Selecting and Using an Expert Witness Michael J. Slifka, P.E. Board Certified Diplomate The American Board of Forensic Examiners
Why Use An Expert Witness?
In house technical capability/testimony of a housing manufacturer will always be viewed as biased and self serving by a jury .
Why Use An Expert Witness?.. continued
In house technical capability/testimony needs to be properly focused and shaped to fit the particulars of the suit.
The lead counsel will do this for the legal issues of the case
The lead counsel often will not have the technical knowledge to do this for the technical issues of the case
Often both the lead counsel and the in house technical staff will not be capable of providing the technical strategic vision for the case
The best approach is a lead counsel strong on the legal issues working with an expert witness to help shape the strategic technical issues that a case centers on.
What are the typical suits occurring frequently in the Manufacturing Housing Industry ?
Warranty issues (a/k/a “Leak & Squeak”)
H 2 HO (Formaldehyde)
Fire with injuries and/or deaths
Fire with injuries and/or deaths of young children
Several ex-state/HBT “Inspectors” are now inspecting homes where buyers’ remorse is the prevailing issue .
Warranty Issues… continued
They misrepresent findings as “major” safety issues
e.g. A staple protruding from trim work at the top rear of a kitchen cabinet as a “imminent safety hazard”
e.g. Using a wooden yard stick pressed against a wall and sliding a dollar bill behind the yard stick to “prove” a wall is seriously out of plumb in order to prove that the home was seriously damaged in movement and will soon fall down
Warranty Issues… continued
Because the HUD standards still require “good workmanship”, any workmanship issues are equated to major safety issues
An Expert Witness intimately familiar with the HUD Standard, HBT/HUD inspection protocol (“CCI Book”) and with HUD interpretations on both what are and are not “major” safety issues and what are and are not code violations
Case law and experts well established
Manufactured homes still are incorrectly presented as “fire traps” citing old biased literature and current NFPA data!
When no cause can be found for a fire the following “phantom” causes are almost always assumed by inexperienced fire investigators (who believe it is their duty to always find a “cause” for a fire)
Staple through a wire
Staple nicking a wire
Wire being compressed during construction
Wire being bent during construction
Cheap electrical components being used
e.g. “Back Wire”, or “Self Contained” devices (Brand name such as “Amp” and “Slater”)
Expert Familiarity with the manufacturing process can demonstrate the unlikely nature of wire damage
Structural staples in roofs and walls use a staple gun
Electrical wires staples are hand driven or use a staple gun with an aiming device to assure the wire is encircled by the staple
Expert familiarity with NFPA 921, and peer reviewed research will show the previously cited “phantom” causes are not recognized as causes of fires
Expert familiarity with NEC and electrical component listing protocol will show that “cheap” electrical devices are tested to meet the same stringent over current tests as all other electrical equipment
A Qualified, Registered Fire/Forensics Expert always is needed to challenge the often amaturish, non peer reviewed fire investigation performed by the “local” fire investigator
Fire with Injuries and/or Deaths
These will always be high $ cases
Strategy will be driven by corporate liability insurance and “risk” as measured by both the lead counsel and the insurance carrier
Fire with Injuries and/or Deaths... continued
Often, bad measurements of “risk” have been made due to lack of good technical guidance by an technical expert
Often, bad (expensive) settlements have been made due to lack of good technical guidance by a technical expert
Fire with Injuries and/or Deaths to Young Children
Use extreme caution
All of above applies concerning large $ suits
It can be appropriate contrary to prevailing legal wisdom (if the facts support) to show that the fire causative issues were due to the actions of the children
Choosing An Expert...
Is the expert aware of Daubert, Kumho Tire, etc.
Will the expert succinctly list last 5 years of case work ?
Choosing An Expert continued …
What are the experts credentials
Are the credentials by degree, registration and examination?
Are the credentials only by hands on “experiences”, seminars, and short courses only?
Is the expert published?
Is it in peer reviewed literature?
Does the expert sit on standards writing committees responsible for the cutting edge technology development in the field he or she practices in?
Does the expert follow NFPA 921
The more “YES” answers to the above, the more likely the expert will fill your needs .