Engineer as Expert Witness

 Definition of an Expert Witness

According to USLEGAL.com the definition of an expert witness is as follows:

“An expert witness is a witness who has knowledge beyond that of the ordinary lay person enabling him/her to give testimony regarding an issue that requires expertise to understand.”  USLEGAL goes on to explain,  “Experts are allowed to give opinion testimony which a non-expert witness may be prohibited from testifying to.  In court, the party offering the expert must lay a foundation for the expert’s testimony. Laying the foundation involves testifying about the expert’s credentials and experience that qualifies him/her as an expert. Sometimes the opposing party will stipulate (agree to) to the expert’s qualifications in the interests of judicial economy.”

Practitioner Seminar

Mike Drerup, P.E. of Walter P. Moore just delivered a great practitioner lecture on the topic to students in the AE 537  Building Failures class in architectural engineering at Penn State.  His lecture is a must see if you ever get the chance to attend one.  In addition to covering terminology such as “standard of care”, depositions, chain of custody on evidence, etc., Mr. Drerup discussed the role of the expert witness in three major categories.

  • Professional Practice
  • Business
  • Technical (Science & Engineering)

The lecture was all summed up and tied together through the use of two case studies to illustrate the process and to demonstrate the scope of effort and scientific study required for many forensic investigations.

ASCE TCFE Guidelines

In terms of guidelines related to the practice of forensic engineering for buildings and infrastructure, the topic is well covered in the publication Guidelines for Forensic Engineering Practice  (Guidelines) by the Forensic Engineering Practice Committee (FEPC), Technical Council on Forensic Engineering (TCFE) of the American Society of Civil Engineers (ASCE).

The Guidelines are organized into five general topics of forensic engineering.

  1. Qualifications: addressing commonly accepted education and requirements for forensic engineers.
  2. Investigations: illustrating the typical aspects of physically carrying out a forensic investigation.
  3. Ethics: discussing guidelines for the ethical behaviors of the forensic engineers.
  4. Legal: providing a brief overview of the court system as it applied to the construction industry.
  5. Business: relating the non-technical management side of forensic engineering practices and the marketing of forensic engineering services within an acceptable ethical scheme is encouraged.

An excellent follow up article on this topic authored by Robert T. Ratay was published in Structures magazine and can be downloaded using the link below:

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27 Responses to “Engineer as Expert Witness”

  1. ktennant
    November 9, 2011 at 5:16 pm #

    I would like to thank Mr. Drerup for his informative lecture on the legal side of forensic engineering. I would have to say I would rather be on this side and supporting the truth and facts rather than fighting to help a client win specifically. One of the more interesting things I found about the lecture was the fact that proposing opinions of what you think may of happened in your field notes are a bad idea. That along with the fact that it is important to keep your work and notes clean in case at some point down the road you need them to defend yourself and your decisions in court. Also I found it interesting and scary how much strength was lost when the wood truss for the nursing home was fireproofed. I wonder if there are many other such dangers lurking in wood truss buildings.

    Also I liked Tim’s point about the type of atmospheric conditions during material installation. Contractors are always looking to save time so I am sure the weather sometimes takes a back seat. If weather conditions are going to be an issue with performance then manufactures should make sure to emphasis it.

    • mkev
      November 9, 2011 at 9:01 pm #

      Good point about the dangers that may still be lurking. Each year we hear about a few of these old cases surfacing. Most of the firetreated trusses have likely been found as the bad ones won’t make it through the heavy snow years. That said, a few years ago I looked at some condo roofs that were supposed to have been remediated for fire treated plywood and we still found some sheets in place, most likely due to carelessness in removal or difficulty of access. It is not extremely rare, however, to have an older building with deficiencies that manages to go for years until just the right combination of events or loads like snow drift push it over the edge.

