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Richard A. Rice, PE - Editor
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Edition VII - February 2017
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Happy Presidents' Day!!!
Thank you for supporting Omnia Forensis Ingenariae. Please let me know if you would like to see something added that would further the knowledge of all.
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Several articles make this a very interesting month for OFI readers. First, there is the issue of suing expert witnesses because it was not a good verdict for the client. Second, there is the issue of being labeled a "hired gun." There are many others for you this month. Please take time over the month to read them all. You will learn something. I always do.
Suing Your Expert Witness: It is my experience that less than one percent of the cases I work go to trial. It usually goes this way - I perform an investigation. I share my findings with my client and the adverse parties. The case settles because it was the reasonable thing to do. However, every now and then a case goes all the way to trial. Why? It is my experience that cases go to trial because something is wrong with the plaintiff's side or defendant's side. I will have provided a logical, technically slam dunk explanation as to why my client (plaintiff or defendant) has a good case, or was not responsible. Why did my client or the other side not want to settle? It could be "bull headedness" or something else that has nothing to do with technical details. The case goes to trial and sometimes a judgement is handed down that is not favorable to your party.
Afterwards, the disgruntled party looks for a reason things did not go their way. While I have never been sued for negligent expert witness work (knock on wood), one sure did think about it.
The moral of this story: Always get a retainer before going to trial!!!
Read the article on this in the "In the News" section knowing that you are NOT being given all the details. I would like to know what you think.
Being Labeled a "Hired Gun:" If you have been doing expert witness work for any length of time, you have been asked at deposition about the percentage of cases that your worked for the plaintiff and defendant. In my opinion, this information is not relevant to the case. However, being a realist, I do have an answer. Albeit, not a satisfying one for adverse council. It is the truth when I say that, "The amount of plaintiff and defense work varies from year to year. Some years are more plaintiff. Some years are more defendant. I get asked about percentages a lot." Then the adverse council asks, "If you get asked that question a lot, why don't you have an answer?" My less than appreciated reply is, "Because I don't care."
There's also the problem of forensic engineers being labeled "hired guns" because their companies business model is set up to work primarily for insurance companies. We will save this subject for another month.
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The legislators in Kentucky are the latest to "reorganize" their professional boards due to the fall out that came with the SCOTUS decision regarding the Federal Trade Commission v. North Carolina Dental Board.
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The National Academy of Forensic Engineers (NAFE) winter meeting in New Orleans, LA was a huge success. Twenty-seven first time attendees came to learn from the most experienced and knowledgeable Forensic Engineers working for insurance and legal clients.
When you hire a NAFE member, you are hiring a courtroom tested expert witness. For more information about NAFE and the next meeting in Atlanta, GA in July 2017, please visit www.nafe.org.
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Again, thank you. If you have suggestions for OFI, please email me any time.
Sincerely,
Richard A. Rice, PE
PS: Past editions of OFI can be found at my company website.
Click Here
and scroll down to the bottom of the page. Thanks.
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In the News this Month...
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It Must Be the Experts Fault!!!
Here is a story out of Canada regarding the client wanting to sue their own Expert Witness for negligence. In short, you can't sue your expert in Canada. In the United States, I am told it is VERY difficult to sue your own Expert Witness. Even so, they can try. My advice: Get a large retainer before going to trial just in case you get the blame.
Click Here.
Alleged Hired Guns in Canada
Another story out of Canada that is germane to the US. A psychiatric expert witness was chastised by the judge for working primarily for insurance companies and for offering "biased, invented evidence in the “guise” of being a medical expert." Unfortunately, this criticism came after the verdict. Perhaps Canada needs a little Daubert action. Click Here.
Appeals Court in Texas Affirms: No License Needed for Engineering Expert
An industry electrical engineer (license exempt) for 20+ years in Texas was hired as a plaintiff's expert. The trial court excluded him because he was not a licensed engineer. The same thing happened in Alabama almost 20 years ago. The appellate court overturn this ruling because a license or a degree was not necessary to be named as an expert witness. This is a situation near and dear to my heart. Fortunately, courts are finally getting it right!!! Click Here.
