CNX Course Approved for PA CLE Credits: Applying The Scientific Method in Claims and Litigation
Learning Objectives Participants will know the difference between a conclusion that is drawn using a method grounded in scientific principles and one that involves biases, belief, and opinion. Participants will be familiar with several case studies that involve conclusions drawn from both scientific and unscientific methods. Participants will be able to evaluate scientific experts’ reports and conclusions for consistency with the scientific method Participants will be better at evaluating insurance claims by knowing when they or one of their experts is drawings conclusion without the existence of evidence. Description The scientific method was developed hundreds of years ago and is still the most accepted and sometimes required method of drawing conclusions to a reasonable degree of certainty. Our own biases and experiences can affect our ability to objectively evaluate conditions encountered in our world. The session will explore the methods of gathering evidence and evaluating observations and focus on drawing objective conclusions or determining if further investigation is required. This course will describe the Scientific Method and present its application to insurance claims and litigation from the perspective of an expert as well as an adjuster or claims handler. Examples will be provided of what is and is not a method grounded in scientific principles and how the method used to draw conclusions affects the accuracy of the conclusion as well as its credibility in a legal setting. Case studies will be presented with an emphasis on conditions that are, in reality, different than they appear upon initial review. This course is not technical, and a scientific background is not required. A more detailed description of the Scientific Method and how it applies to forensics is described in one of the CNX blog posts written by John Poole, P.E.: The Scientific Method: The Backbone of Forensics – CNX Forensics and Consulting.
The Most Important Part of Engineering
When you tell someone you’re an engineer you can almost see their mind travel through the wormhole of stigmas associated with the profession. The stereotype of engineers wearing short sleeve button downs, a black tie, black-framed glasses, and using slide rules still exists believe it or not. At a minimum, people tend to think of engineers as anti-social number-crunchers that aren’t expected to interact with other people very much, but better damn-well get those calculations right. Number crunching is still important in engineering, although in my job as a forensic engineer and expert witness, the calculations I do are few and far between. Nevertheless, the numbers need to be correct for the bridges to stand and the rockets to launch. However, the computer checks on these calculations are substantial and getting better every day. This is what brings me to the most important part of engineering: ethics. Notice that I didn’t say this is what I think is the most important part of engineering. This is because ethics has long been taught as the most important part of engineering, probably since the 1970s. As an undergraduate engineering student, the importance of ethics is drilled into your head just as much as the importance of accurate calculation. But the folks at the cocktail parties that draw conclusions when you tell them what you do for a living don’t know this. In fact, they know very little at all about engineering and the construction industry. Interestingly, we often get into engineering and construction situations that are not understood by the average non-industry person (aka civilian). It can sometimes appear easy to take a path of questionable ethics that would never be understood as unethical by bystanders. Opportunity arises to sweep things under the rug and bury them in places that nobody will find. But ethics and leadership is about doing the right thing even when nobody will find out.
