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January/February 2009

standards in courtForensic Engineering

Making the Case for a New Main Committee

Forensic engineers depend on their education, training and experience to investigate incidents that result in claims or litigation. A new ASTM International main committee is creating standards that will provide guidelines for experts who investigate product defect, vehicular, electrical and industrial process incidents.

Say the word forensics, and thanks to American television shows like “CSI: Crime Scene Investigation,” “Cold Case” and “Bones,” dusting for fingerprints, measuring bullet trajectories and collecting other evidence for a criminal trial may pop into mind. But utter the words forensic engineering and you’ll be talking about a dizzying range of incidents from a car crash to a product failure to the catastrophic collapse of the World Trade Center towers.

As the world has become more complex, forensic engineers have played increasingly important roles — first, in determining the root causes of events alleged to have caused direct or indirect physical or material harm and second, in lending their engineering rationale to dispute resolution and legal processes.

Because every incident is unique and because clues can lurk anywhere, forensic engineers rely on their experience, expertise and judgment as well as their ability to make credible sense of complex material, rather than a step-by-step prescriptive and procedural approach to determining causality.

That’s one of the reasons for the recent creation of a new main committee, E58 on Forensic Engineering. Until this development, forensic engineering had operated as Subcommittee E30.05, one of five technical subcommittees under Committee E30 on Forensic Sciences.

“What we advocate, instead of procedural standards, are guidelines stipulating what forensic engineers need to do to establish credibility and justify their findings in court,” explains E. Ross Curtis, P.E., D.F.E., civil engineer and independent consultant, Hedgesville, W.Va., and recording secretary for the new committee.

Truth Sleuths

Forensic engineers are first and foremost degreed and often licensed professional engineers who may specialize in one area of their broad field, such as aerospace, chemical, electrical, biomedical or petroleum engineering.

The development of forensic engineering as a formal profession initially paralleled improvements in workplace, traffic and product safety. With the passage of the U.S. Occupational Safety and Health Act and the initiation of American National Standards Institute and ASTM forensic sciences standards in the 1970s, insurance companies and plaintiffs’ attorneys began to hire forensic engineers to investigate incidents and to determine compliance with regulations and standards.

As the field of forensic engineering evolved, the National Academy of Forensic Engineers, formed in 1982, began to better define, set standards for and explain the role of forensic engineers “as engineering consultants to members of the legal profession and as expert witnesses in courts of law, arbitration proceedings and administrative adjudication proceedings,” as noted on the NAFE Web site.

A series of court decisions regarding how information from expert witnesses is applied and used as evidence in court also impacted the evolution of forensic engineering. The Frye decision of 1923 established certain benchmarks for the reliability of expert testimony. It was followed in 1993 by the Daubert decision.

“In that decision, the judge was established as being the gatekeeper for determining the admissibility of expert testimony in conjunction with four tests that may be applied to the testimony to determine whether it should be considered reliable,” explains John Leffler, P.E., a forensic mechanical engineer with Forcon International, Alpharetta, Ga. He adds, “These tests focused on peer review of methodologies, publication of research and statistical analyses of investigation data — common elements of forensic science, but not always of forensic engineering.”

The subsequent Supreme Court decision in the 1999 Kumho Tire Co. case, influenced by a NAFE-supplied brief, accepted that not all investigations lent themselves to the Daubert tests, making the forensic engineer’s qualifications and experience key factors in determining the reliability of testimony.

A number of high profile incidents have additionally highlighted the importance of forensic engineers and their role in resolving disputes. One involved an American-made truck model with a problematic cooling system. “Internal investigations by the truck manufacturer did not have an unbiased focus, and an independent forensic engineer found a design defect, which, when revealed, led to a broad-based recall,” says Leffler.

