they feel comfortable saying under oath what their clients want to hear.

Compare the role of expert witnesses to that of fact witnesses: Fact witnesses are seldom allowed to express their opinions about anything, and if they intentionally adjust their recollection of the facts, they can be pursued for perjury. Experts serve expressly to offer their opinions, and their opinions stand as facts. Experts who abuse that trust -- "hired guns" -- are a blight on their profession, especially when they use their position to destroy a peer's reputation in order to earn a fee, or exact revenge, or stroke their egos.

Expert witnesses testify about a peer's performance when it's alleged that the professional has been negligent; i.e., failed to uphold the standard of care and, as a consequence, committed an error or omission that damaged or injured the client or a third party. Determining whether or not a design professional has breached the standard of care can be a complex undertaking.

According to Justin Sweet, a law professor at the University of California at Berkeley, and author of the book, Legal Aspects of Architecture, Engineering and the Construction Process: "Claims based on design services as a rule will require expert testimony. Choices that involve excavation design, foundation sufficiency, structural stability, equipment and components, protection against the elements, energy efficiency, and surface water disposal are all matters that require expert testimony. Often, they are technical areas for which the prime design professional will retain consultants. Whether such services are performed in-house or by outside consultants, they require decisions that should be made by professionals with specialized education and experience. Often these services must be performed only by persons registered by the state, though this is not determinative."

The standard of care comprises the procedures similar professionals in the same area ordinarily followed in performing similar services under similar conditions. The standard of care changes with time. If it didn't, all similar professionals would be required to do the same thing the same way, making innovation -- and progress -- just about impossible. Nevertheless, even the most innovative approaches tend to embrace certain fundamentals that most peer professionals subscribe to. If you, as a professional, did not apply these fundamentals, and if that failure resulted in your client or a third party being injured or damaged, you would have been negligent.

So who determines the standard of care? If you were to say "the practitioners themselves" or "the experts," you'd be wrong. The standard of care is determined by the trier of fact, which, more often than not, is a jury, unless it's a bench trial, which has no jury; in this case, the judge is the trier of fact. However, in injury trials, triers of fact are seldom permitted to make standard-of-care decisions on their own. The courts almost always require them to have the assistance of an expert.

You would be amazed -- or sickened -- by what some experts are willing to attest to.

In one case, several years ago, a developer retained a civil engineer to design a storm drainage system for a small housing development in East Tennessee. Not long after site excavation began, one of the excavation contractor's employees was killed in a trench cave-in. The worker's widow consulted an attorney who explained that the contractor, although obviously at fault, was protected by workers' compensation insurance: The contractor was not required to pay anything in addition to what the insurance paid. Other parties could be found liable -- and therefore required to pay damages -- only if it could be shown they owed the worker a duty of care, but breached that duty and thereby contributed to the individual's death. The developer was unassailable, the lawyer no doubt explained, because it had given constructive control of the site to the contractor. And as for the civil engineer? "Well," we can imagine the lawyer saying, "let me make a call. I know a really good expert."

According to what I was told by the civil engineer's expert, the other side's expert was a retired civil-engineering professor who had been recognized as an expert in more than 50 consecutive cases. (A court must recognize an individual as an expert in order for the person to provide expert testimony. It's somewhat rare for one side to challenge the competence of the other side's expert, but it does happen. It's rarer still for a court to disqualify a person from offering expert testimony, but that happens, too.) "Does the civil engineer have any liability?" the plaintiff's attorney had to have asked the retired professor. "He does now" would have been an apt response. Because, according to the esteemed professor's testimony, the standard of care in effect at the time required all civil engineers to learn when a project would go to construction, so they could be on site to provide construction site safety oversight, whether or not their contract called for them to provide that service and whether or not they were paid to provide it.

I can only imagine what the civil engineer must have thought as he read the complaint against him. As absurd as it may have been, however, the engineer and his professional liability insurance (PLI) company had to mount a defense. Fortunately, the lawyer selected by the PLI company retained my friend, a top-flight engineer with extensive experience in the area. Did he disagree with the professor? Of course he did. And because the court treats the opinions of experts as facts, conflicting expert opinions have the same impact as conflicting facts. And when the facts are in dispute; when one side's version of events disagrees with the other's, it becomes necessary to "try the facts," i.e., to have a trial where the verdict is reached by the trier of fact. And making a trial necessary may be the "hired-gun" expert's most significant contribution to the client, because of the leverage it creates: Trials are expensive. Any number of design professionals would rather settle a worthless claim for $50,000 than spend $150,000 proving they should not have been sued to begin with -- especially because they might not prove it.