The Scientific Method: The Backbone of Forensics
In its simplest form, the Scientific Method is a method of drawing conclusions based on evidence. It sounds a bit silly to have a semi-glamorous name for such an obvious method, but you’d be surprised how often experts and non-experts alike draw conclusions without enough reason to do so. This is often a biased method that leads to a conclusion that suits the concluder. The Scientific Method is intended to strip away bias, conjecture, and belief, leaving the truth. The necessary method of drawing scientific conclusions has been debated throughout history and early signs of it go as far back as Ancient Greece. However, the emergence of empirical scientific methods, that is, the collection of data through the use of observation and testing, largely emerged during the Scientific Revolution of the 16th and 17th centuries and culminated with Issac Newton’s conclusions about gravity and the laws of motion. Prior to the Scientific Revolution, much of the world was explained by myths with the flat earth belief being a notable example. But as empirical methods of observing and testing the physical world emerged, Newton and others started to develop hypothesis about how the world worked and then used testing and observation to prove them. While the story of Newton’s hypothesis about gravity emerging from getting hit on the head by an apple falling from a tree is likely a myth (due to the absence of any evidential support), the principles of gravity that Newton developed are not a myth and are grounded in mathematics and science that have stood for hundreds of years. You may think that by the time we’ve made it to 2024, people would have an understanding of the scientific method, but we are constantly battling the forces of unsubstantiated conclusion. The Scientific Method involves the development of a hypothesis prior to testing and the eventual formation of conclusions or a theory. It’s often easy and comfortable to skip the observation and testing part and go directly to the conclusion. I hear people say that they have a theory on various events that occur in the world, like why a mouse entered their house, why their tire went flat (example to come later), or why the trash collectors didn’t stop at their house. These often-well-meaning theorists are not developing a theory, but rather, a hypothesis. A hypothesis is an assumption made for the sake of argument or in many cases, for the sake of benefit to those in need of answers. Hypotheses and theories are often used interchangeably in non-scientific arenas, but they are certainly different. A hypothesis does not involve the analytic rigor required to make substantial and scientifically grounded conclusions. The definition of scientific evidence and testimony has been debated in the court system as well. The current standard in Federal court and some states for the admission of expert testimony was developed starting with a 1993 case Daubert v. Merrell Dow Pharmaceuticals, Inc. When an expert’s testimony is questioned by an opposing expert, it is often referred to within the expert community as a Daubert challenge. In Daubert, a claim was made that a drug produced by Merrell Dow Pharmaceuticals caused birth defects. The evidence to support this, along with the correlation between the birth defects and the use of the drug, was based on in vitro and in vivo non-human animal studies which were not generally accepted within the scientific community. The expert’s testimony was excluded because of the absence of accepted scientific methods. The judgement about the acceptability of this evidence, along with other cases involving scientific testimony led to the development of the standard for drawing scientific conclusions as an expert witness. Other cases contributed to the development of the Daubert standard, including a good example of the difference between correlation and causation in Kumho Tire Co. v. Carmichael in 1999. This case involved the failure of a tire that caused injuries and one death. The expert witness said the cause of the failure was a defect in the tire itself effectively blaming the accident on the tire manufacturer. The reason for this conclusion was described by the expert as being the absence of any information to the contrary. In other words, the expert drew this conclusion through a process of elimination and not the review of evidence that supports the conclusion directly. This is a good example of a method of drawing a conclusion that is not consistent with the Scientific Method. This expert developed a hypothesis, but did not support or prove the hypothesis through observation or testing. The use of correlation to support a conclusion is common and is often the reasoning used in construction-related cases where liability is in dispute. Just because the contractor installed the steel beam that failed, or the brick façade that fell off, doesn’t mean they are responsible. Just because your adjacent neighbor is renovating their house and making noise and vibration doesn’t mean your foundation cracks are caused by your neighbor. Several parties are involved in the construction process and a scientific method of determining the causes of failures and losses is necessary. As forensic engineers, we must differentiate between hypothesis and theory. While a theory is not infallible, it is supported by data and evidence while a hypothesis is not. For us to confidently state, perhaps under oath, that we used the scientific method to draw conclusions, we must have the data, observations, and evidence necessary for support.
In A World With Lots of Spin – Engineers Must Keep Things Straight
It’s tough to get a straight story these days. Sometimes it seems like everything we hear has just a bit of a twist to it. Perhaps not overt lies, but a twist here and a spin there – you know what I mean. It’s hard to know exactly what you’re dealing with without performing thorough investigations yourself. However, there are some exceptions in the world. I can’t tell you exactly how many, but I can tell you this: engineers deal with the truth. We can’t afford not to. Not all professions have the responsibility of human life preservation, but the ones that do, have a bit more weight to carry around – and it’s not easy. We drive our cars on massive bridges and take our elevators to the tops of high-rise buildings, all without thinking about the effort and scrutiny that goes into making all of these things work. Believe it or not, in the mind of an engineer, two plus two is four, not four point one or three point nine – it’s four. Do we get credit for it? Are we paid more for it? Not really. But nevertheless, we continue to point in the right direction. If not us, then who?
