About admin

I am a consulting professional engineer with 38 years civil and forensic engineering investigative experience. I have worked on civil engineering projects, and forensic and insurance cases, in eastern, western and northern Canada, offshore Nova Shore, the Beaufort Sea, and overseas in the Caribbean, the U.K. and Australia. Civil engineering alters and reshapes the natural environment to provide built environment to meet the needs of mankind. Civil engineering includes the planning, design, construction and maintenance of structures making up the built environment. Examples of these structures are industrial, commercial and residential low- and high-rise buildings, also bridges, roads, dams, drainage systems, earthworks, and hydraulic works. Included is the plant and equipment in the buildings and the infra-structure servicing the buildings. Forensic Engineering investigates the cause of problems and failures with these structures as well as the cause of traffic and industrial accidents that occur in the built environment. The technical data from an investigation is used by the judicial system in determining damages. I practiced as a provincial land surveyor on Prince Edward Island, Canada before studying and practicing civil and forensic engineering.

How does an expert engage with a party to a dispute or a forensic investigation?

I was struck recently by the different ways experts engage with the parties to a dispute or those needing a forensic investigation.  I counted eight (8) different ways in comments by experts I consulted.  Some good and conforming to well regarded project management practices, others not so much.  How an expert is engaged affects how well costs are managed.

(See a list in the Appendix of the different parties that could be involved in a dispute or forensic investigation)

Seeing how it’s done now drove home the need for principles governing the cost management of dispute resolution and forensic investigation involving experts.  I’m identifying these principles and will post them later.

Early last month I sent a draft of the principles to experts and practitioners in different fields and asked them to review it.  These people included colleagues in engineering, traffic accident investigators, several civil litigation lawyers, a town planner and a published author.  I got good comments and suggestions and I’m incorporating these where relevant.

The reviewers’ comments indicated several ways experts engage with the parties to a dispute.  I’ve listed these below.  The methods vary from project management techniques, as characterized by frequent reporting of cost-to-date and estimated cost-to-complete, to methods that risk the expert being perceived as agreeing to a fixed price for his services. There’s not a lot of order to the following list and I’m sure it’s not exhaustive – it’s just an indication of how experts engage with clients in Atlantic Canada::

  1. Fee basis after the retaining party briefs the expert, the expert reads the documents and then estimates the cost of the forensic investigation.  Frequent updates on current costs and estimated cost-to-complete.
  2. Fee basis.  No reporting.  No cost estimate.
  3. Engage for the budget set by the retaining party, after learning the budget and the party’s theory of the case.
  4. Fee basis if the client has taken the case on a fee basis.  Declines the commission if the client has taken the case on a contingency basis.
  5. Fee basis and frequent oral reporting to the party on the findings at successive stages of the forensic investigation, and after being instructed by the party to carry out each stage of the investigation.
  6. Fee basis after all investigation is complete and all damage repair and remediation is done and all costs accurately known.
  7. Fee basis for preliminary investigation like reading documents and a visual examination of the failure or accident site sufficient to estimate costs for subsequent stages.  Then do successive stages as directed by the retaining party.
  8. Fee basis plus frequent reporting of current and estimated future costs.

This list begs the question:

  • Why the parties to a dispute or forensic investigation don’t engage with an expert early,
  • on a simple fee basis,
  • with frequent reporting of the evidence-found-to-date,
  • the cost-to-date, and
  • the estimated cost-to-complete?

If how an expert is engaged affects the cost of dispute resolution and forensic work then the bulleted procedure is effective – engage an expert early and get frequent oral reports on everything.  And engage an expert only as long as required by the judicial process and the needs of the party.

Appendix

Parties to a dispute or a forensic investigation can include one or more of the following::

  1. Advocates and civil litigation lawyers
  2. Insurance company representatives
  3. Claims managers and consultants
  4. Insurance adjusters
  5. Owners of damaged property
  6. Builders and contractors
  7. People injured in accidents in the built and natural environments

Advocates, insurers and property owners, become aware!

I initially thought Buyer beware! as a title for this blog but that would be a poor choice of words because you’re not at risk of being cheated when you retain a forensic expert.  You are at risk of thinking an expert knows everything

And related, also at risk of misunderstanding the tasks a forensic expert must carry out in conforming to good practice when investigating a failure or accident.  Misunderstanding leads to crankiness as experienced by a couple of my clients.

You need to learn a little something about these tasks.  And why s/he must do them, and why it’s difficult to estimate the cost of some of them.  If we follow the evidence, we don’t even know about some of these tasks until our boots are on the ground.

Learn something about the following:

  • The building or civil engineering structure involved in the expert’s work
  • The stages and tasks in a forensic investigation

Become aware of the following:

All buildings and civil engineering structures in the built and natural environments have basic components that experts can name for you.  For example, they all have foundations, and also beams and columns.  And do you know?  A structure’s basement – like your house basement, for example, or that of a multi-story building - is the most complicated component of all – not very glamourous, just the most complicated. (Ref. 1)

All forensic engineering investigations have basic stages and tasks that are described in simple, non-technical language on this site and in engineering guidelines. (Refs 2, 3 and 4)  Some examples: 1) The document-review stage, 2) The visual-examination-of-the-site stage, 3) The recording-the-as-built-condition-of-a-component state, 4) Noting the as-failed-condition-of-a-structure stage, and 5) In a slip and fall accident, testing-the-skid-resistance-of-a-floor stage.  And all are carried out to an engineering standard of care.

We can estimate the cost of known tasks with varying degrees of accuracy – from easy and accurate to very difficult and quite inaccurate. (Refs 5, 6)  It’s the unknown tasks that crop up when we follow the evidence and look under the next rock that cause grief for all parties involved in a dispute.

The following nice people thought I knew everything:

Example #1: A client was surprised that I met with a contractor on site and charged a fee for this.  I was there to brief the contractor on the project and confirm how he would tackle the several stages involving different structures.  It was somewhat of an exotic project and nowhere to be found in the engineering textbooks.  I can specify an end result but it behoves me to make certain the contractor knows how to get there.

“I thought you knew everything!” my client remarked.  A nice way to be seen but we don’t know everything – we do know how to figure things out though.

