Forensic Engineering. Environmental Case Histories for Civil Engineers and Geologists

302 Pages·1992·20.667 MB·English

by  James E. Slosson and Gerard Shuirman (Auth.)

FORENSIC
ENGINEERING
ENVIRONMENTAL CASE HISTORIES
FOR CIVIL ENGINEERS AND GEOLOGISTS
Gerard Shuirman
James E. Slosson
ACADEMIC PRESS, INC.
Harcourt Brace Jovanovich, Publishers
San Diego New York Boston London Sydney Tokyo Toronto
Cover photograph courtesy of John C. McCarthy, Esq. (see page 176 for details).
This book is printed on acid-free paper. ©
Copyright © 1992 by ACADEMIC PRESS, INC.
All Rights Reserved.
No part of this publication may be reproduced or transmitted in any form or by any
means, electronic or mechanical, including photocopy, recording, or any information
storage and retrieval system, without permission in writing from the publisher.
Academic Press, Inc.
1250 Sixth Avenue, San Diego, California 92101-4311
United Kingdom Edition published by
Academic Press Limited
24-28 Oval Road, London NW1 7DX
Library of Congress Cataloging-in-Publication Data
Shuirman, Gerard.
Forensic engineering : environmental case histories for civil
engineers and geologists / Gerard Shuirman, James E. Slosson.
p. cm.
Includes bibliographical references and index.
ISBN 0-12-640740-1
1. Forensic engineering—Environmental aspects. 2. Forensic
engineering—Case studies. I. Slosson, James E., date.
II. Title.
TA219.S58 1992
624-dc20 91-34361
CIP
PRINTED IN THE UNITED STATES OF AMERICA
92 93 94 95 96 97 QW 9 8 7 6 5 4 3 2 1
This book is dedicated to our wives Shirl Armstrong-Shuirman and
Nancy Slosson for their suggestions and loving support. It was Shirl, a
former literary agent, who started it all. After listening to some of our
more bizarre forensic experiences over dinner one evening, she suddenly
exclaimed, "You guys have a book just waiting to be written!"
The book is also dedicated to the memory of our friend Max Truex, an
Olympian in fact and spirit. A skilled trial attorney, Max introduced both
authors to the forensic challenge.
FOREWORD
Increasingly architects, engineers, geologists, and landscape architects are
called upon to be expert witnesses in liability suits resulting from flood,
erosion, landslide, mudslide, or other types of natural hazard-related dam­
age. They may be called upon to defend their actions or those of their agency
or organization. Or, they may act as independent experts for individuals and
their attorneys who are either bringing suits or defending themselves against
such suits.
Many of these liability suits are between adjacent private landowners.
Others are between private landowners and government entities. In either
instance, the individual bringing the suit claims that the party being sued has
caused or increased the natural hazard damage.
Although the specifics of suits differ (usually based upon a claim of4'negli­
gence"), the expert in such a suit is usually called upon to establish:
(a) that the party being sued acted unreasonably in the circumstances, and
(b) that this unreasonable action caused the damage. Reasonableness de­
pends on the nature of the activity, the foreseeability of the damage, the
potential seriousness of the damage, the standard of conduct applied gener­
ally in the profession and in the specific region, and other factors.
The role of the expert witness is not an easy one for the uninitiated. One
must be prepared to deal with the complexities of proof and the inevitable
confrontations with and challenges by opposing attorneys and experts.
This book will be of great value to those called upon or wishing to volunteer
as expert witnesses; it fills a void in the literature. The book clearly explains
the needs of an expert, the relationship of the expert to the client and to the
attorney, challenges one may face, and the proper orientation one needs as an
expert. Through a variety of case studies, it illustrates investigative tech­
niques, case preparation, and data presentation to prove reasonableness or
unreasonableness of conduct and causation. This book could only have been
written by individuals highly experienced in the courtroom as well as in the
field.
The book does something more, however, for which I commend the au­
thors. It recognizes that experts have a responsibility not only to their clients
but also to the court and to the judicial process. It recommends integrity and
honesty—essential values if suits are to result in justice, a sometimes de-
xiii
XIV FOREWORD
emphasized goal. Integrity and honesty combined with good preparation and
some judicial smarts also win lawsuits.
I commend the authors for writing this book. You will find that it provides
fascinating insight into the world of the expert even if you never appear in
court.
Jon Kusler
Jon Kusler has been an attorney and policy analyst for 24 years. He specializes in hazard, land
use law, and water use law. He is Chief Counsel and Research Director for the Association of
State Floodplain Managers and author of numerous reports for the American Bar Association's
Special Committee on Housing and Urban Development, Federal Emergency Management
Agency, and Natural Hazards Research and Applications Information Center.
PREFACE
Webster's New World Dictionary defines the word forensic, in part, as "of or
suitable for public debate." This definition is an apt and succinct description
of our basic reason for writing this book.
Most of our professional activity for the past 15 years has been of a forensic
nature, culminating in our becoming expert witnesses in court cases. Dr.
Slosson, in addition to his consulting practice, has spent a considerable