  2. Raffi K
    November 9, 2011 at 3:31 pm #

    Thank you to Mr. Drerup for presenting your lecture on being a professional engineer handeling the law aspect of this field and a witness for a case not involved in. What really got me interested is the “game” aspect where you refrain from saying all the information provided or even downplay an evidence to get your point accross. In fact, nothing is true untill proven in court no matter what the issue is. Hence, the evidence in hand is only ammunition in the hands of the lawyers and attorneys and only they can choose which is the most effective for their target and which makes them vulnerable.
    It is true that not everything is in favor of your client however what if your client was wrong and to be blamed for what happened. I think here where the engineering ethics come in to play. In my opinion, if there is something wrong dont defend it and step down from that position even if the client is the target.

    • mkev
      November 9, 2011 at 8:53 pm #

      Not everything is always black and white in these issues. Two qualified engineers / experts can legitimately disagree on cases especially when the issue is very complicated. Also, consider the situation where your client may have been in error in some way, BUT the charges against them have been expanded to include items that are not their fault. I have worked on cases where I have indicated that my client is responsible for claim number 1, but not the other three as an example. So, you admit fault on one and work hard to present the facts on the other charges.

  3. DaveT
    November 8, 2011 at 3:59 pm #

    Mr. Drerup’s lecture was extremely enlightening and enjoyable. The discussion on the process of presenting information and data in a completely objective light and walking the line on ethics was a real eye opener.

    My biggest take away from the lecture is how every aspect in a case from the “expert” to the way information is provided can be scutinized to the most minute detail. It seems like anything can be disputed and if presented in a manner that allows for second guessing, it can be thrown out. This just shows how careful an engineer has to be when working in the field, regardless if he or she is doing design or forensic work because at any moment you can be summoned to court.

  4. MVandersall
    November 8, 2011 at 12:59 am #

    Thank you to Mr. Drerup for presenting your lecture on being a expert witness as a professional engineer. I found it interesting to note that Mr. Drerup pointed out that having a PE licence does not mean that you are a competent engineer, only that you have met the requirements to hold a license, to practice in your field, and that you are legally responsible. Because of this, a judge can still deny you as an expert witness for the case. It is also important as an expert witness to present the facts as they were found and investigated. It is dangerous to be sympathetic toward your client since it could quite possibly hinder your ability as the witness to present a balanced and fair case.

    • mkev
      November 9, 2011 at 8:45 pm #

      You are correct. You have to stick with your findings. In the big picture, your attorney would rather find out from you where the case stands in advance rather than hear it for the first time from the opposing side in court.

  5. cdipaolo
    November 7, 2011 at 11:53 pm #

    Everyone of my classmates put it nicely when they referred to the difference between lawyers and engineers code of ethics. Mr. Drerup gave a great presentation on being an expert witness. The one part of his lecture I enjoyed was that he was so personable. I think many people overlook the way an expert witness needs to be able to talk to an audience with no engineering experience at all. I think that being an expert witness needs to have that rare balance of being exceptional in your field and also easily coming across well to a jury. Mr. Drerup also emphasized building the correct expert team. No one is an expert in everything, but with the right people with the right expertise you can provide expert witness testimony.

  6. TEmmick
    November 7, 2011 at 7:47 pm #

    I found Mr. Drerup’s presentation to be very informative and enjoyed the case studies he presented. He made some interesting points about the responsibility of an engineer as an expert witness to provide only the facts and truth, and not offer opinions when it comes to issue at hand. He also presented a situation where he wasn’t necessary an expert on the topic but was able to consult with other professionals to determine the root causes of the issues. With his experience and the participation of the other professionals, only he was called on in court to testify as the sole expert witness based off the collaborative team findings.
    The case study involving the floating wood floor, Kyle made a very good point about leaving gaps or expansion joints at the edges of the floors to allow the floor to move without restraint. The picture presented in class, looked as though the flooring was cut flush with baseboards, however, Mr. Drerup indicated the installation was done properly per the manufacturing specs. I was interested to know if they ever determined the environmental conditions at time of install. When installing hardwood floors, it’s best to bring the flooring into the dwelling where it will be installed and let it sit for a couple days so it’s moisture content normalizes to the surrounding environment. I’ve had issues with hardwood being installed on a hot and humid summer day in an air conditioned house where a week later there were gaps at the end joints due to the wood drying out and shrinking. This is easily avoided by allowing the wood to acclimate itself to the house prior to install.

