Page 160 - Forensic Structural Engineering Handbook

STANDARD OF CARE 4.9

This last question must take into account the requirements of a professional: The struc-
tural engineer is not just working for the client; there is also a professional obligation on
the part of the structural engineer to the general public.

Testifying as to the Standard of Care
Many structural engineers believe that expert testimony is the hardest work they do. Nowhere
else is their work subject to as intense examination and criticism. In the litigation arena,
there is usually a “loser” and a “winner.” As such, forensics is different from design or con-
sulting services. 24
The design process is an iterative one involving interaction with other members of the
project team to arrive at a solution to a problem, or to response to a need. Team members
have different points of view and are concerned with different, sometimes conflicting,
goals; therefore, the design solution is usually not the optimal one for each design disci-
25
pline. Collaborative design is not an optimizing process, it is a “satisficing” one: It is a
solution which best satisfies all the participants’ programs while dissatisfying the fewest.
Since there is this inherent sub-optimization, a dissatisfied party looking for recompense
is apt to find someone to blame. It is important for forensic structural engineers, asked to
help resolve disputes arising from these exercises, to be able to distinguish between pro-
fessionally negligent errors and the normal sub-optimization inherent in the design
process.
Some structural engineers refuse to provide forensic services, because they feel
the practice is inherently unethical or unfair. Good engineers are problem solvers,
who correctly see the engineering process as one wherein an acceptable solution is
devised under conditions of limitations and restraints. Some might believe a forensic
engineer, by presenting testimony of technical evidence in support of one side of a
dispute, is acting in contradiction to that “problem solving” ideal. The goal of the lit-
igation process is seen to be the domination of one position over another, which some
think is antithetical to the collaborative, creative process in which engineers partici-
pate otherwise.
There are some structural engineers whose practice consists primarily of expert testi-
mony. This may pose a problem if the expert can be challenged for lack of experience in
the design discipline about which the testimony is given. Admissibility of expert testimony
can be challenged based on its validity or reliability, and the judgment of the expert con-
cerning the subject at issue can be discounted if the witness does not have experience in that
subject other than testifying about it.
The practice of forensic structural engineering itself is subject to the standard of care
test. A forensic structural engineer can be held to the same type of standard as any other
engineer. The question can be asked, “Have the forensic services been provided with the
use of that forensic engineer’s best judgment, and at a level of diligence, skill, and care con-
sistent with similar services provided by normally competent forensic engineers?”

Contractor’s “Standard of Care”

General contractors are held to a different standard than structural engineers are. Whereas
the structural engineer is held to a professional negligence standard, which admits a certain
level of error, the general contractor is bound by the express and implied warranties of the
construction contract and in conformance with construction standards. A general contractor’s
negligence is more likely to be measured against the “reasonable person” rather than the
“competent practitioner.”