Update: How I was tyrannized by the obvious during an engineering investigation

Who would have known that condensation was the real cause of the flooding in a furnace room – or so it seems now.  But don’t hold your breath at the rate this saga is unfolding.  Also note that forensic investigations can go off the rails like this too.

I blogged earlier (see below) on how I investigated the cause of flood water on a furnace room floor in a vet clinic and how I concluded it was obviously due to a high water table beneath the building.  Also how I was told later that it was really due to a burst water pipe in the washroom adjacent the furnace room after staff went there and saw water on the washroom floor.

The story could have ended there with me learning a valuable lesson, that if it seems obvious keep on investigating.  But it didn’t; my lesson continued a few days later.

Vet clinic staff called a plumber about the ‘burst pipe’, he came and investigated, saw the water on the washroom floor, looked for a burst pipe but found none.  He then looked in the washroom on the floor above.  Still no burst pipe but he did find water on the surface of the cold water pipes in the washroom.  The water was dripping on the floor and in turn on the washroom floor below next to the furnace room.

Water vapor in the moist washroom air had condensed on the cold water pipes.  This would be the same as vapor condensing on the inside of a window in the winter and water running down the window.  We’ve all seen that I’m sure.

So, the flood water in the furnace room was caused by condensation on cold water pipes, not by a burst pipe and not by a high water table.

To take inspiration from a quote by Hunter S. Thompson, “Wow! What a lesson!”. (Ref. 1)  I’ll keep you posted in the event there are more chapters in the saga.

You might ask, what’s this got to do with forensic engineering investigation?  It’s a reminder, that if being thorough in the investigation of water on a floor in a small room in an old building is important, it’s light years more important for the simplest of forensic investigations.

Reference

  1. Thompson, Hunter S., “Life is not a journey to the grave with the intention to arrive safely in a pretty and well preserved body: but rather to skid in broadside, thoroughly used up, totally worn out, and loudly proclaiming “Wow! What a ride!”. (As cited recently at the celebration of a friend’s life)

***

Earlier Blog: How I was tyrannized by the obvious during an engineering investigation

It can happen to any of us, and it finally did to me.  I was tyrannized by the obvious when investigating the cause of flooding in a large, three story building.

A building renovator called me after water was seen on the furnace room floor by staff of a veterinary practice.  They had gone to the room where materials were stored and saw a few millimetres of water on the floor.  Not a lot but still.

The renovator said the building, which was erected in the 1960s, was on a concrete, ground-floor slab, on low land and near a lake.  The furnace room was enclosed by concrete block walls.  The flood water had pooled on the slab.  He estimated that the concrete floor slab was about five feet above the nearby lake surface.

When i went to examine the site I saw that the five feet was about right and that the furnace room was an estimated 50 feet from the lake shore.  I was also told that the lake level was higher than normal due to a lot of rain this spring.

The grounds around the building sloped down slightly to the lake shore.  The front and right side of the building were paved.  There was a lawn at the back and an old paved boat ramp on the left.  The surface of the boat ramp was bumpy after many years.

The corners of the furnace room were still wet where the concrete block walls rested on the concrete floor.

I had a good look around then walked across the floors of the different rooms in the practice.  They were a little uneven which wasn’t so unusual for an old building.  But my look around wasn’t as good as it might have been and I neglected to look in the small room adjacent the furnace room.

My examination complete I met with the owner and the renovator.  I noted how the water rises in a lake during frequent rain storms.  It also rises in dug wells.  The water in a well is the water table. The surface of the water table in the ground near a lake shore is usually higher than the lake.  There is also water in the soil above the water table due to capillary action – this is when water rises in the small voids in the soil above the water table (Check high school physics)

This higher water table plus some surface water runoff across the asphalt at the side of the building could explain the presence of the water in the furnace room.  It was obvious.  I mean, the building was so close to the lake with high water levels not seen in recent years and the furnace room floor was near the lake surface and the water table.

The irregular boat ramp was typical of frost heave due to water in the ground – a high water table and capillary action during wet springs over the years – and would back up this obvious conclusion further.

I talked about different ways of preventing water getting into the furnace room.  These included the obvious – terrible word – better perimeter footing drains and/or a sump pump.in the furnace room.  A sump pump is a pump in a depression or hole in the ground – a sump.

The sump pump was decided on as the least expensive and one that could be constructed several feet below the water table to draw it down below the furnace floor.  That decision was left with the building renovator.

I left the site after about an hour – an efficient examination and consultation, or a  hurried one?

A few hours later the renovator called to explain that a staff member had gone in the wash room – the one room I hadn’t gone in – adjacent the furnace room and found a burst water pipe, the real cause of the flood in the furnace room.

I was tyrannized by the obvious and guilty of expectation bias.  The moral of the story?  If it’s obvious, keep on truckin’ and do more investigation.

