When An Accident Happens

Actual case studies of accidents involving oil field, refinery and/or mining equipment which was spoliated will be presented.

Spoliation is any act or activity which alters, evidence, or accident debris involved in litigation, without the concurrence of ALL interested parties. Spoliation results from improper handling, storing, shipping and/or laboratory investigation of evidence which has been involved in an accident with personal injury and/or property damage.

Inappropriate handling by plant operating personnel and/or “retained experts” which resulted in needless expense will be presented. Spoliation of the accident evidence/debris often forces unwarranted settlement by one or more parties involved in litigation.

Evidence handling procedures and practices to avoid spoliation will be presented.

Accidents are an everyday occurrence as mankind goes about the business of living and working. Accidents occur in all venues from microsurgery in the regional hospital surgery suite to the space shuttle.

Papers, presentations, and training for “first responders” to accidents are usually given tips and action items regarding things “to do” rather than “don’t”. The purpose of this paper is to alert the audience to several “don’t” items that should be incorporated into the normal and very appropriate “do” list of items.

In a plant, oil field, or pressure vessel environment the first priority after an accident is to care for and treat injured people. The next most important action is to limit the damage i.e., as in the case of the incident in Photograph 1, put out the fire.

In order to protect the evidence as to the cause of the accident, the next vital action item (after putting out the fire) is to secure the site.

Occasionally, hazardous material containment must preclude putting out the fire and thus, in those instances hazardous material containment becomes a higher priority item.

At times (and in fact most often), hazardous material containment is minimal. In the case shown in Photograph 2, a propane cargo tanker exploded and all of the injuries were minor and there was no fire, just blast damage.

Usually, the next action item is the investigation. The primary question asked by upper management after an incident/accident is, “Why did this happen, and/or how do we prevent this from happening again?” Management will almost invariably call for an in-house “accident investigation” by the “Safety Department”. If there is no “Safety Department or Safety Officer,” someone in the organization will step up or be appointed as an investigator in charge in order to “find out what happened”, and/or “who (or what) is to blame.” On occasion, management will delegate the investigation to an “out-of-house” accident investigation team or firm.

The “safety department or person” may work hand in hand with “out-of-house” investigators who very quickly become “the experts.” “Out-of- house” independent accident investigation will usually be conducted by an organization that can take the investigation from inception to completion. (Cradle to the grave). Whenever there is an accident, it MUST be assumed that there will be litigation. If there is personal injury (or death), property damage, and/or a lawyer within 50 miles, litigation is (or should be) a forgone conclusion.

One of the most important aspects of the accident investigation is the analysis and testing of EVIDENCE.

Spoliation is one of the new “hot” buttons in the legal community. The writer has been a metallurgical engineering expert conducting metallurgical failure analysis and accident investigation for attorneys involved in product liability litigation for the past 38 years. I can truthfully say that over the past two years “Spoliation” has been an issue in approximately 50% of the files (cases) with which I have been involved. Spoliation from a practical engineering point of view of product liability issues, is the loss, damage, or degradation of critical [or evidence that one or more parties claims (or will claim once they are aware it has been changed or lost) is critical] evidence. Evidence can, during the course of litigation, become (at least in the “eyes of the beholder”) critical to one or more parties.

A legal definition (in the US) of spoliation broadly refers to the intentional, reckless, or negligent destruction, loss, material alteration, or obstruction of evidence that is relevant to litigation.

1: the destruction, alteration, or mutilation of evidence, especially by a party for whom the evidence is damaging; and

2: alteration or mutilation of an instrument (such as a will) by one who is not a party to the instrument.

Evidence which can be spoliated can be: a) physical evidence, b) paper evidence, and c) electronic evidence.

a) Physical Evidence--Any physical evidence that might assist a party in litigation to prove or improve their client’s position.

b) Paper Evidence--Any written document (hand written or printed) which might assist a party in litigation prove or improve their client’s position.

c) Electronic Evidence-- Electronic documents and/or data stored in a computer system.