Example #2: Another time a client was surprised when I charged for “researching” an issue -  safety criteria in a slip and fall accident.  There’s little guidance in the building code on this type of problem but lots of literature in North America and Europe.  I had to figure out how it applied to my particular case.  Again, “I thought you knew everything!”.  Nice thought.

Example #3: I’m trying now to determine if the site of an old fuel oil spill is still contaminated.  The spilling stopped about 27 years ago when the underground storage tanks were removed.  It’s fairly easy to learn the direction the oil flowed when it was carried away by the groundwater.

It’s something else to learn where the oil ended up and if the ground is still contaminated at that location.  I do know that natural attenuation has reduced the amount of oil in the ground but whether or not to an acceptable level is difficult to determine.

Natural attenuation is a complex process and there’s little or no expertise readily available because the problem doesn’t crop up often.  Should I get compensated for trying to find an expert in eastern Canada, the USA or farther afield because “I don’t know everything”?

(Natural attenuation involves microorganisms in soil eating the oil – it’s food to them.  There are five processes in natural attenuation but this is a main one)

Example #4: Somewhat related were the geotechnical investigations I carried out for new wharf and breakwater construction in harbours on Canada’s east coast.  About 27 investigations over several years.  My clients wouldn’t cover my expenses to travel to a harbour and reconnoiter conditions before estimating the cost of the work.

For example, reconnoiter the sea conditions we had to work in – sometimes quite exposed and dangerous -, investigate coastal conditions from which we had to launch a barge with a drill rig onboard, and check out the possible foundation soil conditions as exposed along the coast.

Surely I would not be expected to “know everything” about a harbour without seeing it and talking with the local fishermen?  And surely It’s not unreasonable to charge a fee for this?

***

When I suggest you learn a little something, I don’t mean you should learn a lot and pass a test.  Just gain some understanding and become aware of the tasks an expert must carry out, and to the standard of care for the time and place.

The recent case, Example #1, where I met the contractor on site consisted of seven big tasks.  Three quite large, different tasks plus three less-big tasks that prepared site conditions for a main task.  The main task also had a poorly defined scope that made matters worse.  All big tasks with expertise in the area but none that are done on even a half yearly basis, year after year.  And when the seven tasks were lumped together, this type of seven-big-task project was unusual for this area.

I would hardly expect you to learn much about a project like this but learn something and that it’s demanding of an expert’s time, including figuring-out and occasional research time.

Learn a little something about “the nature and methods of forensic engineering investigation” like it says in the masthead of this blog site.  Also the structure(s) involved and its components.  Forensic experts can give you a good understanding in most cases, except when we’ve got to follow the evidence and don’t know what we’re going to find until we get there.

References

  1. Swinton, Michael, NRC-IRC and Kesik, Ted, PhD, University of Toronto, Performance Guidelines for Basement Envelope Systems and Materials, Research Report 199, pp 185, National Research Council, Canada October 2005
  2. Steps in the Forensic Engineering Investigative Process With an Appendix on Costs.  Posted July 15, 2013
  3. American Society of Civil Engineers (ASCE), Guidelines for Failure Investigation, 1989
  4. Janney, Jack R., Guide to Investigation of Structural Failure, ASCE, 1986
  5. Difficulty Estimating the Cost of Forensic Engineering Investigation.  Posted July 23, 2013
  6. Why the Difficulty Estimating the Cost of Forensic Engineering Investigation?  Posted September 1, 2013

Bibliography

  1. Lewis, Gary L., Guidelines for forensic engineering practice, ed., ASCE 2003
  2. A Bundle of Blogs: How to Manage the Cost of Civil Litigation Involving Experts.   Posted August 31, 2017

 

 

How to retain an expert in a cost effective way

If you include peer review – good case insurance – you can consult with an expert in eight (8) different ways, from least expensive to most expensive, according to the technical needs of the case. (Refs 1, 2)  Really, only four (4) basic ways plus peer review.

Judiciously selecting the best way is one key to managing the cost of civil litigation.  You still got to manage your costs as distinct from the expert’s costs.

If you briefly confer with an expert, at the case merit assessment stage, you can, in a sense, add a ninth (9th) way.

These different methods are described below.  And there’s a nice, nine-item list at the end to help you see how easily the different methods follow on one another.

You must think about how and when you retain an expert because most failures in the built environment are small or medium-sized, not catastrophic and newsworthy – and not affluent either. (Ref 3)   Yet, regardless of case size, most failures and injuries require a thorough forensic investigation consistent with how the expert is retained and what s/he is asked to do.  You can always start small and expand the investigation as.the evidence comes in, if this seems justified.

Peer review of the expert’s work regardless of how he is retained is not so so necessary, not one of the basic ways, but it is good insurance – and cost effective for that reason alone. (Ref. 1)

In the past, experts have been retained in one of two ways:

  1. Consulting expert
  2. Testifying expert

Today and in future – almost without exception – experts will serve as consulting experts in the resolution of disputes rather than testifying experts.  This is because of changes in civil procedure rules governing experts.  The changes are designed to expedite resolution of disputes and reduce the number of cases going to trial.

(I attended Expert Witness Forum East in Toronto last February and learned that 98% of cases in one area of dispute were settled out of court.  I can’t remember the area but know it wasn’t engineering and science; even though the great majority in these fields, percentages in the mid-90s, are also settled out of court)

The consulting expert will submit one or the other of the following two basic reports according to Counsel’s instruction.  Ideally, these reports would be submitted at several stages throughout a forensic investigation, starting at a preliminary, even a merit assessment stage, to keep Counsel informed as to what the evidence is finding and the cost to date:

  1. Oral consulting expert’s report
  2. Written consulting expert’s report

The oral report can also be presented in one of two ways:

  1. Factual oral consulting expert’s report
  2. Interpretative oral consulting expert’s report

factual report gathers together all the data from the office, field, and laboratory investigations and submits the raw data to Counsel – without analysis and interpretation.  It’s used now in the science and engineering fields.  For example, in the geotechnical investigation of ground and foundation conditions at a new building site.  I was introduced to this type of reporting while practicing for a time in Australia and England.