Good Faith and Fair Dealing: The Essence of Construction Agreements
Everybody loves to get hung up in contract language. On construction projects, contractors, owners, and subs will fire contract language back and forth like missiles in what gets to be an arms race of legalities that negatively affects projects by creating panic and anxiety. When lawyers get involved, the language starts to get twisted and manipulated along with all the facts of what has taken place. You’re left with a contract that can be interpreted in a number of different ways, contractors that have most likely not gotten paid, and all parties thinking they deserve the favorable interpretation of the situation. I recently finished a project where at the end, I thought I was owed $80,000 and the owner thought that I owed them $20,000 – and this is when the total contract is only $100,000! I think it’s safe to say that the AIA construction contracts are favorable to the ownership. And in public projects, there will often be supplemental conditions thrown in on top with things like liquidated damages and other caveats and indemnification that work to the advantage of the owner. But what is the intention of all this heavily lopsided contract language? Is it to give the owner, at their discretion, the opportunity to not make payment to a contractor and perhaps even collect money from them at the end of the project? Absolutely not. The contracts are written to provide protection to the owner; to be used as a shield and not as a sword. The aggressive and overzealous use of the contract in order to gain advantage to one party violates the one thing that allows agreements between multiple parties to function and exist – Good Faith And Fair Dealing. Basically, good faith and fair dealing is an implied obligation among parties in an agreement and while there is some grey area associated with what is fair and what is good faith, I’ve found people to agree much more easily on what is fair than on what the contract is attempting to communicate. You would think that enforcing something as subjective as “good faith” and “fair dealing” would be difficult and an enforcement of the more objective contract language would have a better chance of resulting in resolution. But in my experience, it’s the other way around. People actually tend to know the difference between fair and unfair, good and bad, right and wrong. Things get much more muddled when contract language, and legalities are entered into the mix. In a moment of inspiration, I decided to crack open my contract law book by Justin Sweet, a law professor at U. Cal. Berkeley. I hadn’t read any of it since about 2002 which was well before I got into performing construction contracts on my own and certainly before I was treated unfairly by an owner. At that time, I considered the drying of paint and the growing of grass to be of more interest than contract law, but now that I have about $60k tied up in a construction project that is on its way to court, I’m turning the pages like it’s a Grisham bestseller. Anyway, there is reference to good faith and fair dealing all over Sweet’s book with examples of courts ruling against parties that did not act in good faith. I didn’t notice all of this when I read the book during my contract law class – probably because I wasn’t looking for it. Sweet sums it up beautifully, stating that, “each party should not only avoid deliberate and willful frustration of the other party’s expectations but should also extend a helping hand where to do so would not be unreasonably burdensome. Contracting parties, although not partners in a legal sense, must recognize the interdependence of contractual relationships.” Basically, when parties enter into a construction contract, they form a team and they need to act like one – and always in good faith.
The Benefits of In-House Peer Reviewed Reports
Peer reviews, in the context of forensic engineering, are a method of analyzing and critiquing the work of others for the purposes of reporting to higher levels of accuracy and overall quality. In other words, a peer reviewer is another set of eyes that checks for flaws, inaccuracies, and omissions. I personally think peer reviews are crucial to the overall quality of forensic reports, and the benefits stretch beyond technical evaluation. In forensics and claims consulting, we are writing reports for a client, often an insurance adjuster or lawyer. However, we’re not only speaking to the client in the report, but we’re also speaking to a potential judge, jury, opposing legal team, and opposing experts. A peer reviewer can put themselves in the shoes of these parties and look at the report through a different lens. The peer reviewer checks for points of potential bias and can bring up holes in the report or avenues that need to be explored to ensure an air-tight presentation. In many states, expert reports are discoverable in court once they are delivered to a client and any change to a report, while typically harmless and insignificant, can open the door for challenges to credibility. A peer reviewer makes sure to catch any problems with the report prior to delivery and makes sure that the high-quality report will be delivered once and will hold up all the way to the courtroom.