So, who knew the St. John River would flood like that?

I thought of the news reports on a Friday or Saturday that predicted the Saint John River flood would peak the following Tuesday.  And that happened as predicted.  But I was surprised that the record-breaking nature of the flooding was not also predicted – a week, 10 days or two weeks beforehand.  I can’t help but think that somebody knew or should have.

I’m certain there are well-developed and accurate models of flow in the St. John River and of contributing factors in the river’s watershed including snow cover and weather.  These would be hydrologic and meteorologic models developed from empirical data collected in the watershed over many generations if not centuries.  We have models in forensic engineering investigation that serve us well too.

Sounds technical but hydrology is simply the study of the flow of water in a watershed and meteorology is the study of weather.  Put them together and you’ve got a powerful tool for predicting if a river is going to flood, when this will happen and how high.

A model is simply a set of ideas and numbers that describe the past, present or future of something such as an economy, business or, flow in a river.  Models are built using measurements and observations – empirical data – of the things that characterize what you’re interested in.

A street map is a model.  It shows the location of streets and other features of interest in an area.  Things like businesses, buildings, the local coffee shop, etc.  It doesn’t show things you’re not interested in like the height of the buildings and the level of the streets.

Good and accurate models:

  • Fit the empirical data from which they’re built
  • Explain past observations – like why the river flooded in the past
  • Predict future observations – like when the river will flood again
  • Are simple and inexpensive to use

Exhaustive data collection and study of flow in the River would have been done for design and construction of the Mactaquac Dam in 1968 – a few kilometres up river of Fredericton – and during the 50 years, half a century, after the Dam was operating.  So why not an accurate prediction of the historic flooding – not an inch or so above all previous highs but something like a foot?

We rely on models in the forensic engineering investigation of the cause of foundation failure.  Foundation design and construction is closely tied to the semi-empirical science of soil mechanics – a science partly based on measurements and observations and partly on theory.  This science developed in the early 1900s and holds us in good stead in a forensic investigation.

Annual flooding in the St. John River was being recorded each year long before the early 1900s, and the weather – temperature and rainfall – and conditions in the watershed – snow pack – were being noted.

So, I would put my money on the existence of accurate models that would predict with a respectable degree of accuracy, a week or two in advance, that New Brunswick was going to be flooded-out.  These models would include data on how the Mactaquac Dam is operated in storing and releasing water.

I was in contact with a professional forester who lives in Douglas a short distance up river of Fredericton.  He wonders too about the flooding and also noted the Dam and it’s operation as a feature in the watershed.

I can’t help but wonder if a similar situation exists in British Columbia with the flooding there.

References

  1. Giere, Ronald N, Bickle,John, and Mauldin, Robert F., Understanding Scientific Reasoning, 5th ed., 2006, Thompson Nelson, Toronto
  2. Wikipedia, May 14 and 15, 2018

How you can help break the expert evidence logjam

It sounds like a commercial but you can help break the logjam by reading Dr. Ruth M. Corbin’s paper on how we experts are helping. (Ref. 1)  Then you suggest what might be included in follow-up studies to her pilot study of 152 experts.

You might remember from my blog earlier this week that the logjam is the different perspective of expert evidence held by the courts as distinct from the experts. (Ref. 2)

Ruth calls for follow-up research on the following questions:

  1. Empirical research to strengthen the evidence-based foundation of future policy
  2. Economical modeling to complement the Supreme Court’s call for a “cost-benefit” analysis of expert testimony, and,
  3. Practical steps toward creating a forum for direct communication between experts and courts

We’ve got to get Atlantic Canada input to these follow-up studies – there’s no information on the role we had in the earlier studies.

In my earlier blog, I suggested including the following in follow-up studies: :

  1. Future studies and perspectives must be evidence-based.  I was prompted to suggest this on learning that the court’s view of expert evidence as revealed in the pilot studies was not so evidence-based.  It was this view as I understood it that influenced the policy on rules governing experts
  2. Economic modelling to complement the Supreme Court’s call for a “cost-benefit” analysis of expert testimony must include an identification of the principles governing the cost control of civil litigation involving experts.  You can’t do a reliable cost-benefit analysis without accurate expert costs arising from conformance to these principles.
  3. The role of the middle man, the advocate, in direct communications between experts and courts must be carefully spelled out.

Summary

Read Dr. Corbin’s paper – you’re in for a treat -, and possibly my blog and take on the situation, then send your comments to her.  Don’t be too refined, just get something out there like in brain storming.  Send your comments and suggestions to info@corbinpartners.com  I found Dr. Corbin’s assistant very good, responding quite quickly to my queries and promptly forwarding comment onto Ruth.