    • mkev
      November 9, 2011 at 8:38 pm #

      Good point T. I almost had the opposite problem from the case study discussed. We contracted for hardwood in our family room during the winter. The installer delivered the and partially unbundled it a few days before the install. It was in the family room with our fire place and after the first evening I realized I was “cooking it dry”. Lesson learned. No fires for a few days and kept an eye on the humidity.

  7. BRose
    November 7, 2011 at 1:08 pm #

    I would like to thank Mr. Drerup for the exceptional presentation and for describing the witness stand side of forensic engineering.

    After a quick search on the ASCE databased, I was able to find another great article about being an engineering expert witness. The article, entitled “How to be an Effective Expert Witness” and linked below, talks about much of the same things that Mr. Drerup put forth in his lecture.

    http://scitation.aip.org/getpdf/servlet/GetPDFServlet?filetype=pdf&id=ASCECP000371041114000020000001&idtype=cvips&doi=10.1061/41114(371)20&prog=normal

    The author, Kenneth Goodwin, also describes how to be a creditable expert witness your primary source of income should not be from rendering expert opinions in court. An engineer should continue to practice engineering to some degree. If the engineer has a history of being hired by one type of client or corperation, opposing lawyers may argue bias or that your opinion is not independent.

    • CadellC
      November 8, 2011 at 2:41 am #

      Thank you Mr. Drerup for the informative presentation. It is nice to know now that as an expert witness, you are about the truth of the evidence and not as an advocate of the client.

      After taking a look at the article above, I looked into the different tests to determine the admissibility of expert testimony into a trial. Starting on page 175 of the article, it discusses how the Frye test and the Daubert test are used to determine admissibility of expert testimony. By rudimentarily researching these tests on Wikipedia, I learned that the Frye test is used in certain states while the Daubert test is used in all federal courts.

      The Frye test sets the basis for using expert testimony based on scientific technique in courts if the technique is generally accepted by the scientific community. The Daubert test goes a step further and at the discretion of the trial judge, an expert testimony based on experimental techniques that may not be generally accepted by the scientific community may be used in the trial.

      Through the research, I found that Pennsylvania still uses the Frye test.

      On a final note, the expert witness according to the article is the only witness able to render an opinion to help the judge or jury determine fault. It is this opinion that must be based on scientific techniques and these techniques are what come under scrutiny through the Frye and Daubert tests.

    • mkev
      November 9, 2011 at 8:30 pm #

      Another good article that makes some of the same points that you and others have made in this discussion was published in the most recent issue of Structures magazine. It can be publically accessed at http://www.structuremag.org/article.aspx?articleID=1352

  8. Nicole
    November 7, 2011 at 10:13 am #

    Mr. Drerup’s presentation about the expert witness service was very informative and interesting. I was particularly interested when he was defining a standard of care. According to the Structural Engineer’s Standard of Care by Joshua B. Kardon, “the concept of the standard of care is described as the line between negligent and non-negligent error.” Mr. Drerup informed us that the jury defines what the standard of care is and whether an engineer has achieved that level of performance. This is difficult to clarify by the jury alone; therefore people who are qualified as experts say their opinions of the standard of care and the engineer’s performance relative to the standard.

    I found some case studies that demonstrate this process on the Online Ethics Center for Engineering and Research. It was in the:

    The Structural Engineer’s Standard of Care
    Author: Joshua B. Kardon, S.E
    http://www.onlineethics.org/Topics/ProfPractice/PPCases/standard_of_care.aspx

  9. JennyT
    November 6, 2011 at 9:09 pm #

    I thought the lecture given by Mr. Drerup was very informative and thoroughly covered the different aspects of being an expert witness. The one aspect that I thought was important was how often Mr. Drerup brought in other professionals to create a team of expert witness. I had always assumed that the expert witness just acted as an individual on a case, which is not always true. Additionally, I think this stresses the importance of not trying to be an expert in all fields. The use of a team can help strengthen a case argument while making sure that individuals are not leaving their area of expertise.