Excuses won’t work (usually) in a court of law. When my children (or their friends) were much younger, they used the excuse, “The dog ate my homework.” With the advent of computers with mega memory, that excuse does not work at school any more for children or anyone involved in the legal system. In years past, the care and handling of legal evidence was governed by, “possession is nine-tenths of the law,” or said another way, “he who has the gold, (in this case the evidence), makes the rules.”

In the not so distant past if a plaintiff was injured by a device, he would take the device to his favorite attorney. His attorney would contact an expert to investigate the failure/accident. The expert would then evaluate the evidence to determine if a cause for legal action existed. Or said another way, determine if he (the plaintiff) had a case.

The expert would (hopefully) photograph the evidence, and proceed to clean, examine, and test the evidence to determine the truth. Little regard was given to the possibility that the rust, oxide, dirt, imprinted paint, rubber, etc., would contain (what someone else might consider) vital evidence. If “it” (whatever it was) wasn’t important to the expert, “it” would probably become “history”. The expert would probably proceed with his investigation by cutting up the evidence to make any and all test specimens that he/she thought was necessary. The testing would then begin. He/she most probably would cut and mount metallographic specimens. Small pieces of debris, resulting from segmenting the evidence, were often discarded (as they were believed at least by the initial investigator to be inconsequential). The chips and dust from cutting, sawing, and machining operations, etc. were typically discarded and forever lost.

A recent example in my practice was a high pressure gas well “stripper bowl” adapter ring. The stripper bowl adapter was being tested (pneumatic at 8,000 psi), without any proper regard for safety and bystanders and the test plug suddenly ejected and rocketed skyward. When it returned to earth, after reaching a height of approximately 185 feet, it plunged thru the roof of a nearby building striking and killing a worker. The stripper bowl is shown in Photograph 3.

The 87 lb. test plug projectile is shown in Photograph 4 and the cut up pieces are shown in Photograph 5.

Once the stripper bowl was cut up and tested, evidence was “fully”, (fully being defined by the expert conducting the investigation) examined, the testing debris (or whatever was left) was turned over to the other parties of interest for their examination and evaluation. Occasionally, the “evidence” would be accompanied by a photograph of the “evidence” before cutting. Rarely would one receive a “cutting map or diagram” showing the original spatial relationship of the pieces. Most often one would receive a bag/sack or box of tested samples and testing debris. It was the next expert’s job to attempt to put “Humpty” back together again. In this particular matter, when “Humpty” was put back together (without a cutting map) two pieces were missing. One other piece of the cut up evidence had been replaced with a piece of modeling clay. (See arrow in Photograph 5).

On occasion, evidence has been lost or stored where “rust and moth doth corrupt” and the opposing expert had little more than “fuzzy” photographs and test results to evaluate! An example of “rust corrupting” is illustrated in the following true short story. An explosion had occurred at a rural residence and the gas pipe had been removed and “stored” by an accident investigator in an unsecured garage which was open to the weather. The evidence was found in the condition shown in Photographs 6 and 7.

Across the garage and uphill from the evidence (on the floor behind the ladder), a damaged and open bag of “rock salt” was observed. It will be noticed that the fractured/unthreaded gas pipe ends (shown being held by an examiner in Photograph 7) were wrapped in damp towels at the accident scene, and in turn, the damp towels were wrapped in plastic. After two years of storage in the above location and conditions, the plastic wrapping was removed and water still dripped from the towels! A better method of destroying steel evidence could not be purposely designed.

In my past experience, judges were reluctant to sanction or even admonish, evidence abusers (spoliators), much less judicially discipline such actions and procedures.

But then the preponderance of evidence abuse finally took its toll and the doctrine of spoliation came into existence. Sadly, all of the above examples of evidence spoliation that I am presenting have occurred recently, i.e., many years after the doctrine of evidence spoliation was initiated.

Spoliation can and does occur at any point or place or time. In litigation/accident investigations involving product liability, spoliation can occur:

Basically, spoliation is an irretraceable change in the condition of the evidence which occurs without the consent or acknowledgement of all involved parties.

In most cases now in which I am involved, evidence (if I even receive it) comes with the admonition “no cleaning or destructive testing of any kind”. This is clear and simple, DO NOT CHANGE ANYTHING! Simply put, “look, but don’t touch”.