An interpretative report analyses and interprets the raw data, draws conclusions and formulates an opinion on the cause of the failure or accident.  The report can be quite comprehensive, particularly in a complicated case.

The cost of a factual oral report is easier to estimate and control.  The cost of an interpretative oral report is more difficult to estimate.  Sometimes very difficult because you don’t know what you’re going to find at the site of an engineering failure or accident if you follow the evidence, (Ref. 4)

factual oral consulting expert’s report to retaining Counsel could be quite inexpensive compared to a written report to the requirements of civil rules.  A peer review of the factual oral report could also be relatively inexpensive.  The peer might discuss the facts with the expert – orally – and the investigation supporting these.

For example, I gave a factual oral consulting report on a power tool accident after I videotaped the victim reenacting the accident and after the tool was examined for wear but before investigating the adequacy of the design and manufacture of the tool. Counsel decided against further investigation based on my factual oral report.

Other examples: A colleague who reconstructs traffic accidents said he frequently gives oral reports on his findings.

Similarly, an interpretative oral consulting expert’s report could be relatively inexpensive with or without a peer review compared to a written report.  More expensive, of course, because of the interpretative element, but still less than a written report.

The written report can also be presented in one of two ways:

  1. Factual written consulting expert’s report
  2. Interpretative written consulting expert’s report

The relative costs of these two ways of writing a report on the forensic engineering investigation are apparent – less for factual and more for interpretative, and a little more still for peer review of either.

A summary of sorts

So, the cost of retaining an expert increases from least expensive – a factual oral consulting expert’s report without peer review, to most – an interpretative written consulting expert’s report with peer review.

It’s no surprise that an interpretative written expert’s report is one of the most expensive if it’s remembered that “An expert’s report is a critical, make-or-break document.  On the one hand, a well-written report will make testifying later at discovery and trial much easier … On the other hand, a poorly written report … can turn discovery or trial into a nightmare …” (Ref. 4)  And, I might add, turn questioning and rebutting the report before discovery into a cakewalk, a tsunami, if the report is distributed to all parties.

How you retain an expert – there are eight (8) different ways – is one key to reducing the cost of all cases, affluent and less affluent alike.  You can’t lose, if you manage your own legal costs properly, as I’m sure you do, with so many cost effective ways to retain an expert.

And also, like I said, there’s another way still, possibly the best way of all, the ninth (9th) way: Briefly talking with an expert at the case merit assessment stage.  Retaining an expert at this stage, for a few dollars. would be sort of like a preliminary factual oral consulting expert’s report – the most cost effective way of all and the best return on money spent on an expert; possibly even better than peer review.

Here’s how the different ways of retaining an expert appear in a list – from least expensive to most expensive – if we include conferring with an expert at the case merit assessment stage:

  1. Preliminary factual oral consulting expert’s report (at the case merit assessment stage)
  2. Factual oral consulting expert’s report
  3. Factual oral consulting expert’s report plus peer review
  4. Interpretative oral consulting expert’s report
  5. Interpretative oral consulting expert’s report plus peer review
  6. Factual written consulting expert’s report
  7. Factual written consulting expert’s report plus peer review
  8. Interpretative written consulting expert’s report
  9. Interpretative written consulting expert’s report plus peer review

A bit repetitious but I think helpful in deciding how to retain an expert in a cost effective way.

I did not include testifying expert in this blog because this role for an expert is much less likely in future – a few percent at most across all areas of dispute.

References

  1. Eureka! Peer review is good case insurance. Posted November 16, 2018
  2. How experts are retained in civil litigation is changing and the changes are good for counsel and the justice system. Posted May 1, 2014
  3. Principles Governing Communications with Testifying Experts, The Advocates Society, Ontario, June, 2014
  4. Reducing the cost of forensic investigation – it’s being done now by default not by plan. Posted September 22, 2014
  5. Mangraviti, Jr. James, J., Babitsky, Steven, and Donovan, Nadine Nasser, How to write an expert witness report, Preface, Page xiii, SEAK Inc., Falmouth, Mass. 2014

Bibliography

  1. Peer review in forensic engineering and civil litigation. Posted November 26, 2013
  2. A bundle of blogs: A civil litigation resource list on how to use a forensic engineering expert. Posted November 20, 2013

 

Eureka! Peer review is good case insurance

Peer review of an expert’s work is good case insurance against a summary  investigation, a careless analysis of the data, invalid conclusions and/or a poorly formulated opinion on cause.  And if all’s good, then it’s good insurance against delay in resolving the dispute and taking up the court or tribunal’s time.

And if a forensic investigation was omitted then peer review and identification of the technical issues is good insurance if the review finds you’re out on a limb – it’s nice to know where you’re at if you’ve got to backtrack.

(Summary as in “done quickly in a way that does not follow the normal process” – not thorough. Ref. 1)

By definition: Peer review is a process by which work (such as a scientific or engineering study, investigation or report) is checked by one or more experts in the same field to make sure it meets the necessary standards before it is published or relied on. (after Ref. 1) It can be as simple as getting an independent expert to simply read the report of the investigating expert.

Also by definition: Insurance is a means of guaranteeing protection against loss.  For example, “The peer review is your insurance against the loss arising from a summary forensic investigation or no investigation at all.”. (after Ref. 1)

I reflect on the above when I learn of failures and accidents in the built and natural environments that are well beyond the case merit assessment stage without benefit of an expert’s insight.  Not even a reading of the documents and a walk-over survey of the site – relatively quick and inexpensive forensic engineering tasks..

I had the Eureka! moment recently when I was following up on the status of a case after consulting with an advocate on the need for an expert to look into the matter.  Initially we discussed the circumstances of the problem and confirmed I was qualified to investigate it.  I was remiss at the time in not inquiring about the stage of the civil litigation.  I was surprised during my follow-up to learn that the case was in discovery.

Oh boy, what to do this late in the game?  I found myself typing my last sentence in an  e-mail suggesting peer review -  it just came out of the blue, the Eureka! moment - “Peer review is good case insurance”.

I know about peer review in forensic engineering but never thought of it as insurance.