References

  1. Corbin, Ruth M., Chair, Corbin Partners Inc. and Adjunct Professor, Osgoode Hall School, Toronto, Breaking the Expert Evidence Logjam: Experts Weigh In, presented at Expert Witness Forum East, Toronto, February, 2018 (Google the paper and Ruth’s name)
  2. How experts are helping break the expert evidence logjam.  Posted April 30, 2018

How do you get hard evidence from soft data?

How do you get evidence about the speed of a car from cracks in the pavement or trees at the corner?  How do you get reliable, quantitative evidence from the qualitative data on a mobile phone?  Evidence that will stand up in court?

This is being done now by a new forensic investigation method.  It requires knowing what to look for in the phone’s video, some measurements with a carpenter’s tape, Google earth, a little junior high math and lots of software.

It’s called video velocity analysis, a scary title but remember: Carpenter’s tapes, junior high math and modern technology make it happen.

Video of aircraft accidents taken by witnesses has been analysed since 2008.  The crash of TransAsia flight 235 on February 4, 2015 in the Keelung River shortly after takeoff from the Taipei Songshan Airport was caught on three separate witness cameras, and was subsequently analysed.  Video of traffic accidents is now being done the same way.

Reliable forensic evidence

The qualitative data on traffic cameras and car dashboard cameras is also being used, as well as mobile phones to learn the speed of a car at the time of an accident.  In fact, it was the cross checking of an assessment of car speed from three different sources of soft data - mobile phone, traffic camera and dash camera - in field trials with a car with a speedometer and GPS, that has demonstrated the accuracy of this new method.

How accurate is an assessment of car speed using these types of simple cameras?  Depending on the circumstances, within about 2 km/hour – pretty hard evidence in a court case.

Google Earth sometimes figures in this type of assessment as well.  How accurate is the quantitative data from the eye in the sky, kilometres high?  How about within a few centimetres on the ground in urban areas.

Evidence based on junior high math 

The basic principle is simple enough.  Measure the distance between two points on the ground seen in mobile phone video, note the time on the video for the car to travel this distance, divide one by the other – junior high math – and you’ve got your car speed.  Photogrammetry, the science of making reliable measurements using photographs, is sometimes used in this work but the principle is simple.

What does the analyst look for in the mobile phone video, traffic camera or dash camera?  Basically, anything on or near the ground that can give distance that can be correlated with time which is also taken off the camera.  Things like the distance between construction cracks in the pavement, dashes on road centre lines and lane markings. The analyst is also interested in anything that can be seen on Google Earth.

Car speed in accidents has been measured other ways for years and continues to be.  Using mobile phones is new, can be more accurate and provides an opportunity for the cross checking essential to good engineering and applied science.  I had the cross checking of data drilled into me by Major James A. H. Church when I studied land surveying at the College of Geographic Sciences. (Ref. 1)

Explained in Moncton, NB in 2017

This all came out in a lecture I took last fall in Moncton by Major Adam R. Cybanski, Gyro Flight and Safety Analysis, Ottawa, on a new technique for learning car speed in an accident. (Ref. 2)

Major Cybanski has been instrumental in developing the technique using the simple, inexpensive mobile cameras that are everywhere today.  He specializes in video analysis and accident reconstruction for aircraft and auto accidents.  Adam flew all manner of aircraft in the air force over the years, slowly moved into the investigation of the cause of aircraft accidents and more recently into auto accidents.

And used in court cases

He believes he is one of a few in the world using this analytical technique.  In 2016 he had one case, but this grew to 14 cases from different accident sites in the world in 2017.  Video speed analysis has been used in several court cases and as of March, 2017 has not been contested.

An analysis took him many months initially when he was developing the technique using witness video.  It is something he can now do in a few days, depending on the location of the accident and the features visible in the video.  Time is spent cross checking an analysis; getting the car’s speed from more than one camera.

Vehicle speed is just one element in accident reconstruction but an important one.  Adam gets camera data sent to him from the principle investigator wherever he or she is in the world, analyses the data and sends the auto speed back to the investigator.  He doesn’t need to visit the site in most cases.  His speeds have been validated using speed radar guns, GPS and Event Data Recorders – the “black boxs” installed in some cars to get information during accidents.

The lecture was organized by CATAIR, the Canadian Association of Technical Accident Investigators & Reconstructionists, Atlantic region.  Dr. Stuart Smith, secretary of CATAIR knew of Major Cybanski and his technique and suggested inviting him to Moncton to speak.  Stu reconstructs traffic accidents in his practice including analysing vehicle speed. (Ref. 3)

The take-away

What’s the take-away from this blog?  A new and accurate method is available to check vehicle speed in an accident as determined in more conventional ways.  The results are reliable and accepted as evidence in court.  And expertise is as near as your e-mail.  The speed of anything that moves can be analysed if caught on a mobile camera.