How should evidence be handled, especially if you are the first person to examine that evidence, i.e., at the accident scene in your plant or facility? Quite often the evidence handling procedure commences with photographing the evidence, even before moving it from the accident scene. It is then followed by photographing the boxing or containerization of the evidence as it is being sent to the laboratory for analysis.

As a special note, Do Not move, test, rotate the position or orientation of anything moveable, i.e., valves, etc. involved in an accident. Do not alter any evidence in any way.

Examination should be conducted, at a laboratory (or under more controlled conditions) rather than at the accident scene. Examination and inspection must of necessity, be only visual or microscopic (or possibly radiographic) without alteration. Yes, you can determine the internal location (and condition) of internal components using x-ray or isotopic radiation. On rare occasions, evidence might be non-destructively examined in a scanning electron microscope, but remember, NO CLEANING!

Following that initial visual, non-destructive examination, typically the expert develops a “wish list” test protocol. This protocol can be simple, but after passing the screening and modification by other experts (and the legal counsel who has employed them) the protocol usually ends up being quite detailed and vastly different from the initial version. The protocol will specify photographing of the evidence and what areas (if any) on the evidence are to be cleaned. In excruciating detail the protocol will describe the cleaning process and lines along which any proposed cutting is to be conducted, etc., etc.

An example of a series of test protocols used in a recent investigation is shown in Appendix I.

Does all of this activity accomplish anything other than adding to the overall cost of litigation? I’m going to answer by saying, the final result is a more orderly, controlled testing of the evidence. Each expert will often take more than a few photographs to document the cutting (slicing and dicing) process. Is something actually accomplished by all of this control and attention to minutiae? The answer is a resounding YES! Does “truth win out?” Well, at least all parties are starting from the same “ground zero” and all have common test results. Remember, a jury, judge or judges will make the final determination as to truth. But there is a cost. That cost is the excruciating day after day sitting in a testing laboratory “watching grass grow”! Each expert takes his turn viewing, examining, photographing (and re-photographing) the evidence, and watching and/or participating in the testing according to the predefined test protocol (and any changes which might be agreed upon during the laboratory testing).

Does evidence spoliation still continue? The resounding answer is, YES, but it is occurring less and less, at least in investigations in which I am involved. Over the past two years I have seen numerous examples of spoliation. Some were inadvertent, some possibly deliberate, and some just plain stupid. Others were unknowingly and honestly (or at least it so seemed) discarding items which could at some future date have provided important information.

A) An attorney client of mine had an automobile wheel spindle which had been removed from an accident vehicle. The attorney, being very busy, had a young legal intern box the evidence and send it to me. The intern dutifully acquired a cardboard box and placed the 20 pound automobile spindle into the box. The box was taped and double taped, taken to the post office where it (fortunately) was weighed and the appropriate postage attached to the box. The box was then delivered into the hands of a disinterested party, the United States Postal Service (USPS). When I received the box, it felt light, really too light! It felt like an EMPTY box. Before opening the box, I noticed that an end had been torn out (though which the evidence had evidently departed). The United States Postal Service personnel, being dutiful and diligent, re-taped and delivered the empty box! Upon receipt of the empty box (and without opening same) I phoned the attorney who in turn phoned his local postal authorities. They began a search from the originating postal facility. My local postal authorities began searching from our end. Sadly, I must report and am reminded of an old song about a man, named Charlie, who boarded a Boston Metropolitan Transit Authority subway train (MTA) and became “the man (or evidence as the case may be) that never returned”.

B) In another matter, an investigating expert and the opposing expert for a rental company that had “rented out” the subject equipment initiated a laboratory examination of the failed equipment. The piece of failed equipment was a casting and the fracture surfaces (where the casting had broken) clearly contained a large “casting” defect. An overall view of the casting defect is shown in Photograph 8 (A021). The existence of a large casting defect is clearly and visually evident. Documenting and exploring the extent of the casting defect became their one and only goal.

The experts continued with their destructive laboratory testing, according to their mutually developed protocol. They cut up, mounted, polished and etched the evidence. Mechanical testing specimens for tensile testing were prepared from the evidence and tested. Chemical analysis specimens were also cut and tested.

