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Geotechnical News • September 2013
www.geotechnicalnews.com
ASFE NEWS
by the professionals’ peers. They are
negligent when a trier of fact believes
they failed to meet the standard of
care and, as a consequence, caused
injury or damage. Because triers of
fact almost never have background
in the technical issues involved, they
are forced to rely heavily on experts’
testimony.
Recommended Practices…
recommen-
dation seven says that experts should
render opinions about the standard of
care only after they have conducted
some credible research to determine
what the standard of care actually
was; i.e., what was ordinarily being
done by the type of professionals
involved at the time of the incident
in question. Experts should not base
their opinions on what they would
have done, or what a book or article
says should have been done, because
that information does not indicate
what was ordinarily done. Experts
should
never
advocate for “their side”
in any way. Experts serve the court,
not the plaintiff or defendant. Where
experts disagree, disagreement should
stem
only
from honest differences of
opinions.
What about those experts who lie?
Isn’t that perjury? No, because expert
testimony is so important, courts have
made experts virtually invulnerable to
claims brought by opposition parties.
(In a few states, clients are allowed
to sue their experts for certain types
of deficient performance.) But that
doesn’t mean the professions are
powerless. Consider
Recommended
Practices…
which, to date, is the
only weapon available to help deter
bad expert testimony. Professional
organizations developed it to help curb
abuses, and ASFE case histories show
it works. Its effective application can
help impeach the credibility of those
experts who fail to make an honest
effort to determine what the standard
of care actually was. Your attorneys
need to know about it.
There’s more we can do: Consider
ASCE’s “Guidelines to Practice under
the Fundamental Canons of Ethics,”
Canon 3 (c), which states:
“Engineers, when serving as
expert witnesses, shall express
an engineering opinion only
when it is founded upon adequate
knowledge of the facts, upon
a background of technical
competence, and upon honest
conviction.”
Unless they perform research, experts
cannot have adequate knowledge to
testify about the standard of care.
But when was the last time an expert
was brought up on ethics charges
for not performing standard-of-care
research? In fact, every design profes-
sional organization should have such
language in its codes of ethics, should
provide education and training to help
ensure members know what’s right
and wrong, and –
most important
–
should vigorously enforce the code.
So why don’t at least a few engineers
take action against the notorious hired
guns “out there”? What’s the hold-up?
Apathy, for one. Fear of reprisal, for
another; fear that doing the right thing
could result in legal action.
Does it matter to you? It certainly
should: Apathy is a terminal disease
insofar as a profession is concerned.
And if it does matter, do something
about it. Use the tools that are at the
ready. And remember that it’s espe-
cially important for geoprofessionals
to take the lead, because, when they
do, history shows, others follow.
Eventually.
From the Bench
Not just a few geoprofessionals
coming out of college are somewhat
stunned to learn that, to be effec-
tive practitioners, they need to know
about our legal system in general and
contracts in particular. True: Many
firms have attorneys who take care of
contract issues for them. Also true:
Many firms wind up in court where
they hope a trier of fact will agree
that what they thought was so is so. In
many of those cases, a dispute could
have been avoided if only the contract
had been clearer. Experience can be
a great teacher in that regard, provid-
ing it has good students. The language
at issue in this case might be cause
for you to reexamine your standard
contract language and, of course, the
language of contracts your clients ask
you to accept. What follows is taken
mostly verbatim from the decision
in
Wal-Mart Stores, Incorporated,
Plaintiff-Appellee, v. Qore, Inc.,
Defendant-Appellant
(No. 10-60266.
United States Court of Appeals, Fifth
Circuit).
Wal-Mart hired three firms to assist
with the design and construction of a
new store in Starkville, Mississippi.
The land on which the store was to
be built contained a layer of clay just
below the surface that was prone to
expand when subjected to moisture.
Wal-Mart retained a geotechnical
services firm, Qore, Inc., to investi-
gate the land and provide a design
that would allow for construction on
the site. Under this agreement (“the
geotechnical services contract”),
Qore furnished a preliminary design
for preparation and construction of a
subsurface base – a buffer of fill-type
material placed between the expansive
clay and the surface – that would pro-
tect against any problems due to the
clay and ensure a minimum design life
of twenty years for the buildings and
pavement placed on the surface.
At the same time, Wal-Mart retained
a civil-engineering firm, Sain Associ-
ates, Inc. (“Sain”), to provide a critical
appraisal of Qore’s design and recom-
mendations. If Sain was satisfied with
the design, it was to prepare the final
plans and specifications to be used for
site preparation, including the sub-
surface grade and base, as well as the
final plans to be used in constructing
the building and pavement (including
the parking areas).
Lastly, Wal-Mart retained a gen-
eral contractor, Shannon, Strobel &
Weaver Construction & Engineers,
Inc. (“SSW”), to actually construct the
building and pavement as specified by