Engineering immunity

August 2012 » Columns » COMMENT
Daniel A. Cuoco, P.E., F.ASCE

In this month's letter sent by Gregory S. Baker, in response to Rich Weingardt's article in our June issue, Mr. Baker recounts his experience as a defendant in a frivolous lawsuit. He was unable to get dismissed from the suit because of the "Affidavit of Merit' produced by the plaintiff's expert witness. Mr. Baker's statement that he has no recourse against the expert if the affidavit was fraudulently produced is correct.

Unfortunately, the problem of having no recourse against an unethical expert, at least in the United States, is not restricted to Affidavits of Merit – it also applies to expert reports and testimony at depositions, arbitrations, mediations, and trials. Some of us have interacted with so-called experts who are essentially "professional testifiers' who concoct theories having no technical merit for the benefit of the party they represent, often at the urging of that party's lawyer.

It is not unusual for several engineering experts to offer different opinions regarding the same issue, especially if these experts are representing different parties in a lawsuit. This is not patently improper since it is sometimes possible to interpret data in different ways, thereby resulting in different conclusions. However, it is important that the engineer arrive at his/her conclusion in a manner that is consistent with sound engineering principles, as opposed to fabricated theories.

In the United States, once an engineer is designated as an expert witness, that engineer is immune from legal recourse and thus not accountable for his/her statements, even if completely wrong. The reason for this is that the witness should not be afraid to offer his/her expert opinion. Unfortunately, some engineers take advantage of this by inventing implausible theories to benefit their clients. Others take advantage by conducting protracted investigations and calling for repairs that are overly conservative and thus unnecessary, which delays the project but generates hefty fees for the expert. These individuals are an embarrassment to our profession.

When faced with conflicting reports from experts representing various parties in a dispute, some owners will bring in a third party engineer to evaluate all of the experts' positions and render an independent opinion. It is important that each of the parties agree with the selection of the third party engineer so that there is less likelihood that the third party engineer's opinion will be challenged. The parties can agree beforehand whether the conclusions of the third party engineer will be binding on the parties. In the several cases that I have served as a third party engineer, settlements were reached and costly litigation was avoided.

If a structural engineer makes a design error that results in a significant burden on one or more parties involved in a project, that engineer must deal with the consequences. If an expert's report or testimony is deemed to be erroneous and results in a significant burden on one or more parties involved in a dispute, that expert should have to deal with the consequences.

It is incumbent upon the engineering community to establish guidelines for the proper ethical conduct of engineering experts, with some mechanism for enforcement, such as through the engineering licensing boards, and with appropriate penalties for improper and misleading testimony.

Daniel A. Cuoco, P.E., F.ASCE,
dcuoco@zweigwhite.com

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