The "Buzz" in AZ is that Judges Make Prosecutors Provide Expert Witnesses to Prove Impairment by Marijuana
File this under the "Rules of Unintended Consequences." Arizona passed a law allowing medical marijuana. However, the law does not "smoke" out the limits of tetrahydrocannabinol (THC) in the blood to cause impairment. The prosecutors are afraid that this requirement would "bogart" their limited funds. I could continue, but I will not "drag" on. Click Here.
Unlicensed Public Adjuster Uses Frustrated Artists in Florida
Apparently, an unlicensed public adjuster in Florida is providing some unusual help to folks with water damage insurance claims. The unlicensed PA is accused of hiring artists to paint water stains in properties where the owners have made a property claim. I am sure the property owners had no idea this was occurring. Click Here.
Professor Routinely Used as Prosecution Expert Witness Accused of Allowing Exam Cheating
This is a great example of where one aspect of your professional life will affect another. Apparently, a college professor who was used as an expert witness allowed one group of students to cheat on exams while not letting others have the same consideration. This person was made a professor, in no small part, because of trust. If this person cannot be trusted in this professional capacity, how can this person be trusted in others. We all should think about these things. Click Here.
University of Toronto in Canada Providing Course in Forensic Engineering
For the first time in Canada, the U of T will provide a forensic engineering course, and subsequent certification, to upper level undergraduate students. This is great news. However, I caution those who recently received their BS degrees who think they are going to jump into the world of insurance and litigation. In my humble opinion (IMHO) "expert witnesses" who do not know what motor oil smells like, or never built or designed anything in the real world have a credibility problem in the legal world. Please read the whole story. Click Here.
BIG Insurance News for Alabama Property Owners
I am a big supporter of the Insurance Institute for Business & Home Safety (IBHS). Particularly, I wholeheartedly support their building standards for building FORTIFIED structures. The Alabama Department of Insurance has now established discounts for people who build using the FORTIFIED standards. IMHO...Don't build GREEN buildings; BUILD FORTIFIED BUILDINGS!!!
Not Keeping "Up to Date" a Problem for PhD Expert Witness
An expert witness in Ohio is having problems because this person could not answer simple questions regarding the National Fire Protection Association (NFPA) standards involving arson. This person is "not up to speed" says adverse council.
Frye is Dead in DC
The DC Appellate court was the first to adopt Frye as the standard for evaluating expert witnesses. Daubert is now the standard.
Click Here.
Judge: "Show me the Experts!!!"
A judge in a Lipitor case has given the plaintiffs involved numerous opportunities to provide expert witnesses to show how they were adversely effected by this drug. They could not.
Click Here.
Kentucky Boards Revamped After SCOTUS Decision
More fallout from the Federal Trade Commission v. North Carolina Dental Board decision. Governor Bevin hopes to make changes "that will safeguard board members and encourage a more efficient system for shaping and reviewing industry regulations.” IMHO, all professional board members throughout the US should be expecting changes.
Click Here.
Expert Witness: Waiver of Work Product Privilege
While the Supreme Court of Missouri has not been addressing the proper admission of expert witness testimony, they have been working on other things involving expert witnesses.
Click Here.
Ireland Moves to Clampdown on the Excessive Use of Expert Witnesses
The courts of Ireland are considering the "clampdown" of expert witness usage.
Click Here.
Ipse Dixit "Because I Said So" Repackaged As "Weight of Evidence"
This article lays out how, "Because I said so" is just as unreliable as "The weight of the evidence" argument for plaintiff attorneys.
Click Here.
New Development in Missouri Regarding Daubert!!!
In an effort to remove the state of Missouri's moniker as a "judicial hellhole," a MO special committee has moved a bill out of committee and to the legislature for a vote on making Daubert the expert witness standard. Should the Daubert standard become the law of MO, only Virginia, North Dakota, and Nevada remain as "non-Daubert" states.
