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Richard A. Rice, PE - Editor
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Thank you for supporting Omnia Forensis Ingenariae. As editor of OFI, it is my privilege to share with you the news and publications I have gathered to help forensic engineers and the people who rely on them. Please let me know if you would like to see something added that would further the knowledge of us all.
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Quantum Experts, sometimes known as Quantum Analysts, are in the news. It seems that I have been one several times and did not know it. One definition of a Quantum Expert/Analyst is someone who can accurately determine the amount of damages to a party. Often, Quantum Experts/Analysts are used in construction disputes, but are also used in patent disputes among others. The "In the News" section contains an article involving a panel discussing Quantum Experts/Analysts, and a paper on the qualities of one.
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President Donald Trump has nominated Neil Gorsuch to the Supreme Court of the United States (SCOTUS). From all indications, Judge Gorsuch is much like Judge Antonin Scalia was when it came to Daubert...by the book!!!
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The good people at the National Association of Subrogation Professionals (NASP) have asked me to speak at the NASP 2017 Subrogation Litigation: Skills and Management Conference in Scottsdale, AZ, April 27-28, 2017. I have accepted this honor and will be offering a presentation entitled, "Roadway Construction Defects: Hydroplaning and Other Dangerous Conditions." The presentation is geared toward helping subrogation professionals know whom to call on after a roadway incident. I will be speaking Friday, April 28th at 2:15pm. Go to subrogation.org to see all the speakers and to register. If you are already signed up to attend, please let me know so I can thank you for watching my presentation.
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Sometime this month the National Academy of
Forensic Engineers (NAFE) should fully rollout their presence on LinkedIn. Membership to the NAFE LinkedIn group will be available to "practicing engineers, NAFE members, attorneys and insurance professionals to learn from each other." Stay tuned!!! In the meantime, please check out NAFE at 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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Quantum Experts/Analysts
Determining damages as an expert is an exhaustive process that requires someone to wear many hats. Click Here for an article that covers a panel discussion on the use of Quantum Experts/Analysts who do this difficult work. Click Here for an very interesting paper on the qualities of a Quantum Expert/Analysts you should be looking for.
Judge Neil Gorsuch and Daubert
The author of a National Law Review article would lead the reader to believe that Judge Neil Gorsuch as an associate on the SCOTUS would be very thorough and by the book when it comes to Daubert challenges. The future will tell.
Click Here
"Hire Your Experts Early" says the CA Supreme Court
Plaintiff's attorneys decide to hire/disclose experts AFTER summary judgement. The California Supreme Court said that this was not to be. I can't help but think that the plaintiff's attorneys tried to get by "on the cheap" by not hiring experts for their case. Remember, ladies and gentlemen; when it comes to hiring experts...hire them early and hire them often.
Click Here
More Fallout from Florida Supreme Court/Daubert
There has been much press regarding the Florida Supreme Court's decision to reject the Daubert standard. Here is a great article from the National Law Review on the subject.
Click Here
St. Louis, MO a "Judicial Hellhole"...Why?
Past articles in OFI refer Missouri, and specifically St. Louis, make reference to these places as "judicial hellholes" because of the way the judges have allowed plaintiff's experts with questionable opinions sway juries into extremely large plaintiff verdicts. Here is an article explaining the beginnings of the "hellhole" moniker, and what is being done about it.
Click Here
NEWS!!! NEWS!!! NEWS!!!
Missouri is Now a Daubert State!!!
During the last week in March 2017, Governor Greitens of MO signed into law the requirement that judges use the Daubert Standard for expert witnesses.
Click Here
From the "Truth is Stranger than Fiction" Department
The federal government and several land owners dispute the actual cost of the land the government wants for a wind farm. Disputes between the federal government and land owners are common. What is not common is that the federal government hires a PhD, Massachusetts Institute of Technology (MIT) economists who conveniently forgets to disclose his professional articles/papers supporting Marxist/Communist economic ideals. Wow!!! As the author of this article implies, when NINE figure dollar amounts are at stake, take a little time to REALLY know your expert.
Click Here
Scientific/Engineering Certainty at Issue
"To a reasonable degree of engineering/scientific certainty" is a phrase many experts have used in the past. The National Commission on Forensic Science has recommendations regarding this phrase in our legal system.
Click Here
Public Adjusters as Expert Witnesses? Not in Pennsylvania!
As most of us know, a Public Adjuster (PA) works for a percentage of the settlement between the PA's client (the Insured) and the insurance company. This is nothing new. However, an insurance company recently pushed back when the PA was acting as an expert witness on behalf of the Insured. Just like the National Society of Professional Engineers Code of Ethics says no to engineering experts working on contingency, the Pennsylvania court said no to Public Adjusters as experts working on contingency.