    • mkev
      November 9, 2011 at 8:00 pm #

      It really is not unlike a regular building project in that aspect. You likely will rely on the expertise of a geotechnical or soils engineer to advise you on the recommended bearing capacity for your foundation design. The same may be true for a legal case and the team may consist of a contractor, estimator (for repair costs) etc. to enable a conprehensive report or study.

  10. BDick
    November 6, 2011 at 2:32 pm #

    I have always been interested in the legal side of engineering. I thought Mr. Drerup’s lecture was so interesting and really informative. It made me realize that there is so much at stake when you call yourself an “expert” and provide your thoughts on a subject.

    I thought the most important thing I learned from the lecture was how much documentation is required during forensic work. The chain of evidence is extremely important and if compromised can lead to a dismissal of a case. Each step and piece of evidence has to be documented and possibly photographed to show proper care and retention of evidence. I assume this can be exhausting when there are cases with a lot of evidence.

    I also thought that it was a great idea for Mr. Drerup to differentiate between the role of the lawyer and the role of a forensic engineer since their priorities differ. Forensic engineers are only supposed to present facts and duductions from evidence and research. They can not be biased toward one party or another. A lawyer on the other hand, has to represent their client to their fullest ability. So in a legal case, these two parties treat the situation slightly different.

    • mkev
      November 9, 2011 at 7:57 pm #

      That is true about the differences between the attorney and the engineer. It becomes an interesting dynamic to work with attornies under those circumstances. Most attornies are very reputable and they understand how it must work. Occasionally you may find one who wants to push the edge of the boundaries. It sometimes results in turning down the case. You are the one who will be on the witness stand.

  11. CBehm
    November 6, 2011 at 11:12 am #

    Mr. Drerup’s “Expert Witness” lecture discussed the role of an expert witness surrounding a trial. He made an point to emphasize this is not an easy role to take on as an engineer, but years of practice in testing, inspection, and design will help prepare an engineer for the job.

    The article Professor Parfitt posted paralleled Mr. Drerup’s statements. Being well-rounded seems to be the main characteristic an expert witness needs to possess. To quote the article, “An engineer’s success as a forensic expert consultant/witness is the result of… hand’s-on experience in analysis, design, construction, testing, inspection, condition assessment and troubleshooting…” So, becoming an expert witness is not something that happens over night. After years of practice, an engineer will be able to pursue that career if they so desire. Taking a few introductory legal classes along the way would probably help too!

    • mkev
      November 9, 2011 at 7:53 pm #

      Legal classes probably would help. They don’t have to be at a law school however. Many professional societies offer seminars for engineers practicing as expert witnesses and you can often find a few at the major conferences. There were a couple of good ones related to this topic at the 2011 ASCE Structures Congress for example.

  12. RDalrymple
    November 5, 2011 at 1:58 pm #

    I would like to thank Mr. Derup for coming to class to give us this lecture. I learned a lot about the engineer’s job as an expert witness, which will probably be very important to know as a practicing engineer. I find it interesting that in a trial, the engineer’s qualifications and credentials are explained and that being qualified as an expert is a very legal term. It would be very nerve racking being up on the stand when they are deciding whether or not you are truly an expert in subject matter of the case. This would especially be challenging when the opposing lawyer is trying to discredit you in any way that he can.

    • mkev
      November 9, 2011 at 7:50 pm #

      Most of the time the challenge, or at least the groundwork, takes place during the deposition. Thats not to say that it isn’t still stressful or nerve racking as you note. After an extensive deposition, the opposing attorney may “stipulate” that they accept you as an expert. One reason for this is that to extensively “attack” the expert on qualifications in front of the jury can sometimes backfire because the jury may feel it is unnecessary. That doesn’t mean you won’t get some questions on qualifications but you may already have an idea of what is coming. And, for sure, you will still get tough questions but they will focus on the facts of the case and your investigation.

