Omnia Forensis Ingenariae 
"All Things Forensic Engineering"

News and Views for the Forensic Engineer and Their Legal/Insurance Clients

             Richard A. Rice, PE - Editor                  Edition II - September 2016                              mutual@bellsouth.net                                               www.mutualengineering.com

Editor's Thoughts
The many positive comments received since the first publishing of Omnia Forensis Ingenariae (OFI) are greatly appreciated.  It seems this newsletter addresses a niche where the interests of the Forensic Engineer and Attorneys/Adjusters intersect.  Again, thank you!!!

For the sake of fairness, let me first write that the vast majority of engineering reports I have reviewed by other engineers were found to be fair and reasonable. Many of these engineering reports were given to me by Insureds because an insurance company denied a property damage claim.  However, I have reviewed many engineering reports where it was apparent that the standards regarding a forensic engineering investigation were not known or completely ignored by the "forensic" engineer.  Not taking into consideration collateral damage/evidence of an incident, or completely ignoring relevant evidence are just two examples of forensic engineering malpractice I have observed.

Two articles in this month's edition of OFI are germane to this situation.  One involves the well known engineering report shenanigans from Super Storm Sandy.  The other is an older article regarding omitted roof damage evidence by myopic and eager to please engineers hired by insurance companies. 

Question:  Are we seeing the emergence of the "Insurance Engineer" as a tool to keep Insureds from fighting back, and is this emergence possibly causing the increased use of Public Adjusters?  Just a thought...

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Another topic near and dear to my heart is the requirement of some state licensing boards that Forensic Engineers coming into their state are required to have PE licenses in that state.  Over the years, many state boards have remembered (forcibly or otherwise) their civics lessons regarding the separation of powers doctrine in our US Constitution.  Judges, not licensing board members, are to be the gate keepers regarding expert witnesses (forensic engineering or otherwise); as it should be In My Humble Opinion (IMHO).  Now with the US Supreme Court decision in North Carolina Dental Board v. Federal Trade Commission on the books, all state professional licensing boards are having to be more careful.  Scroll down and read the articles in the NEWS section.

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Again, thank you.  If you have suggestions for OFI, please email me any time. 

Sincerely,

Richard A. Rice, PE
In the News...

Fallout from Super Storm Sandy Forged (Allegedly) Engineering Reports
You would think that changing the opinions (allegedly) of an engineer after the report is submitted would be generally understood as a bad thing, and that you (allegedly) were going to get caught doing it is  also a bad thing.  Apparently not (allegedly).  Click Here

Insurance Engineers Get Called Out!!!
Bruce Holmes in a 2006 article outlines the emergence of disturbing trend regarding the customizing of engineering opinions to the needs of the insurance company.   Click Here

Kicking Out the Other Side's Expert
All experts should be prepared to have adverse council try and have your testimony removed, or have you outright kicked off the case.  This article gives great examples of what an expert should not do to help adverse council.

California Appellate Court Confuses OFI Editor
I am confused.  From this article, we have..."the Court held that although the trial court has a duty to act as a “gatekeeper” in excluding “clearly invalid and unreliable” expert opinion, its role is not to choose between expert opinions."  So, juries are now going to determine expert testimony validity and reliability?  Really?

Judge Excluded Medical Doctor's and Epidemiologist's Testimony Because of Unreliable Methodology. 
Hiring an expert with a "MD" or "PhD" after their name does not guarantee success.   Click Here.

Drone Use on the Rise for Property Claim Investigations!!!
The use of drones has exploded in many industries.  Forensic Engineers are using them more and more in their investigations.  Drone use is almost to be expected on large property losses.  Read this article for the latest in drone regulations and property claims.  Click Here.

Ensuring Plausibility, Not Possibility
This is a great article about the word games I also have been asked to play at depositions regarding "possibility", "probability", or "plausibility."  Yes, it is "possible" that the sun will not come up tomorrow.  However, given my years of experience, it is "probable/plausible" that it will come up.
Here is a great sentence from the article:
Passion coupled with plausibility, however, is far more persuasive.

Have You Vetted Your Expert Witness Lately?
From across the pond, a story of how a prosecution expert was sacked when it was discovered the expert was sacked years earlier for being a dishonest police officer.  

NC Dental Board (NCDB) v. Federal Trade Commission (FTC)
State licensing boards, including engineering boards, are in the FTC's crosshairs.
A 2015 decision of the Supreme Court of the United States (SCOTUS) has made state professional board members nervous.  Apparently, the SCOTUS views state licensing board members as "nonsovereign actors" who are NOT protected from anti-trust actions against them.   Click Here for the full SCOTUS decision and commentary by others.
 
An Engineering Board Member's Commentary Regarding the NCDB v. FTC Decision
Glen Thurrow of the New Mexico Board of Licensure for Professional Engineers and Professional Surveyors (NMBLEPS) gives one board member's opinion on the effects of the SCOTUS decision.  One sentence stuck out:

Federal antitrust laws require compelling justification for any board action that in any way limit competition in the marketplace.

IMHO, Mr. Thurrow gives a good argument that design engineers need licensure to protect life and property.  However, if I may insert a Forensic Engineering issue, my reading of Mr. Thurrow's article tacitly supports my contention that the courts, not licensing boards, should decide who is qualified to be an expert witness.  Combine the  NCDB v. FTC decision with the Separation of Powers doctrine and the conclusion is clear:  Judges are the ONLY gate keepers (i.e. Daubert, Frye). 
What say you?
Click Here for Mr. Thurrow's article.  See Page 3.

Guest Writer - Jim Kelleher
Jim Kelleher had been a fixture in the national legal marketplace for almost 40 years. He started out marketing litigation support services way back in the days of MCI v. AT&T and since then, providing facility management services to law firms and professional service firms.  For the last 11 years, Jim has excelled at providing expert witness services to attorneys on both sides of the aisle. Jim founded Legal Metrix LLC in December of 2015 providing marketing support and ghost writing articles/blogs etc. for both legal and engineering clients.

Let me say that Jim Kelleher is one of the most plugged in people working in the legal field I have ever known.  For a non-attorney, he sure does know how they think, and how to help their cases.  Find Jim on LinkedIn to keep up with his insights.  Enjoy his article.
Coffee Talk:  Marketing the “Single Shingle” Forensic Engineering Firm to Attorneys
Click Here for the Article.  Thank you.
 
To contact Jim Kelleher:
LegalMetrix LLC
(224) 212-9191
Did you know...?
The Alabama State Board of Licensure for Professional Engineers and Land Surveyors (AL Board) allows Forensic Engineering work and testimony from any engineer or surveyor as long as they possess a professional engineering license from any other state.  To read the full text, Click Here.
From the Trade Rags!!!
The Claims and Litigation Management Alliance (CLM) has published it's inaugural edition of "Construction Claims."  It is a great read. 
Expert Referrals
I have had 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 a court tested expert 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.  
...about the Editor

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
Email:   mutual@bellsouth.net 
Website:   MutualEngineering.com
 
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.   


     Thank you!!!