***

By way of refreshing your understanding of peer review in forensic investigation you might read one or more of the blogs listed below in the references that I posted in the past.  They’re all quite informative, if I do say so myself, particularly Ref. 4 on peer review costs.  If nothing else, that one could save you money in litigation involving experts.  My blogs are also well referenced to the engineering and scientific literature on peer review so lots of good reading there too.

References

  1. Merriam-Webster dictionary, November 10, 2018
  2. Peer review in civil litigation and civil litigation. Posted November 26, 2013
  3. Peer reviewing an expert’s report ensures the justice system gets what it needs. Posted January 15, 2016
  4. Peer review costs can be controlled. Posted January 22, 2016
  5. Peer review pays off – 17 years later. Posted May 5, 2018

 

Reliable forensic evidence from drone photography; Aerial photos from way-down-low

I continue to be excited about using drone photography during forensic investigations.  The engineer and former land surveyor in me loves the wealth of accurate data in photographs taken a few 10s to 100s of feet above a site where a structure failed or a person was hurt.

We’ve always had photogrammetry in engineering – using photographs taken from airplanes flying many 1,000s of feet above the earth to identify and measure features on the ground.- but we get more and better data from drone photos and get it quicker and cheaper.  The potential uses are something else:

Use #1: Investigating traffic accidents: An engineering colleague routinely sends a toy drone aloft, a 100 feet or so, and takes a photograph of a traffic accident site that he is reconstructing. (Ref. 1)  He sees his site from this angle right away and it guides his investigation as he does his field work.  He can also get a print of his drone photo for his engineering report..

Use #2: Conferring with clients: I conferred with a client a few months ago while both of us had a CD of aerial video of his property uploaded on our computers.  I had mailed the CD to him a few days earlier.  He commented on features on the ground relevant to my investigation of his failure.

In one case he gave the history of the ground at one location – cows drank from a former dug well there in the past – that was important in confirming the depth to the ground water beneath the site.  At the time I couldn’t quite believe what i was hearing about the cows and the dug well – there was no evidence of this when I was on site..

Use #3: Getting data on a site: I emailed a drone photograph to a client recently and asked him to identify the location of buried structures on his property.  Structures like two underground fuel oil storage tanks (USTs), – which leaked oil in the past – a drilled water well, two dug wells, a septic tank and a disposal field.  He did this then emailed the marked up photograph back to me a few hours later.  He used Paint, a program on PC computers.  It was all so quick and inexpensive.

Use #4; Getting BIG Data:: The height or altitude of the drone above the ground when a photograph was taken has always been of interest to me.  Robert Guertin, Halifax who takes my aerial video, found a program that gives a wealth of data on each photograph.  The data includes the height of the drone when the photograph was taken, angle of the photo shot below the horizon, bearing of the view with respect to North and the GPS location, all important data in forensic work.

Use #5: Getting low cost data:  I get the scale of drone photographs now from the known size of objects in the photographs.  Like the length and width of a building or the distance between the lines on a highway.  The scale of the photograph I sent to my client a few days ago that he marked up with Paint is 1″ = 40′.

I can check the scale of a drone photograph by setting out ground control before taking drone photographs, like photogrammetry-of-old.  Ground control is nothing more than points set out on the ground a known distance apart and height above sea level.  I used sheets of white paper to mark points on a site I was investigating in Cape Breton.

Use #6: Photographing hard to get at damage: I recently suggested to a firm who needed an expert that we could record the condition of a damaged wall with a drone photograph.  Later I could measure and analyse the damage in detail and get an idea of the cause – measuring like I do now of the ground but of a vertical surface rather than a horizontal surface.  No step ladders, staging, labour and lots of expensive time needed.  .

Use #7 Replacing expensive site surveys:  The drone photograph with a known scale is certain to replace the need in the future for a site survey by a land surveyor, and be far more detailed, less expensive and quicker.  Site surveys measure the size, location and elevation of objects and features on the ground.  Conventional site surveys can be time consuming and expensive.

Use #8: Seeing a site in 3D: I’m working with Robert to see if we can get a stereo pair of drone photographs of a failure site and using these to view a site in 3D like we’ve always done in photogrammetry-of-old.  Software likely exists now for viewing drone photographs in 3D.  If it’s out there we will find it and I will use it during my forensic investigations.  In the meantime we’re trying to do it ourselves.

(A stereo pair are two photographs overlapping by about 60%.  When viewed with a stereoscope – sort of like eye glasses – the site appears in 3D)

***

What more do you want from simple drone photographs?  Name it and the potential for getting it.is almost guaranteed.  Honestly, with all due respect, you or your expert would be remiss if you did not get drone photos of your site.  Your expert would not be conforming to the changing forensic investigative standard of care.

Reference   

  1.  A kid’s toy drone can photograph the site of an engineering failure, a personal injury or a traffic accident.  Posted September 12, 2018

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The two solitudes of expert services

Take your pick: An expert from the great majority represented by Ruth Corbin’s pilot study of 152 experts, or an expert from the fringe, (Refs 1 and 2)

The study found that the majority of experts know they’re serving the court, not the lawyer who retains them nor the lawyer’s client, and they continue to swear oaths to that effect.  The study was carried out because the judicial system continues to disbelieve them.

Fringe experts believe they are serving the lawyer and his client, not the judicial process.  This to the extent that some want to know upfront the technical issues as perceived by the lawyer – no mention of technical issues that the expert might identify – and how much budget money they got.  These questions during a first telephone call don’t resonate well.  I wouldn’t call these experts hired guns USA style but perhaps treading close Canadian style.

The “two solitudes” came to mind when I was chatting with one fellow and this fringe characteristic was reflected in his comments when the question of who we serve came up..  When i asked he was adamant that experts serve the lawyer not the judicial system.

Fringe example #1: Later this chap asked me to join him in responding to a lawyer’s need for an expert to investigate the cause of damage to a structure.  I didn’t think much about it at the time but he only casually referred to the lawyer by his first name as someone he knew, briefly mentioned another party involved and identified the location of the structure.

Based on my colleague’s description of the problem as he was briefed by the lawyer the cause was obvious, an easy initial hypothesis.  I had investigated this type of problem often enough over the years and it’s written up in forensic engineering guidelines on typical civil engineering failures and their cause.

i agreed to join him help resolve the dispute.  He would manage the case he said and I would investigate and confirm the cause of the problem.  He asked and I updated my CV over a weekend and sent it off to him on the Monday, only to learn he had responded to the lawyer on the Friday sans my CV but including his.