  13. JProgar
    November 5, 2011 at 1:03 pm #

    Mr. Drerup’s lecture outlined some very interesting points on being an expert witness along with the ethics and responsibilities of their role in the litigation process. The ethical responsibility and the need to be limited in the advocation of the engineer’s opinions and not feelings towards a particular failure were very interesting topics that aren’t discussed often as they are more specific to forensics. I found the expert witness’s dual role or dual responsibility to the judge & jury and also their client a very interesting dynamic.

    In the article that Professor Parfitt shared with this post, it explained this dual role just as Mr. Drerup had touched on in his lecture. The expert witness must adjust to two audiences that require different levels of technical detail in their testimony or evaluation of a failure. It is the expert’s obligation to present his or her findings to the judge and jury in a simple way that allows them to understand the complicated technical subjects that generally the public does not have a great depth of knowledge in.

    On the other hand, it is also the expert witness’s duty to assist their client, in a non-bias way, by presenting his or her investigative findings to an attorney in very technical detail to help build their case. The ability to communicate effectively in each role is a skill that cannot be easily obtained and must be developed with experience.

    I want to take this time to thank Mr. Drerup for presenting a fascinating lecture on the legal side of the industry and also doing so with an energy, that as Nate explained, showed his excitement and enjoyment in his work.

  14. NBabyak
    November 4, 2011 at 9:07 pm #

    Mr. Drerup’s lecture was a great inside look into what goes into being an expert witness. It was great to see someone so passionate about the work they are doing. During the lecture, it was very clear that Mr. Drerup enjoyed what he was working on and I’m sure that helps him have success in the investigative work he does.

    The biggest thing that I took out of Mr. Drerup’s lecture was how important engineering ethics are when you enter the indstry. You have to be well aware of your own competence level and always focus on the facts of investigation. While an attorney acts as the client’s advocate and is always focused on doing what’s best for them, it’s important for us as engineers to realize that ethically we must present the facts of what we discover no matter how it affects our client. That may be one of the hardest things to remember because it’s human nature to want to win or be the best, but in this situation, the engineer only wins if they come to the correct solution to the problem no matter how that affects the case. So, as many of us begin our careers, we must remember to always use our best judgement and to consider the ethics of our decisions.

  15. MKostick
    November 4, 2011 at 2:40 pm #

    I really appreciated Mr. Drerup’s lecture. It really brought to light the legal side of forensic engineering, and reinforced the fact that someone is to blame for failure whether it be a defect, malfunction, or collapse.

    After reading the article provided by Professor Parfitt, I realized just how much is at risk by deeming yourself the Expert. By considering yourself the Expert you are automatically held to a higher standard than other practicing professionals, and could be sued for not providing a standard of care accepted by the client. The cost of such accusations could total more than the profit earned from the services provided to the client.

    The article provides some guidelines to help reduce your liability. Most importantly, one must have the proper qualifications to be an Expert. In addition, it is important to identify conflicts of interest or avoid them all together, and diclose any information that could be used against your credibility. (e.g. failed designs, licensing issues) One should also maintain proper documents and evidence, and keep the client informed of the progress of work. Ultimately, the article suggests stepping down as the Expert if you are not the proper individual for the role.

    There is a great deal of responsibility in accepting the position as an Expert. It would not be a role I would walk into lightly and without ample thought of the consequences.

  16. ZHott
    November 4, 2011 at 1:05 pm #

    Mr. Drerup talked briefly on the code of conduct of lawyers and how it differs from engineers. I found a list of from the Council of Bars and Law Societies of Europe (CCBE) code of conduct, while it is Europe standards, I can’t imagine it changes too much for the U.S.

    http://www.ccbe.org/fileadmin/user_upload/NTCdocument/The_Attorneysdoc1_121_1251980891.pdf

    Sure enough one of the codes of conduct is:

    “Faithfulness to the client is the attorney’s main duty…”

    Just as Mr. Drerup said.

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