Click Here
More Fallout from FTC v. NC Dental Board SCOTUS Decision
The Governor of Mississippi recently sought the power to change or veto any regulation created by the over 100 professional boards in the state. The bill died in committee. As you may remember, the SCOTUS sees these board members as "non-sovereign players" that are not protected by the governmental immunity. This is not over is MS. There will be more fallout.
Click Here
Judge Throws Out More "Ipse Dixit" Opinions
The phrase "Ipse Dixit" has come to be known in the legal world as the "Because I said so" opinion that experts give when there is nothing else to support the experts assertions. A judge in Indiana did not fall for it.
Click Here
The Mudano Rule: Same Side Experts Must Agree
We learn something new all the time. What may seem obvious is the Mudano Rule. Basically, the courts have defined this rule, with regards to plaintiff's experts, that "there must be no absolute contradiction in their essential conclusions." To me it seems important that the attorney makes sure that his/her experts are on the same page with regards to important opinions.
Click Here
So You Don't Want to Pay for the Other Sides Expert Opinions?
The evil desire to want the labor of another without paying for it is very strong. A Civil War and an amendment to the United States Constitution (13th) are just a few responses to this evil. Yet in the 21st century, there are those (i.e. a few attorneys) who believe forensic engineers should share their labor and knowledge for free. Shame on them and the judges who forget the law. Attached is an article involving a forensic engineer who had to deal with such a situation.
Click Here
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Coffee Talk:
Dr. Ellis L. Armstrong, PE (Part I)
One of my best friends and closest colleagues in the world is Jeffrey D. Armstrong, PE (lower picture). As it turns out, and with no real surprise, Jeff is the grandson of one of the most famous civil engineers in the 20th Century: Dr. Ellis L. Armstrong, PE (upper picture).
Dr. Armstrong's engineering work on the worlds most famous roads, dams and bridges, and the awards received for this work, make him a legend in the engineering world. While Dr. Armstrong may not have known it at the time, his investigative work on some of the most spectacular dam and bridge failures (caused by others) made him one of the first 20th century forensic engineers. It is no surprise that Jeff has followed in his grandfather's footsteps.
With Jeff's permission, OFI brings you a transcript of one of Dr. Armstrong's speeches. This particular speech was to the National Civil Engineering Fraternity - Chi Epsilon. The speech is entitled, "Civil Engineering - The Ideal Profession." While there was an understandable bias towards civil engineering in this speech, the importance of all engineering disciplines to the betterment of mankind was a constant undertone. Click Here. Another speech by Dr. Armstrong will be offered next month. Stay tuned!!!
Side Note: My maternal grandfather's name was also Ellis. Coincidence?...I think not!!!
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Did you know that many engineering firms have "engineers" who are sent out to perform forensic engineering inspections that do not possess a professional engineering (PE) license in any state? While many possess engineering degrees but no license, a large national forensic engineering firm once used a non-engineer/retired sports pro to perform forensic engineering inspections.
Use of Engineering Interns
The use of recently graduated engineering Interns is extremely vital in the less contentious and less adversarial "design world." It is in the "design world" where engineering interns learn the skills, and gain the knowledge to be licensed engineers. However, in the "legal world" where things are very adversarial, one must ask: Is it wise to send an Intern to perform forensic engineering inspections? In my opinion, in most cases it is wise to ONLY send a PE on an engineering inspection involving an insurance/legal case. Should the case goes to trial or arbitration, whose testimony will have more weight: the engineering intern/non-engineer, or the licensed PE who is bound by ethics, laws and cannons? There are instances where electrical/HVAC or other seasoned trade technicians are sent out to gather facts for the PE to use to generate opinions. However, is this practice going to survive what appears to be a market trend?
A Case In Point
An insurance company recently rejected 20+ engineering reports from one forensic engineering firm because non-licensed engineers performed the onsite inspections. But, the reports were signed off by the manager with a PE license who was not part of any onsite inspections. The insurance company upper management were afraid that a judge would find the insurance company guilty of fraud by accepting these reports. Given the court decisions regarding fraudulent forensic engineering reports involving the Northridge Earthquake in California, Super Storm Sandy, and Hurricane Katrina, it is not surprising that insurance companies and insurance policy holders are holding forensic engineering investigations and reports to a higher standard.
In Closing
The trend for a higher standard for forensic engineering investigations and reports is upon us. Please share any instances where your company/law firm has a policy regarding the use of only licensed PE's for onsite forensic engineering
investigations. Your policy will be published in OFI and on social media so others will learn. Also, please share any articles, claims or cases where the use of non-licensed personnel was an issue. Click Here to send your submissions.
Thank you for taking the time to share.
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What do you think? If you are a Lawyer or Adjuster, please take the following poll.
Note: If you are not a lawyer or adjuster, or vote more than once, your vote will be removed from the tally. The results will be published next month. Thanks!!!
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Should non-PE's investigate forensic engineering matters for PE's to sign off on later?
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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"
is available now. Please
Click Here for your copy.
Amazon Book Reviews:
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Dr. McMillian -
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"Interesting Read"
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