Peer reviewing an expert’s report ensures the justice system gets what it needs

That is, thorough forensic investigations and reliable, objective expert reports.

Civil procedure rules governing expert’s reports are strict. (Ref. 1, 2)  You can’t have a good report without a thorough investigation.  Peer reviewing an expert’s report ensures a thorough investigation.

Peer review is needed but isn’t being provided.  I’ve read four poorly written expert reports in recent years based on inadequate investigation and reasoning.  Really, very little investigation in most cases and no reasoning in all cases.  I’m sure there are others out there.

Peer review is needed in forensic engineering every bit as much as in scientific research.  Research papers are published in reputable journals only after they are peer reviewed.

Peer review is provided for in the remediation of petroleum contaminated sites.  The provincial governments in Atlantic Canada reserve the right to peer review a report on the remediation of a contaminated site according to the Atlantic risk based corrective action process (RBCA). (Ref. 3)

There’s no question the standard of care for expert reports must be as high as that for research papers and reports on remediated sites.

I published an item on peer review in the past (Ref. 4) but was reminded of it when I was reviewing a recent handbook on expert work. (Ref. 5)  Also when I was reviewing the RBCA process recently.  Peer review is referenced 38 times in the index of the 626 page handbook.  The authors discuss peer review on dozens of pages.  Their guidance in this text – and previous handbooks on report writing (Ref. 6, 7), is based on review of 100s of civil cases.

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In science, peer review is the process by which an author’s work is checked by a group of experts in the same field – his peers, people of similar qualifications, experience, and competence.  They make sure it meets the necessary standards before it is accepted and published. (Ref. 8)  It constitutes a form of self-regulation by qualified members of a profession within the relevant field (Ref. 9).

Put another way (Ref. 10), peer review is specifically geared to (my parenthetic additions):

  • Catch any potential biases of the primary examiner (the forensic engineer),
  • Promote the examiner’s heightened diligence (promote thorough forensic investigation)
  • Pursue each important clue (follow the evidence), and,
  • Recognize the clinical significance as it surfaces (objectively recognize and accept the findings).

Peer review has been practised a long time in science and is essential to obtaining good science.  Forensic engineering must receive the same rigid peer review before going to the justice system to further ensure the system gets what it needs.

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It would be easy to include a simple form of the peer review process in the investigation of a failure or accident in the built environment.  As easy as Counsel getting an independent consulting professional engineer to review the investigation and report of the investigating engineer.  To check that the investigation was carried out to the standard of care existing at the time and that the report meets the requirements of rules governing expert reports.  From that simple start, gradually move to a more comprehensive process over time.

Professional engineering societies have similar guidelines for those practicing in the forensic geotechnical, foundation, and structural engineering fields (Ref. 11 to 14).

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The adoption of the peer review process will be driven in part by the increased emphasis on preparation of a report for the justice system - and less emphasis on discovery and trial, as a result of civil procedure rules such as Rule 55 in Nova Scotia.

The rule spells out the requirements of the expert.  They are exacting in requiring that the expert is thorough, reliable, and objective, and reports his evidence and reasoning, and also states what other conclusions might have been drawn from his evidence. (Ref. 1, 2)

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Better that Counsel arrange to have his expert`s report and investigation peer reviewed and catch any deficiencies that might be present, than an expert for an opposing party do this.

References

  1. Counsel, tell your expert about the Rule governing expert opinion. It’s important. Published September 11, 2015 at www.ericjorden.com/blog
  2. Nova Scotia Civil Procedure Rule 55, sub-section 55.04
  3. Atlantic Risk Based Corrective Action process (RBCA), 2015
  4. Peer review in forensic engineering and civil litigation.  Published November 26, 2013
  5. Mangraviti, Jr., James J., Babitsky, Steven, and Donovan, Nadine Nasser, How to Be a Successful Expert Witness: SEAK’s A-Z Guide to Expert Witnessing, SEAK, Inc, Falmouth, MA 2015
  6. Mangraviti, Jr., James J., Babitsky, Steven, and Donovan, Nadine Nasser, How to Write an Expert Witness Report, SEAK, Inc, Falmouth, MA 2014
  7. Babitsky, Steven and Mangraviti, Jr., James J., Writing and Defending Your Expert Report: The Step-by-Step Guide with Models, SEAK, Inc., Falmouth, MA 2002
  8. Merriam-Webster Dictionary, 2016
  9. Wikipedia, Google
  10. The Forensic Panel, Google
  11. Lewis, Gary L. ed., Guidelines for Forensic Engineering Practice, ASCE, the Association of Civil Engineers, Virginia, 2003
  12. ASCE, Guidelines for Failure Investigation, Virginia, 1989
  13. Ratay, Robert T., Forensic Structural Engineering Handbook, McGraw Hill, New York, 2000
  14. ASFE, Association of Soil and Foundation Engineers, A Guide to Forensic Engineering and Service as an Expert Witness, 1985
  15. Merriam-Webster Dictionary, 2013
  16. Wikipedia, Google

 

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