On reading his response to the lawyer I saw brief mention of my name.  When I asked he said he would send my CV when the lawyer asked for it.  I also asked several times over the next few weeks for a copy of his CV as presented and the name of the lawyer and his firm but he never gave me this information.  Months later he explained, “With deference, I’m not going to give you his name.  He called me.”.  Tricky, eh?

He’s heard nothing since from the lawyer.  I can’t help but think the lawyer’s smart enough to know my colleague’s engineering background hardly qualifies him to investigate this type of failure.

Nor can I help but think I witnessed fringe behaviour.  This chap is pleasant, well educated and experienced and I’ll consider working with him in the future, for the benefit of the judicial system, but he’s a bit tricky as I learned and we’ll get things out in the open at the get-go.

But, on second thought, I don’t know if perception is everything and I’m seen to be associating with a tricky, fringe expert.  Another forensic engineering colleague on recounting this case to him was quick to remind me of the perception issue.

Following are a few more fringe cases to ensure that you know there is a fringe solitude to expert services.

Fringe examples #2 and #3: I read two expert engineering reports by separate experts, one on the stability of a fill slope and the other on a slip and fall accident.  I cringed at the bias exhibited by the phraseology in both cases in favour of the experts’ clients.  Crass in one case.

You might say there’s a subjective element in an assessment of bias and that’s true.  But I feel more confidant in my subjective assessment after reading about the eight main biases in engineering. (Ref. 3)

I’ve also read and written a lot of engineering reports, research papers and blogs/essays over the years and I sure do know the difference between objective and biased phraseology.  Think most of us do.

I’m also comfortable with the objective evidence in both cases.  In the fill slope case, the expert did not get out of his car to see the large pieces of construction debris at the toe of the slope threatening the stability.  The debris included organic matter like tree stumps that rot away in time and cause a slope to subside a lot.

And in the case of the slip and fall accident, quite apart from his phraseology, the expert’s comments indicated he did not know the standard of care existing in the area for investigating the skid resistance of the floor at an accident site.

(Skid tests are coefficient of friction tests like in high school physics)

(A fill slope is the slope the surface of the soil or another material slumps down to when it’s piled on the ground.  A cut slope is the slope soil takes when we cut into or excavate the ground.  We see cut and fill slopes everywhere along our highways)

Fringe example #4: Would you like to know about a second slip and fall accident that exhibited fringe behaviour?  But, to cut the engineer some slack, possibly because he was new to the expert services arena.

An engineer, a five hour drive from the accident scene, decided the cause of the accident from pictures provided by his client.  He did not travel to the accident site and examine it firsthand nor carry out skid tests.  That would have added to the cost of the forensic investigation.  The judge dismissed the expert’s evidence.

Fringe example #5: Would you like a fifth fringe case; actually a fringe expert?  At least to some extent a fringe expert.  Years ago I heard an expert remark that he “…knows how to work a case up”.  Work it up into a “…juicy case…”.

Is my years-ago colleague practicing near the fringe?  Possibly.  He is good though in his area of expertise and still practising suggesting he’s impartial enough.  The last thing a lawyer wants is an expert that can be made a fool by the judicial process.  My colleague would have gone by the wayside years ago if he was a blatant fringe expert.

There’s no question the great majority of experts serve the judicial system and do this objectively.  Read Ruth Corbin’s paper again.  And it’s no secret there’s a fringe element that serve themselves.

Sadly enough, with all due respect to civil litigation lawyers, some are contributing to maintenance of the fringe solitude.

I attended the Expert Witness Forum East in Toronto in February and gave a talk on the principles governing cost control in civil litigation involving experts.  During a presentation by others I heard a lawyer suggest that experts should be retained on a contingency basis.  That suggestion has got to be out in left field considering that perception is everything in the judicial process.

The suggestion went nowhere in the ensuing discussion.  But the idea is out there and I’m sure there are fringe experts who will pick up on this idea and run with it and help maintain the “two solitudes” of expert services.

Fortunately, the judicial system is getting what it needs from the great majority of experts, whether it realizes it or not.  The fringe just muddy the waters a bit.  Still, the system has got to be on guard against the fringe experts scaling the bulwarks and taking over.  The fringe experts are out there.

References

  1. How experts are helping break the expert witness logjam.  Posted April 30, 2018 (A blog on Ruth Corbin’s  paper, following)
  2. 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 it)
  3. Are experts being being broadsided by bias, unbeknownst to them?  Posted April 12, 2018

 

 

 

Why did the bridge collapse in Italy and how might Advocates have known this could happen?

(There’s take-away insight in this item for Advocates at the case merit assessment stage, particularly in Appendices 1 and 2.  The simple data there plus conferring with a forensic engineer can help you assess the technical merit of a case)

***

Right away, three engineers had similar thoughts about the cause of the Morandi bridge collapse August 14 in Genoa, Italy :  My friend, Paul Gunson, Adelaide, Australia, in an email a few days ago, friend, Reg Crick, Halifax, during a chat, and me. (Ref. 1)  Paul drove under the bridge in 2009.

Take your pick of causes from a survey of these people:

  • Water,
  • QC,
  • Maintenance,
  • Water

If that’s not enough, I’ll tell you a little secret below about how designers tweak - some might skimp-on - the factor of safety.  (Actually, it’s good engineering not skimping but you need an informed public to understand that)

(QC as in Quality Control during construction and Water as in Lots of Water)

Paul did some research and found that the Morandi bridge and one other showed serious rusting of the steel reinforcing – too much water and too little maintenance  The concrete cover was spalling in some areas and exposing the steel to the weather.  There were also reports of concrete that was way below the specified strength – too little QC.

I did quite a lot of quality control of concrete and earthworks in the past and Paul’s findings resonate with me.  Quality control and maintenance are not very glamorous and often get the short end of the stick.