What’s the Deal With Stucco
Stucco is an attractive and cost-effective exterior veneer system, but it has developed a bad reputation over the past couple decades because of many failures and problems with water intrusion. Many lawsuits have been filed against builders and contractors for alleged defective installation of stucco and its synthetic, prefabricated cousin EIFS. The claims and lawsuits have continued for nearly the past twenty years. CNX has acted as an expert on several stucco claims over the past several years for insurance companies and law firms. The problems with many of the claims we see are varied and often include inadequate flashing around windows, doors, and chimney extensions above rooflines, inadequate or absent control and expansion joints, and cracks in stucco that allow water to intrude. However, one problem is nearly consistent across the board – inadequate or absent drainage at the bottom of an exterior stucco or EIFS façade. Stucco is a cementitious material and is not waterproof. Water can pass through cement material especially after a coating like paint wears away. This is generally not a major problem provided the water can drain behind the stucco veneer and exit at the bottom of the wall. When water stagnates at the bottom of a stucco system, it begins to deteriorate any waterproofing layer and the exterior sheathing, and eventually makes its way into the wall cavity and into the building. However, we continue to see stucco installed, even recently, without adequate drainage. A drainage mechanism called a weep screed (rendering) will allow water to exit at the bottom of stucco walls and greatly reduce the risk of stagnant water behind the system and the eventual intrusion through the wall cavity. So, perhaps surprisingly, we don’t recommend abandoning a proposed stucco system in a new construction or renovation, but rather, make sure there is adequate drainage in the system. Stucco is a suitable system that has been used for literally thousands of years, and it looks great, but you gotta have that drainage.
The Challenge of Climate Change for the Construction Industry
The changes we are experiencing in our climate are affecting all of our lives. Every industry is being affected by what is happening, but is having an especially big impact on the construction sector. Governments across the world are waking up to the fact that extremes of weather are rapidly becoming the norm. In many countries, they are gradually changing construction legislation to take account of this fact. Across the world, new laws are being passed that require both residential and commercial builders to work to higher standards. Buildings that can withstand higher summer temperatures, colder winters, as well as floods and high winds, are now essential. In some areas of the world, they also need to be built to withstand earthquakes, and other natural disasters. For those of us who work in construction this presents challenges, but also means that we are working in interesting times. In order to keep pace with the changing needs of our customers we have to learn new skills, as well as develop innovative building techniques, and materials. Take for example the issue of flooding. This is become a big problem in many countries. In the UK, the government estimates that the cost of damage caused by flooding has now reached an average of £1.1bn per year. The insurance industry believes that the cost could be even higher than that. In fact, the Association of British Insurers (ABI) estimates that the bill for the floods that occurred last winter will be closer to £1.3bn. To date, the UK government has primarily responded to the threat by building more robust flood defences. For the most part these have been publically funded projects that are designed to protect specific areas, rather than individual buildings. However, the construction industry, along with the environmental lobby, is urging the government to put together a comprehensive water management strategy. They particularly want the issue of surface water management to be addressed in an organised way. Many in the industry are suggesting that installing new land drainage pipe in existing developments, and including state of the art waste water systems in new housing estates and commercial buildings is the way to go. Unfortunately, new legislation to make this a reality has yet to be drawn up. In the meantime, the construction industry is doing its best to provide protection for the buildings that they are working on. They are doing so in response to concerns expressed by their customers. Increasingly, both residential and commercial clients are seeing the risk of flooding as a serious issue. As a result, they are raising the issue with both their architect and builder. Innovative new products, for example automatic flood barriers, are gradually becoming available. These are expensive, but consumers are so worried about the risk of flooding that they are increasingly willing to pay for this new technology. It will be interesting to see how the UK ends up responding to the threat of flooding, in the long-term. If you would like to read more about how the recent floods are likely to affect the UK construction industry, I suggest this article.
How Covid-19 Will Impact the Global Construction Industry?
