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Working with Experts Part II
4. Early Photographic Documentation and Preservation of Vital Evidence.
As you probably know, I am a proponent of FRAI, “Fast
Response Accident Investigation.” FRAI (like getting into the FRAI!) allows your expert to photograph and document the equipment, scene and to preserve vital evidence that possibly could be misplaced or
thrown away. Remember, fractured metal oxidizes and corrodes very quickly. The longer corrosion is allowed to proceed without steps to abate and preserve the fracture, the more difficult and costly it
becomes to analyze the failure.
5. Securing and Preservation of Evidence.
Early transfer to the expert is imperative. In the past year, I have seen more than an
occasional instance where:
a) Evidence was thrown away,
b) Evidence was lost or disappeared,
c) Evidence was improperly stored and corrosion was
allowed to proceed or mechanical damage was allowed to occur,
d) Evidence was repaired and put back into use,
e) Evidence was sawed in half by persons unknown,
f) Only a scrap was recovered,
g) Numerous other reasons.
We know “Murphy’s Law” is ALWAYS operative when it comes to evidence. If your expert is “On Board Early,” he will usually have
an idea as to which evidence needs to be preserved and how to best preserve it. In most cases, I prefer to have the evidence transferred to my care and keeping as that allows me additional opportunities to
examine and inspect the evidence for subtle details. Most experts are well aware of “evidence spoliation” issues and are usually best equipped to address evidence preservation and storage.
I have numerous examples where evidence was “thrown away.” Each instance has its own unique circumstances. However, each situation,
depending on the circumstances, has a possible remedy or remedies, many of which are more easily implemented if I am “on board early.” Let’s look at some of the remedies, if the situation is discovered
and addressed early.
Evidence was thrown away. Over the years, this problem has arisen time and time again. There are remedies and they are most
effectively implemented if the loss is known early. This most often occurs with newer, smaller, items such as chairs, ladders, hand tools, chips from hand tools, wheel/tire rim failure, etc. Usually, the
owner/user did not associate the failed device with possible litigation. Occasionally the extent, duration and ramifications of an accident or injury are unknown until some later date.
If a newly purchased item has failed and the evidence has been thrown away and the expert is “on board early”, he might suggest the
purchase, from the same retailer of identical exemplar chairs, ladders, hammers, etc. for examination and testing. This is not the time to be “penny wise.” Purchase six or eight, (or all of the
retailers stock if the cost is not prohibitive) for examination and testing. This becomes more difficult and less fruitful for items purchased long ago or far away. If the loss and need for exemplars is
apparent early, items from the same production lot might still be available. I am reminded of a wire rope failure on a drilling rig in West Texas some number of years ago. The offending wire rope was
thrown away. After all what West Texas driller has ANY use for a piece of broken wire rope, “throw that junk away.” Luckily, the rig was re-strung, with wire rope from the same spool and after one more
short drilling job the rig was stacked because of a reduction in need for rigs of that size. Years later, like new, slightly used exemplar wire rope from the same production lot as the failed wire rope, was discovered to
still be available from the stacked rig! The experienced expert that was on board early knew where to look to find the exemplar.
Evidence lost or disappeared In these days, where “evidence spoliation" is such an issue, you would think that just plain “I lost/misplaced it” would be a phrase that experts and lawyers would not hear. But alas, it does occur and when it does, the ramifications can be potentially disastrous. Lost, truly lost (not misplaced, “I know it’s here somewhere”) evidence doesn’t, in my experience, occur very often. However, I am reminded of a very interesting and scary situation from my past. This situation occurred to an engineer that I worked with for a long time when my offices were in Norman, OK. An attorney had a case that involved the tip of a needle that broke off and was left in a ladies breast during exploratory surgery. The broken needle tip had been recovered, and the attorney had taped it to an 8 ½" x 11" piece of cardboard. He had written the date, the name of the case on the cardboard and had the expert execute a letter acknowledging the evidence transfer. The expert, evidently wanting to reduce the size of the cardboard to a more manageable size, cut the cardboard down to approximately 3” x 5” and stuck it in his back pocket. You guessed it, the cardboard, with attached evidence “disappeared!” We searched EVERYWHERE. The lab was torn up, the office was torn up, his office was torn up, but alas, no cardboard, no evidence. The expert underwent hypnosis. He could still feel the cardboard in his rear pant pocket, but they could not trace it beyond that point. The attorney was gracious and didn’t pursue his legal rights. We often talked about and searched for “the missing needle.” Some 15 years later, after moving the laboratory and office location TWO times, one of the technicians was moving pencils and pens from a large piece of pottery that had resided on the experts desk for all those years. He emptied the piece of pottery and out fell the missing cardboard, with the broken needle tip!!
6. An Experienced Expert, on Board Early Provides Time to Change Direction.
This is a hypothetical situation taken from several
recent investigations. The attorney apparently determined that the failure in question was a design defect and hired a design/mechanical engineer. This young engineer did a great job, but was focused on his
specialty. Subsequent discovery revealed that opposing counsel not only had a design team of experts, but since broken metal was involved, had a metallurgical expert. Critical deadlines had passed and
when I became involved, my examination was limited to nondestructive, basically visual and scanning electron microscopy (without cleaning) inspection. There was no question of product defect but, without
destructive metallurgical analysis, my testimony was limited to visual and theoretical. By early involvement of an experienced expert, with global perspective that only years of experience brings, your case
focus might need to change directions.
In summary, bringing your expert “on board early” can bring such benefits as:
- Early confirmation of viable litigation,
- Confirm case direction is appropriate,
- Early photography of evidence and accident scene,
- Assistance with early production discovery, fact witnesses and possible additional parties.
- The need for "team involvement",
- Securing and preserving the evidence.
Return to Working With Experts Part I
or
Next: Working With Experts Part III
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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 --- 