References

  1. Church, Major James A. H., founder and first principle of the Nova Scotia Land Survey Institute, 1947, forerunner of the College of Geographic Sciences, Lawrencetown, Nova Scotia
  2. Cybanski, Major Adam R., Gyro Flight and Safety Analysis, Ottawa, 2017 http://www.gyrosafety.com  (Adam and I conferred about this method as it’s new to me too)
  3. Smith, Dr. Stuart, C. R. Tyner and Associates, Dartmouth, Nova Scotia   crtynerassociate@eastlink.ca

 

 

 

Drone video as a forensic technique is joined by drone photography as an art form

I enjoyed learning recently about the annual international drone photography contest.  The contest was mentioned in the papers and, of course, I learned more by Googling.  I liked what I read and saw.

The contest recognizes that drone photography is more than fun indulged in by hobbyists with $300 drones and more than a surveillance technique used by the RCMP with $30,000 gear.  It’s an art form, and on the list with its use as a valuable forensic engineering technique using a $10,000 drone fitted with a camera.

The winning and runner-up photographs in the contest are impressive - you must go online and see if there is an artistic bent to your nature at all.  Impressed is the way I felt too when I first saw drone video of one of my forensic sites.

The contest photographs are submitted in four categories: Nature, People, Urban and Creativity by drone photographers from everywhere in the world.  Profiles of the professional and amateur photographers are included on the contest site.

The photographs are judged by a panel of experts that include representatives from National Geographic in France and the US, and from Kodak.  Both companies are two of several high profile sponsors of the annual competition.  This year, 2017, is the fourth year the contest has been held.

Such quality in photography and high profile in contest sponsorship is telling about the future of this photographic technique.  It echoes the increasing success I’m having in my forensic investigations getting evidence with a drone and presenting it to my earthbound clients.

Credits

  1. Some of the content in this blog has been taken from the drone contest website and also a conversation with Robert G. Guertin, Millenium Film & Video Productions, Dartmouth, NS, Canada.

 

Using “Skippy”, a full sized dummy, to get the speed of a car in a fatal traffic accident

How fast was he driving when he hit the girl on the sidewalk?  He’s dead now after falling asleep at the wheel, hitting the girl then hitting a pole.  So’s the girl after sliding several metres in the grass.  Speed is important in reconstructing an accident like this.

His speed can be assessed from the damage to his car.  It’s called a “crush” analysis, not surprisingly.  The assessment can be cross-checked with a different analysis using data from the skid marks of the girl in the grass.

Experts in accident investigation like to cross-check assessments like these – and also refine the analytical methods with new data.  Some of the methods are rough and seemingly not very scientific but that’s hands-on engineering and better than nothing.  If you can measure something – e.g., skid marks, crush shape - even approximately, you can “manage” it; in this case get the speed of the car.

That’s what I was doing last week at a meeting in Moncton of CATAIR, taking part with about eight others collecting data for the continued refinement of an analytical technique.  This time using the skid marks of a body in the grass for determining the speed of a vehicle during an accident.  It sounds complicated but a lot of it boils down to determining the coefficient of friction of a surface like in simple high school physics.

With enough testing, chaps like Mike Reade, Moncton hope results will benefit investigators in situations when they only know the pedestrian’s sliding/tumbling distance after an accident.  The results will be shared with others who work in this field. (Refs 1, 2)

In this case, Mike, who was directing the research and will crunch the data later, threw Skippy, a full size dummy, from a speeding pickup truck driven by Ken Zwicker, Bridgewater.  The rest of us carried out various tasks like spotting where Skippy hit the ground, measuring how far he slid and videotaping what happened to him after he was “hit” by the truck.  Katelynn Everett, a consulting professional engineer from Fredericton, recorded data and did preliminary number crunching.

The field trials are part of the very impressive, ongoing work by CATAIR, the Canadian Association of Technical Accident Investigators and Reconstructionists, and others to refine the analytical methods used by traffic accident investigators. (Refs 2 to 7)

The association is a mix of serving and former RCMP and municipal police officers, professional engineers and technologists all of whom are interested in traffic accident investigation and reconstruction.

In the morning before starting the field trials we met and discussed about 12 different courses on topics related to traffic accident investigation that are available to CATAIR members.

CATAIR meets somewhere in the Atlantic provinces about three or four times a year and do field tests most times.  Recently three teams measured the crushed shape of three different cars that had been involved in traffic accidents.  Each team is analysing speed using different methods and comparing results – Stu Smith, Dartmouth gave a brief report at the meeting on his work on this.  Another time the stopping distance of a vehicle on a road was measured.  And another time still, the turning radius and the path of the rear wheels of a school bus were measured.