Click Here.
The Latest Fallout From Super Storm Sandy Engineering Report Shenanigans and General Tomfoolery
A project manager for HiRise Engineering, PC has plead guilty to altering the original engineering reports involving properties damaged by Super Storm Sandy. An administrative functionary gets his due.
Click Here.
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Coffee Talk: Do You Have Something to Add?
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Is there a Forensic Engineering topic you wish to write about? Is there something bothering you so much that you feel the need to write about it? Here is your opportunity to share your ideas with the hundreds (almost thousands) of OFI readers. Please submit your article in Word format to mutual@bellsouth.net.
Assuming your article is germane, professional, and fit for family
reading, the only changes made will be spelling and grammatical corrections. The editor of OFI reserves the right to determine if any submission to OFI furthers the interests and knowledge of Forensic Engineers and the professionals who hire them. Please call me if you have questions about your article. I look forward to seeing your work.
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(Read this as if you were telling a bedtime story to a child.) Did you know, boys and girls, that there are those who provide questionable expert witness testimony? Did you know that a growing source of expert witness work is coming from Craigslist? It's true!!! With very little experience and no credentials of any kind, you can be coached/trained to be an expert witness in less than an hour. Better yet, the more money your testimony gains for your client, the more money you make. It's that easy!!! As the ad states, "Great starter gig for someone wishing to make money as an expert witness." Click Here to see the ad.
In all seriousness, In My Humble Opinion (IMHO), this is bull feathers. This is unethical and a scam on so many levels. For instance, it is unethical for expert witness to be paid as a percentage of the recovery (contingency). And, the people paying for this ad are taking advantage of those in financial trouble. There are other levels wrong with this.
You've heard of "Truck Stop Sushi." The term "Craigslist Expert" leaves the same taste in my mouth.
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I have the privilege to work with many great forensic experts in the United States, Asia and Europe in the fields of Accident Reconstruction, Electrical Failures, Mechanical Failures just to name a few disciplines. Please allow me to refer to you one of these court tested experts for your next insurance claim or legal matter. There is no charge to you. I do not get a finders fee from anyone. This is my way of helping you. Plus, I can help my Forensic Engineering colleagues. Please
email me
or call 404.395.7441.
Note:
No warranties, expressed or implied, are made to the suitability of any expert referred to you. Do your homework to make sure you have the right expert.
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Richard A. Rice, PE is President and Forensic Engineer for Mutual Engineering, Inc. - MEI. Because of 30 years of continuous civil/structural design services, and his early and continued exposure to his friends and families many construction businesses, Mr. Rice is uniquely qualified to provide Civil/Structural Forensic Engineering services to the insurance, legal, and construction industries. Services include building design and construction, roadway design and construction, building inspection and code compliance, building/foundation collapse, construction site incidents, and other property loss subjects. Mr. Rice is a licensed professional engineer in several states, and a Fellow and Board Certified Diplomate of the National Academy of Forensic Engineers (NAFE).
Mr. Rice has written a novel and numerous technical articles published in professional journals for NAFE, the National Association of Subrogation Professionals (NASP), and the Georgia Defense Lawyer Association (GDLA). Please call/email Mr. Rice or visit his company's webpage:
Richard A. Rice, PE - Civil/Structural Engineer
Mutual Engineering, Inc. - MEI
(Office): 770.210.6644
(Mobile): 404.395.7441
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Dr. Christine Jesup was a respected and loved obstetrician in the Low Country of South Carolina. Everything was good until tragedy struck. The ambulance carrying Dr. Jesup and her pregnant patient crashed on a defectively constructed road. Attorney Cephas Hampton, along with his forensic engineering expert, fight a corrupt road builder and an incredulous insurance company in an effort to help Dr. Jesup...to be made whole again.
"...to be made whole again"
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