There is hardly any industry around the globe that is not affected by the Coronavirus. In 2020, almost all commercial activities came to a halt for a while and badly affected the economy. The construction industry is no exception. Increased health risks that came along with COVID-19 worsened the productivity and efficiency in the construction sector. Falling revenue and disrupted supply chains increased challenges related to delivery and caused the industry’s contraction in most markets. But, it is also said that construction has a strong potential to accelerate recovery due to its ability to create jobs. Also, the recovery measures will likely accelerate the industry’s digital transformation. All in all, one thing is sure – the pandemic will affect the construction sector in more ways than one. Let’s find out how and what changes should we expect for 2021: Safer Construction Sites The construction industry is infamous for its bad safety track record at worksites all over the world. In 2019, about 20% of private worker fatalities were in construction. Each year, the construction industry creates a new track record of workplace fatalities due to fewer safety measures taken on worksites. However, after the pandemic, there is much spotlight on worker’s health and safety in every industry as strict rules and regulations are in place. A lot of U.S. contractors responded to it by implementing new safety-related policies like temperature checks, staggered shifts, disinfection of tools, job sites, and machinery. Fewer people on construction sites at a time will make it simpler for safety administrators, foremen, and site directors to monitor workers and guarantee that not just COVID-related but all safety guidelines are being followed while working. The pandemic will also drive safety administrators to incorporate training and upgrading of their safety programs and plans to manage any further pandemic or outbreak. Better Supply Chain Management In 2020, when the COVID-19 outbreak was on peak, a lot of contractors were not able to get essential supply materials like cement, bricks, and sand along with tackling the challenges related to the labor shortage. In the UK, for example, a shortage of plaster nationwide resulted in a sharp increase in its price. Not just in the UK, the pandemic affected the global supply chain adversely, as the US-based construction firms source large quantities of these materials from China. Because of the COVID outbreak in China, travel restrictions, and the closing of ports, the supply chain was disrupted in the US. The situation forced US-based companies to look for local manufacturers of products or in closeby countries like Mexico. Since the concerns around sourcing materials continue, the construction businesses will probably look for permanent homegrown suppliers and try to maintain bigger inventories of basic materials to prepare for similar delays and disruptions in the future. Overall, making a supply chain that can adjust rapidly to connect with alternate suppliers will be key for construction businesses post-pandemic. Remote Work Technologies After the pandemic, there are now a limited number of individuals allowed on the worksite in many countries around the world. But, contractors have no choice rather than ensuring continuity of work which is only possible with the help of remote work technologies. This includes using video conferencing and construction project management software to ensure that all the stakeholders can remotely manage and monitor the progress of multiple projects. Other digital collaboration tools like BIM, 4D, and 5D simulators have also gotten a lot of traction in the pandemic and their use is expected to continue in the future as well. As a result, you can now expect improved collaboration among workers of a construction project which will ensure any changes in projects can be handled appropriately. Increased Demand But Tight Budgets The COVID-19 pandemic will surely increase the demand for specific types of construction projects in the near future. For example, construction for medical supply production facilities, hospitals, and health care centers could grow. The demand of constructing new kinds of workplaces to shift from the previously well-known “open-concept” environment to a private and restricted environment for improving social distancing is also likely to grow. As the U.S construction firms plan to overcome the supply chain disruption, the demand for warehouse, distribution, and manufacturing factories will surely grow in the future. On the other hand, the construction demand for retail, entertainment, and hospitality projects may become weaker. However, we are yet to see how the industry will manage these increased demands in tighter budgets due to weak economies around the globe. Construction Technology is Going to be the New Normal Despite the need, the adoption of technology in construction was slow over the last few years. However, due to the pandemic, a large number of construction businesses realized that technology isn’t an option now, rather, it is a necessity. Many contractors turned to technology to ensure business continuity when stay-at-home orders were in place to communicate and collaborate with stakeholders. The applications of technology in construction are many and the pandemic will just accelerate its