Nobody gets paid for this field research.  It’s all to do with refining our understanding of the cause of traffic accidents and reconstructing these, and the camaraderie of like-minded people working together – we do have fun when we’re getting our hands dirty and mud on our boots.

References

  1. Reade, M. W. (Mike), Personal communication. June, 2017
  2. Reade, M. W. (Mike) and Becker, T. L. (Tony), Fundamentals of Pedestrian/Cyclist Traffic Crash Reconstruction, Institute of Police Technology and Management (IPTM), Jacksonville, FL 2016
  3. Civil litigation, forensic engineering and motor vehicle accident reconstruction.  Published September 22, 2015
  4. Is your traffic accident investigator well trained, experienced and “accredited”?  Published February 23, 2016
  5. “Seeing is believing” at a meeting of traffic accident investigators.  Published March 4, 2016
  6. If you  can measure it you can manage it, even if it’s a real mess like a car or truck accident.  Published June 23,, 2016
  7. Forensic assessment of traffic accidents.  Published October 26, 2016

 

What guides the ‘rhyme or reason’ of forensic engineering investigation?

What guides civil engineers carrying out a forensic investigation?  What ensures we do thorough work and give an objective opinion – in keeping with the requirements of the judicial system?  There’s usually little on this in the Appendix of an expert’s report so you could be excused for wondering.

There are, in fact, excellent guidelines in place and some are well thought out after decades of development.  They ensure the judicial system is well served.  And they’re enhanced by rules-of-thumb like the following picked up by experienced engineers over the years.

  1. Follow the evidence – an old chestnut that – for certain evidence that leads to follow-up investigations
  2. If you need more data, get it
  3. If in doubt, go deeper, particularly if the foundation soils are involved in a failure
  4. Expect the unexpected
  5. Beware the tyranny of the obvious when determining the cause of a failure
  6. Get your hands dirty and mud on your boots – get out on the site of a failure; no excuses
  7. If you can measure it you can manage it, particularly if the failure involves the natural environment as well as the built environment

I thought to mention the existence of guidelines to advocates and adjusters for a while now, particularly when a client is retaining an expert for the first time.  Also when the failure is small or medium sized as most are – not catastrophic and newsworthy – and the budget is small.  The standards are high regardless the size.

I looked through my library and found about three and a half dozen books that have guided me carrying out forensic investigations over the years.  Your eyes might glaze over at such a list.  But take a look at the following selection and be assured that civil engineers are being well guided, particularly by the literature from ASCE and SEAK.

The American Society of Civil Engineers (ASCE) has been guiding civil engineers in practice since about 1857 – 160 years – longer than Canada’s 150 years!  SEAK has been reviewing 1000s of case histories involving experts for more than 30 years, learning from what they read and passing it on to experts.  There’s a lot of guidance out there and a high standard set for civil engineers.  You can see it in the titles of the following::

  1. Lewis, Gary L., Editor, Guidelines For Forensic Engineering Practice, 2nd edition, American Society of Civil Engineers, ASCE, Reston, Virginia 2012
  2. Greenspan, Howard F. et al, Guidelines for Failure investigation, ASCE, Virginia, 1989
  3. Janney, Jack R., Guide to Investigation of Structural Failures, 2nd edition, ASCE, Virginia, 1986
  4. Ratay, Robert T., Forensic Structural Engineering Handbook, McGraw-Hill, New York 2000
  5. Nicastro, David H., Editor, Failure Mechanisms in Building Construction, ASCE, Virginia, 1997
  6. Noon, Randall K., Forensic Engineering Investigation, CRC Press, Inc., Boca Raton, Florida 2000
  7. Mangraviti, Jr., James J., Babitsky, Steven and Donovan, Nadine Nasser, How to Write an Expert Witness Report, 2nd edition, SEAK, Inc., Falmouth, Mass. 2014
  8. Zinnsser, William K., On Writing Well: The Classic Guide to Writing Nonfiction, 7th edition, Harper Collins, New York 2006
  9. Roberts, Donald V., Expert: A Guide to Forensic Engineering and Service as an Expert Witness, Association of Soil and Foundation Engineers, ASFE, 1985
  10. Speight, James G., The Scientist or Engineer as an Expert Witness, CRC Press, Boca Raton, Florida 2009
  11. Cohen, Kenneth S., Expert Witnessing and Scientific Testimony, CRC Press, Boca Raton, Florida 2008
  12. Babitsky, Steven and Mangraviti, Jr., James J., The Biggest Mistakes Expert Witnesses Make and How to Avoid Them, SEAK, Inc., Falmouth, Mass., 2008
  13. Stockwood, Q.C., David, Civil Litigation, 5th edition, Thomson Carswell, Toronto 2004

I don’t expect you to check out these references too thoroughly, certainly not read them. Just know that civil engineers are guided by good literature on how to carry out thorough forensic engineering investigations and render objective opinions.  And experienced engineers have their rules-of-thumb.

