I was retained to investigate the cause of an accident involving the plaintiff using one of his tools. People have been killed using this type of tool, it’s that dangerous. The plaintiff believed there was a defect in the tool. Graphic photographs of his injuries would certainly lead you to believe that - an initial hypothesis.
I was asked to peer review a report by another engineer and to examine the tool for wear sufficient to cause the accident.
The other engineer reported test-using the tool but, as evident in his report, not during a re-enactment of the accident. He found a few things wrong with the tool but nothing to suggest it was defective.
I was surprised that the engineer did not re-enact the accident considering his stated years of experience investigating accidents.
I reviewed the report, researched howhis the tool operated and examined the exterior.
I video taped the plaintiff re-enacting the accident and recorded his explanation of how he was injured. I had him do this three times just to be sure and video taped his demonstration from different angles.
Evidence from the video and the interview was quite revealing as to cause but questions arose when this evidence was considered in light of evidence from the graphic pictures of the plaintiff’s injuries.
I retained a tool repairman to dismantle the tool and visually examine the interior surfaces for wear and defects. He found nothing.
At this point in my investigation:
- The nature of the injuries depicted in the pictures suggested one cause
- The re-enactment suggested a different cause
- The tool operated properly according to the repairman, supporting the different cause
The tie-breaker – justifying modifying the initial hypothesis on cause - were comments by the plaintiff during his interview on how he was using the tool coupled with how the tool operated. Turns out he was using the tool in the most dangerous way, but one of several ways it could be used. Also turns out that the material he said he was using didn’t exist as he described, except as a special order. A similar, readily available material suited to the job he was doing could explain the contradiction raised by the graphic pictures.
To summarize the tie-breaking bullets:
- The plaintiff said that he was using the tool in the most dangerous way, supporting the different cause noted above
- The material he probably was using could explain a contradiction in the graphic injury pictures, also supporting the different cause
Based on the evidence, I modified my initial hypothesis that a defect caused the accident to believing that the plaintiff caused the accident by his actions when using the tool in the most dangerous way.
A spoiler? As noted above, the plaintiff reported using the tool in the most dangerous way. But, on being retained, I was given the tool rigged to be used in one of the safest ways. This might have spoiled my modified hypothesis, but didn’t - the tool had passed through at least four sets of hands by the time I got it.
My client decided against further forensic investigation.
Design, manufacture/construction and maintenance/repair are three main stages in development and use of an item in the built environment, like a tool. My investigation covered maintenance/repair when assessing if the tool in this incident was defective.
Retaining experts in design and manufacture to examine the tool would be a stage in a forensic investigation like this. However, taking this step would not be justified considering the strength of the modified hypothesis and the cost of experts in design and manufacture.
My investigation several years after the incident cost money. It would have cost less, as would the civil litigation in general, if I could have interviewed the plaintiff several days after the incident, or after my client took the case, and video taped him re-enacting the accident. I’m certain the evidence from such simple tasks would have cast the merit of the case and the worth of the file in a quite different light.
My take-away from this case is to get my iPhone out of my back pocket and video tape a re-enactment of an accident ASAP and have the victim describe it. It might be rough – iPhone forensic video - but this quick and dirty stuff can pay dividends in a forensic engineering investigation.
My client’s take-away? Possibly an old saw – retain an expert early preferably during the merit assessment stage or a few days afterwards and save money on civil litigation.