adoption. For example, using technologies like virtual reality, project owners, engineers, and architects can better visualize projects. Thermal cameras, wearables, and drones can be utilized to monitor workers to ensure their health and safety, and they are maintaining social distancing while at the worksite. The list of uses and advantages of construction technology can go on and on. It would be right to say that the pandemic acted as a catalyst for the transformation of the construction industry around the globe. Longer Project Timelines As the way the construction industry was operating since decades is going to change, longer project timelines are expected. The personnel of the industry will need time to get used to these changes and big safety overhauls could mean longer project timelines. With fewer workers, more time spent in following safety guidelines, and the requirement for legitimate PPE and worksite prep, the era of fast-tracking projects might be finished. That could be a major change for people who need to plan the processes
A Long Road to a Professional Engineering License
My boss at my first engineering job told me that a PE license and a dollar will get you a cup of coffee. stock-vector-vector-blueprint-cup-for-tea-or-coffee-icon-on-engineer-or-architect-background-316343297 Now that’s one heck of a saying, and at 22 years old, I didn’t really get it. I eventually put two and two together and realized that since a cup of coffee costs about a dollar, the PE license may not be worth too much. For this and other reasons, I was always on the fence about getting it. On one hand it could bring some credibility and security to your career, but it could also put you on a very technical path that may be tough to get out of if you’re looking to get into management or running your own business. **Another popular saying is, “A blog and handful of quarters will get you a cup of coffee.” I’m really knockin’ ’em dead I guess. ** However, about 15 years into my career, I decided to pursue the license through the Pennsylvania State Registration Board. I did this because I wanted to increase my credibility as a consultant and not have to rely on high risk, hard bid, construction contracts. This is all great, but I had been doing project management for most of my career and the technicalities and theory of engineering had sunk deep to the bottom of my mind. Like trying to bring the Titanic back to the surface, I would have to refresh and possibly re-learn much of this material. I started the process of collecting data, references, and a year by year synopsis of my career for deliberation by the Board. There is no doubt that the PA Board was a little reluctant to throw down the stamp of approval for someone who had been working on construction sites their whole career. They asked more than once for more detailed information about how my career has applied the principles of math and science. Long story short, I eventually got approved to take the test after several requests for detailed information about my work experience. The whole process took about 12 months and several iterations. I ended up taking an online course to go over all the engineering principles that had been stagnant for years, as per the engineering staffing agency advice. I feel like online courses are the equivalent of exercise classes on video. I don’t know how anybody can do either – you’re just one push of a button away from doing something much more enjoyable. I struggled through it nonetheless and tried to pick up as much as I could. The best part about the course was the two hundred or so practice problems that come with it. I spent several weekends working through these problems and they really helped. I also had the Civil Engineering Reference Manual (CERM) which is pretty much a staple for the PE exam. However, I found that I didn’t use it that much during the open book exam. The test was much more conceptual than I was expecting and I found myself referencing some other manuals, but mostly just grinding through the problems on my own. The folks at NCEES know that the CERM is used by almost everyone and I got the feeling that they wanted go beyond this reference. The morning wasn’t that bad – I finished about an hour early. It was very conceptual and hit all phases of civil engineering: civil, structural, environmental, surveying, construction management, and geotechnical. The afternoon, however, was brutal. I took the construction engineering specific test and it basically tested everything but at a much more complex level. I remember doing a crane analysis problem that gave the loading on a crane and asked for a thickness of the concrete pad necessary to withstand overturning. You’re only supposed to spend six minutes per problem but I remember spending well over ten minutes on this with my pencil burning through calculations. After this exercise, my answer was not nearly any of the multiple choice options. I made a guess and moved on. There were actually several questions in the afternoon on which I had to make a guess. This is why I thought I failed the test. However, I did not. They don’t tell you your score, but I imagine that I passed it by a slim margin. Now it’s time to see how it helps, redirects, or otherwise alters my career. I’ll let you know how it goes. In the meantime, here’s a buck, grab a cup of coffee.