A thought: What guides your expert carrying out a forensic investigation in their field of study if s/he is not a civil engineer?

 

Conference call on a “drone flight” reduces cost of civil litigation

I had a conference call with a property owner while both of us were viewing aerial video of the property taken from a low flying drone.  It was a cost effective way of resolving some technical issues about the property without a day long trip plus time on site.

I took the video earlier during my forensic investigation of a problem there.  While analysing the video I concluded I had found key evidence relevant to the problem.  But like all air photo interpretation, ground-proofing was in order – get boots on the ground and your hands dirty confirming what you thought you saw.  This is a basic technique in civil engineering and terrain analysis.

I mailed a CD of the video to the property owner, then called and asked the owner to load the video on a computer, go to a certain frame on the video – easy to do with a counter at the bottom of the video – and tell me why the site looked the way it did at that location.  The owner did that and confirmed my interpretation of the surface conditions there - plus added to the significance of the evidence with some history of that part of the site.

It truly was a windfall of data got during a conference call with my client while each of us viewed the video.  Who would have guessed made possible with a drone - a device that may have started life as a simple toy flown by kids in backyards? (Ref. 1)

I’ve since thought about splitting computer screens and Skyping on one screen with my client while viewing aerial video on the other.  Just now I’m realizing I can examine anything on a split screen with a client while Skyping with him/her on another.

***

We then “toured” the rest of the property via the aerial video and confirmed the location of other features relevant to the problem.  I had seen these features on site but wanted to hear the client talk about them.  Surprisingly, another feature of the site was noted that was not so evident on the ground nor in the video.  It also was evidence relevant to my client’s problem.

So, all in all, quite a conference call.  There’s no question this method has gone into my arsenal of forensic engineering investigative methods.  A method that will also reduce the cost of civil litigation.

Reference

  1. Bartlett, P.Eng., Gary. Wellington, Nova Scotia. Private communication

Biased experts cured with a soak in the “hot tub”

Intentional and unintentional bias is a fact of life in forensic investigation and reporting, in life in general for that matter.  Fortunately, there is a solution to the problem and one that will benefit from formal rules governing experts, like Rule 55 in Nova Scotia, when the bias-solution comes to the Atlantic provinces.

The bias-problem was reported in a story in the National Post with the headline “Hired gun in a lab coast: How medical experts help car insurers fight accident victims”. (Ref. 1)  Judges in Ontario noted the bias in the investigation and reporting of some medical doctors on injuries from car accidents.  Also the money they earned from companies who were favoured in the medical reports.

The problem is not unique to the medical profession.  Bias exists in the work of those in different professions and vocations.  I’ve seen it in reports during my engineering work in the Atlantic provinces - blatant bias in one report recently.

The solution to the problem was also noted in the National Post.  It’s the “hot tub” method in which experts give their evidence concurrently.  It was developed in Australia and is getting good reviews in the UK.  It’s being looked at in the US and Canada.

An Australian judge, Justice Steven Rares, gives a detailed explanation of the method with 46 references. (Ref. 2)  The “hot tub” label is obvious on reading Rares’ paper.  The Australian courts have been acknowledged as having the most experience in this technique dating back to about 1985. (Ref. 2)

Briefly, the way it works: After each expert has prepared his or her evidence they confer in a pre-trial meeting, without lawyers.  During the meeting they prepare a joint report on the matters about which they agree and those on which they disagree, giving short reasons as to why they disagree. (Ref. 2)

At trial – in the unlikely event it goes that far - the experts meet again and each is asked to identify and explain the principal issues as they see them, and each is given the opportunity to comment and ask questions of the others. Counsel  then has the opportunity to examine the joint report and the experts’ comments on it. (Ref. 2)

There is resonance between this method and the requirements of the formal and strict rules governing experts and their reports. Well written reports by experts retained by opposing parties are a near perfect fit with the “hot tub” solution.

The growing bulk of the academic and legal papers on the topic seem to agree it’s a good idea. (Ref. 3)  However, there is a view by some that the formality of the new rules governing experts and their reports reduces the possibility of discussion amongst experts – key to the “hot tub” method. (Refs 2, 3)

I believe that problem will be overcome because most cases don’t go to trial - and even in the few that do, the solution involving experts’ reports will be made to work because it’s needed.  Well written expert reports and agreement amongst experts, as presented in a joint report, are essential to the successful and expedient resolution of disputes at all stages.

The ”hot tub” method is working well in reducing bias, saving court time and reducing civil litigation costs. (Refs 2, 3)  That fact will carry the day.

It’s being called for in Ontario where judges see a bias-problem.  It would work well in the Atlantic provinces.