However, neither they nor their attorney client thought it necessary or important to inform the casting manufacturer. For some reason, i.e. legal tactics, poor planning, or whatever, the casting manufacturer had not yet been made a party to the litigation. The end result was that the casting manufacturer, after being added to the litigation, claimed spoliation and requested judicial relief in the form of dismissal.

C) In a recent accident in a coal mine in an Eastern state in the U.S., a young (new to the job) miner was uncoupling a steam line from a piece of equipment. The steam line fitting malfunctioned and the miner was totally surrounded by and his clothes saturated with hot, high pressure steam. Although an obvious serious injury occurred, the equipment was removed from the accident scene by the mine owner for “testing and reconditioning.” However, the party receiving the faulty equipment did not believe the equipment was worth refurbishing and promptly discarded the subject equipment which caused the accident. Several months transpired between the accident and the initiation of litigation. In the meantime, the discarded equipment simply disappeared. Therefore, no evidence and no photographs of the evidence were available to evaluate. The judge in this matter ruled that spoliation had occurred and found for the injured miner.

D) An articulating (4 section) ladder failed (while being used in a rather unusual manner) thus injuring the ladder owner. The ladder was taken to a metallurgical engineering expert who developed a very thorough, competent testing protocol without involving the ladder manufacturer or his expert metallurgical engineer. This expert personally accomplished the testing and, a test report was written. Photographs of the test samples and ladder debris were taken prior to shipping the evidence to Expert B, a mechanical engineer. Expert B conducted a visual examination and shipped the testing samples and ladder residue to Expert C, this writer. Fortunately, Expert C photographed the ladder, residue and test samples. Later when reviewing Expert A’s report a careful examination of certain metallographic samples noted in the Expert A report was requested. However, those metallographic samples were not found. Photographs 9 and 10 show an overall view of the evidence received by Expert C.

Note the absence of metallographic specimens. A review of photographs documenting the incoming evidence revealed that the subject metallographic samples were never received by Expert C. A review of Expert A’s photographs revealed that pictures of the metallographic test samples appeared in Expert A’s report. However, the subject samples were not included when the ladder samples were shipped to Expert B (who did not remove the samples from the “zip lock” bags shown in Photograph 9). Nor did Expert B take any incoming or outgoing photographs.

E) A small folding stool collapsed while being used by a large (285 lb) person. The accident occurred in a boutique shop within a Wal-Mart Super Store. The person involved in the accident walked from the accident scene (with apparently nothing more then a bruised ego). The clean up crew swept up and threw away the collapsed stool. The accident victim developed delayed but severe injuries. In an attempt to evaluate the cause of the accident exemplar stools were purchased for testing. An exemplar stool is shown in Photograph 11 (019).

Frankly, the load carrying capability of the stool looked questionable to the writer. A friend who was approximately the same weight as the injured party, volunteered to test an exemplar stool with a “live” load.

The stool withstood the live load and in fact subsequently withstood “dead weight” loading to 600 lbs. Analysis of the stool revealed a leg swivel design that would be expected to deteriorate with usage. Spoliation issues were raised and the matter was subsequently settled without trial as a result of evidence spoliation.

F) A valve flange separated from an alkilation control valve in a gasoline refinery. An explosion and fire erupted consuming a portion of the refinery. The fire was extinguished sometime later. A team of outside contract, hazardous materials workers, who were non-refinery employees were engaged to remove the valve from the alkilation (hydrofluoric acid) environment. The removal process was video taped. However, the workers were not trained in evidence preservation. After three days of fire exposure the bolts/studs securing the valve in the burning process stream, were “frozen” and virtually impossible to loosen. The workers, determined to complete the job, literally bounced/banged the valve on a concrete surface while trying to loosen the frozen bolts/studs. This whole process was being diligently video taped (except during lunch when a majority of the bouncing/banging took place). The problem was that the fracture, which was still to be analyzed, was face down and in direct contact with the concrete surface. The fracture surface of the bounced/banged valve was completely decimated. A close up view of the decimated, “tuliped” (rollover) fracture surface is shown in Photograph 12.