In a blog several years ago, I added quality control and maintenance to a list that I saw of the stages in the life cycle of a building or civil engineering work – to increase the total to 11.  There’s no questions they are stages where failure can occur.  Ignore them at your peril. (Ref. 2)

Almost the first thing Reg said when we chatted about the bridge in Italy, “Get rid of the water!! (Stupid!!)”.  Reg didn’t say “Stupid!!” but that was the tone. (Ref. 3)  He was referring to proper drainage of the water from the bridge deck that isn’t provided for during bridge design.  Drainage design isn’t very glamorous.

Reg noted another mutual friend Bill Waugh, who designed dozens of bridges in Nova Scotia and Jamaica before he passed away, despaired at the inattention to deck drainage during bridge design.  Water rusts exposed structural steel..  There’s an element of maintenance in this as well; keeping deck drains – when they are present – clear of debris so the water can drain.

I wondered when I first saw the bridge failure why successive spans of the bridge went down after the first one?  Was that continuous span of bridge deck over successive piers designed to such a low factor of safety – in the interest of looking slender and pretty – that a span relied on adjacent spans for some of it’s support?  And when one span goes down, like dominoes many go down?  But in hindsight I realized that proper design of bridges like this one might in fact rely on adjacent spans, but perhaps too much.

A tweaking engineering design secret: In engineering design the factor of safety is reduced – confidently whittled away – with increasing successful design and construction, and no failures.  Until the pendulum swings too far, failure occurs, the pendulum swings back.and the factor of safety is put back up.  This really does happen in design. (Ref. 4, pages 100, 101. A very good read)

(The factor of safety is a number got from dividing the weight you want to support safely into the greater weight that will break the thing providing the support – cause it to fail)

If you want to know more about when and where failure occurs and who is responsible – a broader picture - see Appendices 1 and 2 below.

It’ll be a while before we know why the bridge in Italy failed but the smart money is going down on over confidence during design and poor deck drainage and maintenance.  And no way can I leave out poor QC during construction.  Any takers?

***

There’s food for thought for Advocates in this item.  Buildings, civil engineering works and infrastructure fail in many ways, and some of these are an easy first pick for a forensic engineering expert at the merit assessment stage.  And failure doesn’t have to mean total collapse of a building, – or a bridge like in Italy – but simply that it doesn’t work right.  The bridge probably didn’t work right for years, like in poor deck drainage.

Poor design, construction and maintenance can also injure people, for example, in slip and fall accidents on floors with low skid resistance.

What’s the take-away for Advocates?  You’ve learned that when a failure occurs in the built environment or a person is injured experienced engineers are suspicious of what took place at certain stages in the development of a structure.  Our suspicions are backed up by independent and detailed studies by researchers in the U.S. and Europe of 100s of failures.

Taken together – our experience as engineers and these studies – we have a good idea where to look for cause.  If you don’t consult an expert at the merit assessment stage you risk technical failure of your case.  

References

  1. Personal communication, Paul Gunson, Adelaide, Australia, 2018
  2. Stages in the “life” of a structure helps communication between counsel, insurance claims managers and engineering expert. Posted July 2, 2015 (See update Appendix 1)
  3. Personal communication, Reg Crick, Halifax 2018
  4. Petroski, Henry, To Engineer is Human: The Role of Failure in Successive Design, Vintage Books, New York April 1992,
  5. International engineering magazine publishes information on foundation engineering in eastern Canada – and also information useful to counsel on the causes of failure.  Posted January 4, 2013  (See Appendix 2)

Appendix 1

(The following was taken from Reference 2 above and updated)

You might be interested in the updated list below of the stages in the “life” of a structure in the built environment.  Structures include earthworks and waterworks – a reshaping of the natural environment – as well as buildings and bridges.

I came across the basic list while reading the latest, 2012 edition of Guidelines for Forensic Engineering Practice.  I added the stages in italics to those in the Guidelines.  The list is a useful breakdown of the aging of a structure.

The Guidelines were published by the American Society of Civil Engineers (ASCE).  Civil engineering includes structural engineering and geotechnical engineering.

I see the list providing context and facilitating communication between counsel, insurance claims managers and consultants, and an engineering expert.  Failures and personal injury accidents can occur pretty well any time during the life of a structure.

Principles governing communication between counsel and expert have been developed recently by The Ontario Advocates’ Society. (Ref. 2)  The following list of stages in the life of a structure will further help counsel and an engineering expert talk to one another when a failure or personal injury accident occurs:

  1. Conceptualizing
  2. Planning
  3. Designing
  4. Constructing
  5. Quality control (during construction)
  6. Operating
  7. Maintaining
  8. Renovating
  9. Re-configuring
  10. Decommissioning
  11. Demolishing

ASCE say that, “Failure can be defined as an unacceptable difference between an actual condition or performance and the intended or reasonably anticipated condition or performance.”  This can occur during any stage in the life of a structure.

Furthermore, “Failure need not involve a complete or even partial collapse.  It may involve a less catastrophic deficiency or performance problem, such as unacceptable deformation, cracking, water- or weather-resistance, or other such phenomena.”

It’s not difficult to imagine that failure can occur at any stage.  Nor that personal injury accidents can occur at any stage.

Communication is easier for both counsel and client and counsel and engineering expert if we all have an idea of a structure’s “life” and the stages it goes through as it ages  The list above can help us.

Appendix 2

(The following was taken from Reference 5 above)

An article entitled “The expert witness and professional ethics” reports on the categorizing and classifying of the causes of structural failure as determined by researchers in the U.S. and Europe.  This research reviewed the causes of hundreds of failures.  Based on the research the primary causes of failure were categorized as follows:

  • Human failure
  • Design failure
  • Material failure
  • Extreme or unforeseen conditions or environments
  • Combinations of the above

When professional engineers were at fault (human failure) the causes of failure could be classified as follows:

  • 36%…Insufficient knowledge on the part of the engineer
  • 16%…Under estimation of influence
  • 14%…Ignorance, carelessness, negligence
  • 13%…Forgetfulness, error
  •   9%…Relying on others without sufficient control
  •   7%…Objectively unknown situation
  •   1%…Imprecise definition of responsibilities
  •   1%…Choice of bad quality
  •   3%…Other

When the percentage distribution of the failures were summarized the research found that almost half were due to errors in the planning and design of a structure and a third occurred during construction:

  • 43%…Planning and design
  • 36%…Construction
  • 16%…Use and maintenance
  •   7%…Others and multiple factors

I reviewed research a few years ago that found many, possibly most, foundation failures were due to inadequate geotechnical investigation of the foundation soils.