For certain it’ll work well in the hard sciences like engineering where we are disposed to working together to figure things out and solve problems, without getting cranky with one another.

References

  1. Blackwell, Tom, “Hired gun in a lab coast – how medical experts help car insurers fight accident victims”, National Post, January 7, 2017, page A7
  2. Rares, Steven, Judge of the Federal Court of Australia and an additional Judge of the Supreme Court of the Australian Capital Territory, “Using the “Hot Tub” – How Concurrent Expert Evidence Aids Understanding Issues”, October 12, 2013. Google, January 14, 2017
  3. van Rhijn, Judy, Hot-tubbing experts – should lawyers like it?, Canadian Lawyer July 4, 2011

 

Why do I blog on forensic engineering investigation?

I blog because I want you to know about an interesting field of engineering that I enjoy and that contributes to the resolution of disputesa nice way to practice.  Also, an engineering practice that is relevant to the field of practice of many of you.

To some extent, ours is a litigious society and one with a lot of insurance claims involving engineering failure and personal injury.  Inherent in this situation are technical obligations for counsel and their need to know something about forensic investigation.  Some cases don’t go forward or claims settle until the technical issues are identified and investigated by an expert.

In many cases, an important duty for counsel is ensuring the technical evidence is properly understood by the court or tribunal. (See the Comment on Reason #1 below, also Ref. 1) There are other reasons I blog – I’ve identified and listed eight (8) below, but this is an important one.

I identified the following reasons by reviewing the 134 blogs that I have posted in the last four years.

Why do I blog?

Reason #1 I want to describe the nature and methods of forensic investigation for counsel and insurance claim consultants.  Including some of the newer methods like a low flying drone fitted with a camera to photograph the scene of an engineering failure or personal injury.

(An aerial photograph taken from a low flying drone was key to assessing the pattern of drainage at a contaminated site.  I was surprised at what I saw)

I want to describe how we carry out independent investigations, observe, analyse, draw conclusions and formulate objective opinions.  Then present quality and reliable evidence to counsel and the court or tribunal in simple, non-technical English.

Comment: Why is this a particularly good reason?  I’ve learned that counsel has obligations with respect to the expert’s report or affidavit. (Ref. 1)

In many cases, counsel must learn about the technical subject to which the evidence relates in order to identify the relevant technical issues.  He or she has an important duty in the presentation of technical evidence to ensure it’s properly understood by the court or tribunal. (Ref. 1)

Counsel also has an obligation to monitor the cost of civil litigation in view of the often small to medium size-sized cases in Atlantic Canada – and their sometimes less affluent nature.  This is because the extent of an all-stages forensic investigation is often similar regardless of whether the engineering failure or personal injury is small, medium-sized or catastrophic.

Costs can be controlled to some extent by how an expert is retained and how early.  There are at least eight (8) different ways. (Ref. 2)

It’s difficult for counsel to carry out their obligations to the court or tribunal and also monitor costs without having some understanding of how engineers do their work.

Reason #2 I also want to help readers understand why a forensic engineering investigation can be expensive.

Comment: The expense has everything to do with carrying out a thorough investigation and rendering a reliable opinion, as expected of the expert by the court or tribunal.  For certain, following routine investigative procedures in an effort to ensure no stone is left unturned. (Ref. 3)

As well, we don’t know when we start what we’re going to find that we must investigate.  Every failure and accident is different. (Refs 4, 5 and 6)  And then there are the surprise, follow-up investigations.  Not enough time and money is no excuse if we miss something.

Counsel can assist – with some understanding of forensic work - by identifying and selecting the relevant technical issues early in the case with the assistance of the expert.  Then having the expert focus on these in an effort to control costs.

Reason #3 To help counsel understand the importance of retaining an expert early in all cases, affluent and less affluent alike, the different ways an expert can be retained and the importance of monitoring costs – starting when the merits of a potential case are being assessed. (Refs 7, 8)

Comment: At present, experts are too often retained months or years after a case is taken and after the cost of the forensic investigation has been estimated by other than the expert.  This contrary to the advice of some of the most senior members of the legal profession. (Ref. 9)

For example, I was retained by counsel 11 years after a personal injury.  I visually examined the site and reported on what could have been done to prevent the accident.  The case settled four (4) months later.  To give counsel credit, he carefully instructed me on the technical issues to investigate which reduced the cost in this case.  This type of instruction doesn’t happen very often.

Reason #4 To help the justice system understand what they should be getting for the money spent on forensic investigation: That is, thorough investigations to ensure the quality of the evidence and the reliability of an expert’s opinion, and well written reports.

Comment: Rules governing experts have placed greater emphasis on the investigation and the expert’s report, to encourage the settlement of cases without going to discovery and trial.  There are excellent guidelines on forensic investigation and also on writing expert’s reports.  And excellent books, in general, on writing well.  I’m not sure these are being consulted to the extent they should.