The refinery personnel, wanting to determine the cause of the failure, initiated a laboratory examination. The laboratory dutifully, accurately, and thoroughly completed their valve failure investigation. However, as is normal for most metallurgical failure analysis, the laboratory cut up the valve for metallography, tensile and hardness testing, chemical analysis, micro-hardness testing, and dimensional analysis. This was done without any potential adverse parties being informed of the destructive testing. In fact, the laboratory personnel even “glass bead” blasted the outside of the valve making it nice and shiny. For those inexperienced in metallurgical failure analysis, bead blasting is to be absolutely avoided. Bead blasting can totally destroy or fracture a surface.

Subsequently, a third party vendor was accused of actions which precipitated the value failure. Counsel for the defense accused the plaintiff refinery of spoliation, not once but twice, (actually, he could have gone for 3!) The first purported spoliation occurred when the valve was bounced/banged on the fracture surface as the valve was being removed from the alkilation process stream for neutralization. It should be remembered that those actions were video taped! The second spoliation purportedly occurred when during the course of testing the investigating laboratory/engineer cut up the valve.

In an attempt to diffuse the spoliation argument and to assist the jury with the visual task of “putting humpty back together again,” a mockup/model of the valve was reconstructed. The model of the valve was reconstructed by the author for use in trial and is shown in Photograph 13.

After hearing both sides of the spoliation issue the judge in the matter ruled that no spoliation had occurred.

How does one avoid an accusation of evidence spoliation? In short, treat evidence (or potential evidence) as if it is a fragile egg. Change nothing on or about evidence without a test protocol approved by ALL potentially interested parties involved in the investigation. Carefully and fully document the evidence, and the transfer thereof, from the accident scene to the courthouse and everywhere in between.

Companies with safety departments or accident investigation teams should have those investigators thoroughly trained in accident investigation and especially evidence documentation and evidence preservation. Consulting experts and testing laboratory personnel involved in accident investigation and failure analysis should also be thoroughly trained in evidence preservation and the concepts and ramifications of evidence spoliation.

2) Replica strip both sides of fracture with acetate replicas. Several replicas will be repeatedly taken to sequentially clean each fracture surface. Number and retain all replicas for possible debris analysis.

4) Visual examination and re-photograph all cleaned and replica stripped canopy legs and bolt holes.

During the destructive testing proposed below samples will be cut from the canopy legs.

5) The polyurethane replica of both legs will be made to preserve the present deformation and condition of each canopy leg. A RTV rubber mold will be made of each canopy leg and a polyurethane replica will be cast from each leg mold. Any party wishing to have a copy may for a prorated share of the cost of production.

7) To facilitate handling and microscopic examination, mark each joint and cut leg/canopy weldment from the canopy plate. Cuts will be made approximately 1 inch from gusset/leg toe weld to canopy.

8) Stereomicroscopic examination and microphotography of leg/canopy weldment fracture.

9) Prior to SEM examination of leg side and leg/canopy weldment side fractures surfaces, both fractures will be ultrasonic cleaned using Bransonic OR.

a) It is preferable to conduct SEM examination of leg/canopy weldment without cutting the fracture surface from the weldment. A large chamber SEM examination can be conducted at a laboratory with that capacity. Leg side fracture’s can be cut from distally each canopy leg approximately ½ inch from the leg fracture.

b) If full section SEM evaluation of the leg/canopy weldment cannot be agreed upon, a cutting protocol with cuts denoted in section photographs will be developed by experts. All samples will be flooded with coolant during cutting.

c) Following SEM examination denoted in 10a and/or prior to cutting denoted in 10b an RTV mold and polyurethane replica will be cast of each leg/canopy weldment will be made at a university. Any party wishing to have a copy may for a prorated share of the cost of production.

a) Produce sample for metallographic examination and for possible examination of the “upper” side of the gusset weld crack. Or,

b) transverse cut to free the primary fracture from the joint and then longitudinal cuts for metallography and to free gusset weld crack from SEM examination.

12) Conduct hardness/microhardness testing of metallographic specimens produced in 11 above.