In this case, it's likely that the PLI company would have recommended that the civil engineer settle, given the cost of a trial and given the sympathy that a jury would have had for the widow. But that's not what happened, because the engineer's expert was aware of a document you need to be familiar with, too: Recommended Practices for Design Professionals Engaged as Experts in the Resolution of Construction Industry Disputes. Conceived by a multi-association "umbrella group" called the Interprofessional Council on Environmental Design (ICED), Recommended Practices... has been endorsed by 35 organizations, including the American Association of Engineering Societies (AAES), American Society of Civil Engineers (ASCE), National Society of Professional Engineers (NSPE), American Society of Mechanical Engineers (ASME), American Institute of Architects (AIA), and the American Council of Engineering Companies (ACEC). In fact, Recommended Practices... has been endorsed by more professional engineering societies and kindred organizations than any other such document. While design professional experts are not obligated to follow the document's 13 recommendations, alternative approaches could prove perilous. Which is exactly what happened in the Tennessee case, I was told.

One of the 13 recommendations -- number seven -- recommends that experts know something about the standard of care before testifying about it. The recommendation, and the commentary that clarifies it, are as follows:

7. The expert witness should testify about professional standards of care only with knowledge of those standards which prevailed at the time in question, based upon reasonable inquiry.

COMMENTARY
When a design professional is accused of negligence, the trier of fact must determine whether or not the professional breached the applicable standard of care. A determination of the standard of care prevailing at the time in question may be made through investigation, such as the review of reports, records, or opinions of other professionals performing the same or similar services at the time in question. Expert witnesses should identify standards of care independent of their own preferences and should not apply present standards to past events.

Doesn't that sound like common sense to you? It is. Nevertheless, engineers who serve as experts are not legally or ethically required to perform any research in order to render an opinion about the standard of care in effect at the time of the event that gave rise to the legal action. Of course, if one expert has performed research (as the 35 organizations say the expert should have), and the other expert has not, the one who has not would likely find it difficult to establish credibility with the trier of fact.

In this case, my friend told me, he retained a professional polling organization to interview civil engineers throughout East Tennessee. Not one had ever offered to provide site safety services for a contractor, making the professor's opinion highly suspect. But the professor was not deterred. He looked like an expert; he talked like an expert; and he had a long list of credentials. Most important, his client had the sympathy of a jury that would welcome an excuse to ease the widow's pain.

The widow's attorney asked all the right questions, the civil engineer's expert reported, allowing the professor to shake his head wearily in describing how the civil engineer, in failing to abide by the standard of care, violated every precept of professionalism.

But the engineer's lawyer had a turn, too. As related to me by my friend, here's what happened:

The attorney showed the professor a copy of Recommended Practices.... "Are you familiar with it?" he asked the professor. "No," was the expert's response.

"Are you familiar with the organizations that have endorsed the document?" the attorney asked. "Yes," the professor replied.

"Could you please read Recommendation Seven aloud," the engineer's attorney requested, and the professor obliged. "And just how did you determine the standard of care?" the attorney asked. "What type of research did you do?"

"I performed no research," the expert said.

"But these 35 organizations, representing hundreds of thousands of engineers, all say you should have. Why didn't you?"

"Because I didn't have to."

"Why not?"

"Because I'm an expert and I know what the standard of care is. It's the same everywhere." At which point the judge interrupted. He asked to see the document, then queried the expert himself. It went something like this: "Do you mean to tell me that you're testifying about the standard of care here in East Tennessee without having done even one lick of research to determine what engineers were actually doing?"

"Yes, your honor."

"And you're saying that civil engineers all over the country do it only one way?"

"Yes, your honor. That is my testimony."

"How can you be so sure?"

"Because I'm an expert."

And, with that, the judge revoked the expert's recognition and the widow lost her case. She appealed, I was told, saying the judge was wrong, and she was glad to accept the small sum offered to induce a settlement. Yes: What befell her was genuinely tragic, but the civil engineer had nothing to do with it and should not have been made to undergo even what he already had.

Now, imagine what would have happened if the civil engineer's expert was unaware of Recommended Practices for Design Professionals Engaged as Experts in the Resolution of Construction Industry Disputes. Almost certainly, the decision would have been put in the hands of the jury, and the jury would have played Robin Hood. While the widow would have been helped, society would have been harmed. The integrity of our civil justice system is too important -- and too fragile -- to be so abused. Unfortunately, though, it's abused just that way every day, because Recommended Practices for Design Professionals Engaged as Experts in the Resolution of Construction Industry Disputes is not as well-known as it should be. In fact, it is the only defense known against hired gun experts because it sets out the right way of performing expert services. And it works for more than just engineering defendants. Those serving as experts also need to be familiar with it and follow its recommendations, because failure to do so could mean losing the case.

Resources

• Legal Aspects of Architecture, Engineering and the Construction Process, by Justin Sweet, Esq. West Publishing Co, 1994.
• The American Bar Association's Forum on the Construction Industry -- www.abanet.org/forums/construction/home.html .
• Expert Witness Preparation: Learning New Strategies of Communication, by Martin Q. Peterson and Jill Peterson Holmquist.
• The Engineer as Expert, by Werner H. Gumpertz, PE.

This article originally appeared in the 03/01/2006 issue of Environmental Protection.