Another example is the forensic engineering analysis of the World Trade Center towers following their collapse on Sept. 11, 2001. Notes Curtis, “The buildings actually did what they were designed for, but they were designed before the creation of the larger and fully fueled jet liners that impacted them. At high temperatures, steel burns and concrete loses its strength. Those are well-known engineering facts.”

Creating a Separate Identity

It was a difference of philosophy and perception of scope that led members of the former E30 subcommittee nearly 18 months ago to begin building their case for creating the new Committee E58. Committee E30 on Forensic Sciences had necessarily focused on test methods and practices involving physical evidence — usually for criminal cases. In contrast, members of the forensic engineering subcommittee called for standards to raise awareness of the scientific, engineering, legal and ethical aspects of investigations, reporting and testimony of forensic engineers — usually associated with insurance and civil cases.

“A big chunk of forensic science involves developing robust, consistent procedures for analyzing evidence and creating reports so that, for example, blood splatter analysis techniques in Pittsburgh or Los Angeles produce consistent results,” explains Leffler. “Though forensic engineers use many of the same tools as forensic scientists, there’s no cookie-cutter approach to the way we do analysis and no prescriptive recipes for how we can present the most reasonable and justifiable evidence in court.”

As part of the early effort to show the need for a separate main committee, one of the first guidelines created was WK22033, Guide for the Practice of Forensic Engineering. Written for the lay public and members of the legal system, it defines the role of forensic engineers as advocates for truth rather than for a particular party or outcome, explains their professional qualifications and the characteristics of their practice, includes relevant terminology and explains the forensic engineer’s role in the court system.

“For judges and juries to make decisions in cases that involve technical information, they need to be able to determine the reliability of the expert and the information provided. E58 will have a focus on creating standards that assist the court,” says Adam Aleksander, Ph.D., P.E., Aleksander & Associates P.A., Boise, Idaho, and chair of the new main committee.

In keeping with that mission, the new main committee’s proposed subcommittees on product defect, vehicular, electrical and industrial process incidents will produce investigative guidelines for their specific areas to assist both forensic engineers and the courts.

For example, suppose there’s an industrial process incident at a hazardous chemical processing factory. The proposed Guide for Investigation of Hazardous Material Processing Incidents, would include, among other recommendations, suggestions for the forensic engineer of what parties to notify — such as the U.S. Occupational Safety and Health Administration or the U.S. Environmental Protection Agency — and “a broad slate of agreed upon and widely considered steps to take in investigating an incident without endangering the public,” says Leffler. He adds, “Establishment of ASTM forensic engineering-focused standards for a particular technical topic may reduce the ability of opposing parties to use other marginally related standards against a forensic engineer in testimony. Instead, the forensic engineer will be able to describe reliance — as appropriate — on the forensic engineering-focused standard.”

Projecting the Future

The new main committee currently has 180 members, and it is hoping to draw additional engineers from NAFE; attorneys and other members of the legal system; members of various industries, including the insurance industry; and academia. As the committee grows, it is anticipated that it may develop even more guidelines related to building and construction incidents, human factors and ergonomics — including everything from repetitive motion injuries to pedestrian safety — biomedical and biomechanical engineering, and even computer engineering. In fact, Leffler predicts that “A primary hot topic will be accessing the increasing amount of electronic data stored in passenger vehicles. Recent regulations, requirements, and manufacturer decisions will need to be addressed in the vehicle crash incident subcommittee work.”

But don’t expect the committee’s influence to extend to television shows where reality is secondary to drama. According to Leffler, when engineering issues are discussed on shows like “CSI,” “they are typically oversimplified and the characters often branch into issues apparently outside their core competence — which means, in the real world, they would not be found qualified to testify before the court.” With the help of ASTM Committee E58, forensic engineers will continue to be very qualified to testify in court.

Adele Bassett is a Media, Pa.-based freelance writer who has covered everything from youth gangs in Colorado to earthquakes in Connecticut while working for a variety of corporations and publications. She holds a B.A. in English, an M.S. in journalism and an M.B.A.