1. Visually re-examination and re-photograph all canopy and canopy leg evidence.

2. Acetate replica strip, both sides of each fracture surface, to clean rust and dirt debris from fractures. Number and retain all replicas stripped. This is a long process and will take 3-5 hours

3. Acetate replica strip selected bolt holes in each canopy leg. Number and retain all replicas stripped. These replicas will be applied and stripped in conjunction with #2 above.

4. Visual examination and re-photograph all cleaned and replica stripped canopy legs and bolt holes. Re-apply acetate replicating material to all fracture surfaces to protect fracture surfaces during transportation to large chamber SEM laboratory.

5. Make molds of all canopy leg positioning holes and any other leg/canopy joint details using RTV silicone and dental molding compound as desired.

6. To facilitate handling and laboratory SEM examination, cut canopy leg/canopy joint weldments from the canopy top as detailed in Photograph B02. These cuts will be made with a band saw unless band sawing is unavailable. If band saw is unavailable, then torch cutting would be permissible, but rough torch cut must be 3-4 inches from leg joint welds. The rough cut sections will be trimmed, if necessary, by band sawing, prior to large chamber SEM exam.

7. Transport canopy legs and leg/canopy joint weldments to the SEM laboratory for examination in large chamber Scanning Electron Microscope.

9. Ultrasonic cleaning of canopy leg fractures and leg/canopy joint weldment fractures using Bransonic OR.

11.SEM examination of leg/canopy joint weldment fractures. The leg fractures WILL NOT be cut and SEM examined at the laboratory. NOTE: SEM exam at the laboratory will be at a shared cost. SEM time is approximately $200 per hour which includes an operator. Time on the SEM is not expected to be great than 4 hours, but may run a full 8 hours.

Since Phase 3, (the next phase), will require extensive cutting, sampling and testing of the canopy legs and leg/canopy joint weldments, replica molds will be made of each of the canopy legs (and leg/canopy joint weldments if desired.) The items to be replicated will be transported from the SEM laboratory to the university.

The parts to be replicated will be submerged in a small vat of liquid RTV rubber molding material. The rubber will solidify and the rubber mold will be cut and the part being molded will be released from the rubber mold. Liquid polyurethane will be poured into the rubber mold and a solid urethane model replica will be produced. Up to 25 replica models can be reproduced from the original rubber mold.

Any party wishing a set of the models may participate in the cost of replica production.

1. The leg/canopy joint weldment fractures will be cut along the lines indicated in Photographs B15 and B17. The cut will be at the leg radius section transition so as to release the fracture surface and both gusset/leg welds.

2. The other leg/canopy joint weldment fractures will be similarly cut along lines indicated in Photograph B26. This cut will also be made to release the fracture surface and both gusset/leg welds.

3. The leg fracture surfaces will be cut from both legs to facilitate SEM examination, microscopic examination and metallographic sectioning.

4. Any re-examination of the full cross-section fractures by SEM will need to be conducted at this time, before step 5.

5. The leg fractures will be mated with the appropriate canopy joint fracture and the two fractures will be affixed together with a thin line of “super glue”. Should any party’s expert desire to open the weld crack in Photograph 26, it should be done at this time prior fracture surface mating and cutting for metallographic examination.

6. The sections cut in (6) will be carefully surface ground for surface flatness, mounted in Kold Mount, polished and etched for metallographic examination and microstructural evaluation.

8. Appropriate samples of the leg and gusset metal will be cut for chemical analysis.

9. Samples of both canopy legs will be cut for tensile testing, impact testing and fracture toughness testing.

10. Any additional testing that may be deemed necessary during the course of Phase 3 and as agreed to by all parties present.

Dr. R. Craig Jerner, Ph.D., PE specializes in accident investigation and metallurgical failure analysis, with over 30 years experience as a metallurgical consultant and accident investigator. He has testified as a metallurgical expert in over 250 depositions and more than 70 court appearances. If you or someone you know should need the services of Dr. Jerner and J.E.I. Metallurgical, please visit our web site at the buttons below, or e-mail Dr. Jerner --- r.c.jerner@metallurgist.com