This type of information based on what appears to be quite exhaustive research is valuable to a forensic engineer in forming an initial hypothesis of failure at the beginning of an investigation.

The information is also valuable to Counsel in assessing whether or not to take a case or gaining an appreciation of where a forensic investigation may be leading based on initial oral reports by the professional engineer investigating the cause of the failure.

 

 

 

 

Forensic engineering and face transplanting

I was struck by the news report a few days ago about the man getting a face transplant, particularly the five years the surgeons and medical docs planned such a daunting operation. (Ref. 1) It reminded me about a case I had a while ago, albeit less difficult by comparison, and months of planning not years.  Nevertheless, I had that daunting feeling too.

Maurice Desjardins’ face was damaged by a bullet during a hunting accident.  He couldn’t close his mouth property and had holes in his face for a nose, and breathed through another hole in his windpipe.  Surgeons tried rebuilding his face with conventional plastic surgery over the years without much luck.

Then Dr. Daniel Borsuk came along, “un magician du visage” (a magician of the face), in his mid 30s and full of youthful piss and vinegar, and after five years of planning – Success.

Dr. Borsuk plus 8 other surgeons, 5 anaesthesiologists and 100 other medical, nursing and support staff performed two operations at the same time that had to end within minutes of each other.  The one operation removed the face of the brain-dead donor and the other transplanted the face before it died.

The operating rooms were so busy looking in news reports that it seemed no one moved unless they all did.  It reminded me of my smallish kitchen when five friends are in it each preparing a different course for dinner.  When one has to move to get something from the cupboard; we all have to move.

So, why am I telling you this?  How does a face transplant relate to forensic engineering?  It relates because some forensic investigations also take a lot of planning to know where you’re going.  Not years but sometimes many months and that can be scary because time is money in civil litigation.

The news report made me think of a case I’ve got that contains six different investigation, design and construction specialties.  They are as diverse as lifting a structure off its foundations and setting it aside to chasing an elusive material across a site, quite literally.

Where do I start in dealing with such a problem?  And how do I estimate the cost of the different specialties to guide the way forward when not a lot of experience exists in the area, certainly not all under one roof.  And for the one specialty, the magnitude of the problem is not known until you start chasing it.  How do you estimate the cost of something like that?

I’m getting on top of this case as the months go by, fortunately not years but still long and difficult. I had that daunting feeling when I started and was reminded of it when I saw the news report.

I thought of another case involving repair of the old foundations of a structure founded on sloping, filled ground that is still subsiding and shifting after about 40 years – not a sinkhole like in oxford, N.S. but almost equally challenging in the uncertainly that had to be confronted.  The main problem was repairing the foundation and supporting the structure safely while accommodating future ground movement and conforming to the standard of care.

Fortunately I remembered a case report from years ago about providing jacking points in the support for a structure underlain by compressible foundation soils.  I also conferred with a friend in Australia, Paul Gunson, who dealt with a similar problem beneath a railway line. (Ref. 2) Paul’s innovative solution included grout and rubber blocks for foundations.  The way forward was clearer.  Still, lots of non-textbook problems to solve and solutions to implement.

Two or three other engineering cases come to mind as i write.  It’s interesting, that the difficult, many month-long ones concern the ground and Mother nature, unknown, unforgiving quantities that don’t lend themselves to neat, quick and easy textbook solutions.  I’ve known about the tricky ground for decades and the planning that is necessary.

For certain, “the magician of the face” knew about tricky plastic surgery and that he was operating at the cutting edge of face transplanting when he started planning years ago.  A friend of mine, a retired ear, nose and throat surgeon, told about repairing a throat one time damaged by a chainsaw – a suicide attempt – and another repair, a windpipe pierced by a 2″ diameter stick.  Where do you start?

It’s a good thing that engineers and surgeons like to have a problem to fix and one to look forward to.

References

  1. Canadian Broadcasting Corporation, CBC,  and other news’ reports, week of September 9, 2018
  2. Personal communication, Paul Gunson, professional engineer, Adelaide, Australia, July 18, 2018

 

A kid’s toy drone can photograph the site of an engineering failure, a personal injury or a traffic accident

C’mon, really? It’s true, as I found out a few days ago during a meeting in Moncton.  I was told about a small drone fitted with a camera that could take vertical, aerial photographs above the site of an engineering failure, a slip and fall accident or a traffic accident and do this within Transport Canada’s regulations.  For that matter, the site of any personal injury.

I was at a meeting of CATAIR, the Canadian Association of Technical Accident Investigators and Reconstructionists.

Transport Canada’s strict regulations considers any drone weighing less than 250 grams a toy.  The Zerotech Dobby Pocket Selfie drone weighs 219 grams fitted with a battery and a 4K HD camera and costs about $350 Cdn – just a toy.  For a look-see and demonstration, Google ZEROTECH Dobby Pocket Selfie Drone FPV With 4K HD Camera  

I can imagine carrying one of these around – almost in your pocket – during a visual assessment of a site like we carry a carpenter’s tape now.  Maybe they’ll be standard issue in the future in the tool kit of forensic engineers, civil litigation lawyers, claims managers and others concerned with a site that has a problem.

The kid’s toy Dobby drone doesn’t take good quality aerial video, which I rely on during my forensic investigations – it’s not fitted with a gimbal -  but it does take inexpensive vertical photographs quickly.  These would be photographs a little like those we engineers used to take of a site from the raised bucket of an excavator or a boom truck.

(A gimbal is a device that keeps a camera level and minimizes vibration.  The basic device has been known for centuries – but it’s not on the toy Dobby because it increases the weight and cost)

Frame grabs of single photographs of the ground from good quality aerial video are easy to get like those from a toy drone but aerial video takes more time to organize and process and is more expensive.