Reason #5 I want to understand the forensic engineering field better myself, to learn by writing the blogs and “thinking on paper” – particularly, on how addressing the technical issues supports the resolution of disputes.

Comment: Like all of us, I’m learning all the time.  Most recently about the value of low cost, initial hypotheses on the cause of problems based on very limited data.  This task could save counsel money – as long as it’s remembered they are initial hypotheses.

For example, I hypothesized with considerable confidence on the cause of a catastrophic bridge failure during construction (Edmonton) - based on study of photographs in a newspaper.  In another, the cause of the sloping, sagging floors in a multi-story building (Halifax) - based on a visual examination of the floors and knowing how buildings are constructed.

Cases are also being settled today based on simple verbal reports after the technical issues are addressed.  In some cases not even a verbal report because counsel is on site and sees the results of the expert’s investigation unfold before him.

Reason #6 I want to increase my understanding of the civil litigation process.

Comment: Experts have a duty to acquire some understanding of the process.  The justice system expects this of us.

I researched and posted 10 blogs on the role of a professional engineer in the civil litigation process for the benefit of counsel and their clients. (Ref. 8) I learned a lot during this research.

It’s also been an eye-opener to learn of the dichotomy between the claimant’s right to justice and the expense of getting it.  Associated is the conflicting interests of the different parties to the process.

For example, the court, while encouraging counsel to expedite cases and control costs, wants quality evidence and a reliable opinion, which takes time and money.  The expert needs to do thorough investigative work to get this evidence.  He expects to get paid according to his schedule of fees, his level of expertise and the responsibility he bears.  If the claimant has retained the expert on a fee basis, he doesn’t want to spend any more than necessary.  If counsel has taken the case on a contingency basis and retained the expert, he wants to protect the worth of the file to his firm.  Quite a mix of interests.

Reason #7 Because of a sense of obligation to my readers who have seen the blog for four years and perhaps have come to expect it – to fill a void that was there.

Comment: Feed back suggests you do get something from my descriptions of the nature and methods of forensic engineering, and my comments on related matters.

A senior lawyer in Atlantic Canada said, “I love that stuff..!!”.  Another senior legal chap on the east coast commented, “…like reading them.”  And an insurance claims consultant said, “I read every one”.  It’s hard to beat testimonials like that.

Two senior counsel helped me with two of the blogs on the role of professional engineers in the civil litigation process – critiqued them before their posting.  One of these noted that experts are invaluable to civil litigation.

A fellow who blogs on business ethics, Dr. Chris MacDonald, Toronto, and has an international reputation in his field – he’s on a list of 100 influential business people that includes Barack Obama - saw fit to advise his twitter followers of my blog.

A monthly periodical on engineering construction – with an international distribution of 10,000, sought permission to publish one of my blogs.  The issue had a forensic engineering theme.  Then they came back a couple of weeks later requesting permission to publish two additional blogs in the same issue.

In four years, I`ve only had about 10 readers request removal from my distribution list.  This because they were retired or the subject did not relate to their field of practice.

Overall, quite a good reception – suggesting there was a void, and that I`m making a contribution to the civil litigation process and to insurance claims management.

Reason #8 For that satisfied feeling that comes from creating something – a piece of literature that did not exist before

Comment: A few months after I started blogging in June, 2012, I noticed a feeling of satisfaction after posting an item, a mild elation.  It was subtle but there.  On reflection, I realized I felt good because I had created something – a piece of literature that didn’t exist until I put pen to paper.  So, I blog for that satisfied, creative feeling.  You all know how elusive that feeling is in our busy work-life, balance-challenged lives.

On further reflection, I realized the feeling was also about finally publishing information on a topic or technical issue useful to my readers – finally letting it go.  I like my blogs to be as clear and well written as possible - in a sense, like well written, mini, expert reports.

References

  1. The Advocates` Society, Toronto, Ontario, Principles governing communicating with testifying experts June, 2014
  2. Peer review costs can be controlled.  Posted January 22, 2016
  3. Steps in the forensic engineering investigative process with an appendix on cost.  Posted July 15, 2013
  4. What do forensic engineers investigate in Atlantic Canada.  Posted October 9, 2014
  5. Forensic engineering practice in Eastern Canada.  Posted May 7, 2015
  6. How many ways can a building fail and possibly result in civil litigation or an insurance claim?  Posted July 10, 2014
  7. The role of a professional engineer in counsel’s decision to take a case.  Posted June 26, 2012
  8. A bundle of blogs: A civil litigation resource list on how to use forensic engineering experts.  Posted November 20, 2013
  9. Stockwood, Q.C., David, Civil Litigation: A Practical Handbook, 5th ed., 2004, Thomson Carlswell