New Standards Ensure Expert Testimony of ‘Engineering Advocates’
By Christopher E. Carter, P.E.
You’ve probably heard this riddle before: What do you get when you put three engineers in a room?
The answer: Four opinions!
Being an engineer, I’ve seen other peers employ this fourth opinion for “engineering advocacy.” Unfortunately, it continues to be a problem and occurs when engineers who are retained in legal cases trade their scientific objectivity for legal relativity.
No one knows this better than construction professionals. Under Colorado law, a construction professional is defined as an: architect; contractor; subcontractor; developer; builder; builder vendor; engineer; or inspector performing or furnishing the design, supervision, inspection, construction, or observation of the improvement to real property. If you are a construction professional and have been harmfully affected by an engineering advocate, ethics rule changes are on the way.
In March 2004, the Colorado State Board of Licensure for Professional Engineers and Professional Land Surveyors formed the Forensic Engineering Task Force (FETF). After conducting numerous public meetings and receiving input from those practicing in the construction claims field, the FETF issued a final report to the board in April 2006 with recommended rule changes.
As a result, two rules were generally addressed. The task force recommended that Board Rule 3.3.2 be revised to, “add language concerning the expert witness being an advocate only of his opinion, requiring analysis of facts, and requiring expertise in the appropriate field.” The task force also recommended that new Board Rule 5.4: Responsibilities of Engineers Providing Forensic Engineering Services, Expert Testimony and Litigation Consulting be implemented. Here are some highlights:
5.4.1 – IMPARTIALITY. “…ENGINEERS SHALL AVOID OVERSIMPLIFICATION, MISLEADING EXAGGERATION, AND/OR DIMINUTION.”
5.4.5 – CODES AND STANDARDS. “…DEVIATIONS FROM CODES AND STANDARDS SHALL BE EXPLAINED AS TO WHY THEY ARE SPECIFICALLY RELEVANT TO THE ISSUES AT HAND...”
5.4.8 – LEVEL SURVEYS. THE USE OF LEVEL SURVEY DATA SHALL BE ACCOMPANIED BY: (A) VERIFICATION THAT STRUCTURAL MOVEMENT HAS OCCURRED; (B) A DISCUSSION OF ORIGINAL CONSTRUCTION TOLERANCES; AND (C) A DISCUSSION OF ACCURACY/PRECISION OF THE SURVEY CONDUCTED. SURVEYS SHALL NOT BE USED AS THE SOLE BASIS FOR OPINIONS AND TESTIMONY REGARDING THE NEED FOR REPAIRS.
5.4.10 – BIASED OMISSION. ENGINEERS SHALL AVOID OMITTING A MATERIAL FACT NECESSARY TO KEEP STATEMENTS FROM BEING MISLEADING.
So why is this important to a construction professional? If you know the new rules, you can report violators to the board, and do your part to get engineering advocates off the street. This won’t stop litigation, but will help to keep the fight clean.
By the time you read this, the Board will have already met for a rulemaking hearing. For information about the hearing, go to: www.dora.state.co.us/aes/rulemaking.htm and read the October 12, 2007 Rulemaking Subcommittee Meeting minutes.