I plan to compare the quality of vertical photographs taken with a toy drone of a site I’m investigating now to that of a frame grab from an aerial video.  I’ll wait till the leaves fall from the tree-covered site so we can see the ground better.  I’ll let you know how they compare..

Getting evidence in slip and fall accidents and building failures with video taken from a drone

I’m using drone-mounted cameras to get video of sites where people slip and fall and buildings fail.  The evidence is different, easy to get and cost effective – a few hundred dollars depending on location.  See Examples below also the References.

I take video almost exclusively because the resolution is so great in frame grabs that stills are not necessary.  Video is normally shot at 30 frames per second.  You can fly as fast or slow as you like, dip up and down, slip sideways and hover – videoing all the time.  Altitude and speed are recorded, and GPS on some drones.

There’s nothing technical about this.  You can get video with a simple, inexpensive camera fixed to a drone flying a few feet, 10s of feet or 100s of feet above and all around the site of an accident or failure.  The first aerial video I had taken was with a GoPro camera like those attached to a skier’s helmet for a scary run down a mountain.

Video from aloft is not the only means by which evidence is collected during a forensic engineering investigation.  This way, however, is relatively new, simple, cost effective and the evidence is from a different angle and sometimes quite revealing.  A DVD of the video on everyone’s laptop also enhances conference calls.

Following are some ways I’ve used video taken from a drone in recent years, or might have, and ways I may do in the future:

Example #1 Recently.What better way to survey and record defects in a high retaining wall involved in a flooding problem than from a few 10s of feet above the ground and off the face of the wall?  Example #2 Or identifying the potential location of fuel oil spilled on different properties as evident from distressed vegetation and colour changes in the ground so visible in a video taken from a few 10s of feet high?.

Example #3 A choice application would have been capturing the re-enactment of a nail gun accident on video from a few feet and right over the scene.  Unfortunately, there was no room for a drone to hover in the tiny room that was available – the actual scene was more expensive.

Example #4 My forensic investigation and re-enactment a few years ago of the John Morris Rankin accident at a test site at the Shearwater Airport would have been a perfect application of aerial video as would filming the 75 foot cliff over which John drove in Cape Breton.  As it was, I got good aerial video of the test site from a Sea King helicopter borrowed for the purpose.  I also got footage from the top of a rented boom truck.  Today I would use a drone fitted with a video camera.

Example #5 Quite recently I thought to use a drone to get video at a step-down and stumble accident site where there was lots of room to hover.

Example #6 Even more recently I’ve thought of using a drone to video the re-enactment of slip, trip and fall accidents in public places where I know there is lots of room to hover.  Places like auditoriums, sport’s facilities and airport terminals. 

You can grab frames at 1/30 second intervals from a video of a re-enactment and study slight changes in the movement of the slip and fall victim.

Techniques like these are being used now to estimate the speed of cars and airplanes in accidents.  Resolution is so good that you would be able to see the nail in a nail gun accident from 200 feet up – if there was an airport terminal with a ceiling that high.

There is also some chance that study of the condition of the floors as seen in the videos  - subtle changes in pattern, colour, texture, material or workmanship that contribute to floor skid resistance, – would cast light on the cause of the accidents.

This is like terrain analysis in civil engineering, – a well developed method – except indoors rather than outside.  The terrain’is a floor rather than the ground down hill of a fuel oil spill or along the proposed alignment of a highway.

Example #7  Also extremely valuable - surveying damage to the side of a multi-story building with a drone-mounted video camera – the former provincial land surveyor in me is enthused about this one.

Video could be taken from a distance of a few 10s of feet to document the character and extent of the damage to the wall, then from a few 10s of inches to measure the damage.  No expensive scaffolding necessary and workers climbing up and down.

Scale for measuring what is seen in the video would be got from the known size of building components used to construct the wall.  For example, the known size of a concrete block and the known thickness of the grout between concrete blocks

The character and configuration of the wall damage, and the size of cracks often points to the cause of the damage.  Random hairline cracks due to normal material shrinkage?  No worries.  Cracks that exhibit a predictable configuration and need to be grouted tell quite another story.  The cause is often almost a given, and would be one of the ways buildings fail.

Studies of how buildings fail have identified at least 209 different ways and they’ve all got causes. (Ref. 3)  And these don’t include all those involving the foundations and foundation soils – too often the Achilles’ heel of designers and builders.

***

This method – taking aerial video with drone-mounted cameras – is being used now in North America.   (It’s a new application of photogrammetry – the identification and measuring of the size of things on the earth as seen in photographs taken from the air)

Using video shot from a drone has got to be one of the most cost effective forensic engineering methods to develop in a long time.  Getting a lot of evidence quickly and cheaply is not too hard to take.

Like I said above, the savings continue when you distribute a DVD of the video to the parties involved for a conference call while each party views the scene on their laptop or device of choice.  I did this during one forensic investigation and surprisingly got more evidence still from comments made during our discussion.

With today’s technology, you can even ‘crew’ on a drone flight as ‘navigator’ by standing next to the ‘pilot’ flying the drone and direct the video to shoot from a remote display.  The video takes on more meaning when you’re part of the action.  I also end all my videos with footage of the pilot and myself, sometimes the plaintiff, standing on the site so there’s no question we were there.

References

  1. A picture’s worth a 1000 words, possibly many 1000s in forensic engineering with a new aerial photographic technique. Posted January 15, 2014 (see aerial photographs from a drone flight in this blog)
  2. New forensic aerial photographic method proving extremely valuable. Posted January 30, 2014
  3. How many ways can a building fail, and possibly result in civil litigation or an insurance claim? Posted July 10, 2014
  4. Forensic photography – the expertise available in eastern Canada. Posted February 26, 2015
  5. Fixed wing drones – another tool in forensic engineering investigation. Posted November 4, 2015
  6. “Crewing” on a forensic drone flight. Posted October 4, 2016
  7. Getting evidence with a low cost, low tech drone flight over a forensic site. Posted March 31, 2017
  8. Conference call on a “drone flight” reduces cost of civil litigation. Posted May 18, 2017
  9. “Unexpected” evidence and the importance of drone photography in forensic investigation. Posted July 19, 2017
  10. Drone video as a forensic technique is joined by drone photography as an art form. Posted August 2, 2017