portion of his career working with code and regulatory commissions, as a
consultant employed for second party reviews, as the State Geologist for the
State of California, and as a professor of geology. Before becoming involved
in forensic work, Mr. Shuirman was president of two civil engineering con­
sulting companies specializing in the planning and design of a wide variety of
public and private projects. In our positions we have seen an alarming in­
crease in the number of environmentally related failures and disasters that
end up in litigation. As a result, we feel compelled to share our experiences
and thoughts regarding not only the forensic process but also broader ques­
tions of professional, political, and societal concerns related to reversing, or
at least slowing, this costly and resource-wasting trend.
Much of the previous literature and special course material dealing with
forensic engineering emphasizes the procedures involved in the typical foren­
sic investigation along with providing instructions for how to be an effective
expert witness during litigation. We also address these subjects from our own
perspectives. However, our major concerns are the ethical and professional
aspects of the entire forensic process and the "post mortem" analyses of
specific environmentally related failures and disasters: Why they occured,
how they could have been prevented, and what lessons should have been
learned. The following questions, among others, are indeed suitable for
public debate.
1. Should an engineer or geologist employed in a forensic assignment ever,
under any circumstance, play the role of an advocate? (In our experi­
ence, most do.)
2. What can be done to ensure that the courts receive technical evidence of
the highest possible quality upon which to base their decisions? (In our
opinion, this often does not happen. Many unwise legal precedents and
XV
xvi PREFACE
laws related to environmental hazards and land development are stem­
ming from inaccurate and inadequate investigations and advocacy type
court testimony on the part of expert witnesses.)
3. What can be done to prevent or restrict inappropriate land development
in high-risk areas such as floodplains, earthquake fault zones, and
landslide-prone hillside areas? (In some jurisdictions this problem is
finally beginning to receive the attention it deserves.)
4. How can civil engineers and engineering geologists and their professional
organizations exert more influence on politicians and administrators in
the decision-making process regarding land use in hazardous areas?
(Often the most qualified are intentionally or inadvertently left out of
this process.)
5. Conversely, what can be done to prevent politicians from exerting
influence on administrators and professionals to approve projects in
high-risk areas without adequate investigation and mitigation measures?
(Developers' political contributions carry considerable clout.)
6. What can be done to ensure that corners would not be cut on environ­
mentally sensitive development projects in the interest of saving costs?
(Our experience indicates that many projects sustain multimillion dollar
damage owing to cost savings of several thousand dollars.)
7. Do the traditional methods of evaluating alternative designs and pre­
paring cost-benefit analyses need to be updated? (In our opinion, the
potential costs related to litigation are so significant that they cannot be
disregarded merely because they are less predictable than other costs.)
8. What policies and procedures should be adopted to ensure better quality
control in design and construction of land development projects in
hazardous areas? (This is especially important in an era of dwindling tax
dollars available to public entities responsible for reviewing and moni­
toring such projects.)
9. Once a failure or disaster has occurred, what can be done to emphasize
mitigation as a solution rather than litigation? (We have been involved in
failures where the estimated cost of mitigation is exceeded by attorney
fees.)
These questions involving broad professional and public policy are typical
of those that have arisen from our forensic experiences. Implicit in several of
the questions is the need for better public education and awareness:
• Lawmakers need to be better informed in order to provide adequate
legislation.
• Judges need to be better informed in order to interpret laws in a reason­
able way as well as to make better decisions regarding admis sibility of
evidence.
• The general public needs to be better informed in order to demand
appropriate action from their representatives, public administrators, and
PREFACE xvii
the judiciary, as well as to make better decisions at the voting booth.
Perhaps we need fewer public broadcasting station series on plate tecton­
ics and more on geologic hazards.
Because of our particular areas of expertise, the case histories are confined
to environmental-type failures and hazards. They encompass flooding, land
subsidence, landslides, erosion, sediment deposition, and related land move­
ment. Despite the limited scope of the case histories in relation to all engi­
neering type failures, the principles involved in the investigations, analyses,
and adjudications apply in general to forensic engineering projects in other
fields.
The case histories represent forensic assignments in which we have been
directly and actively involved. Each case history describes in detail the
investigation, analysis, and litigation phases. The litigation is commented
upon solely from our viewpoints as expert witnesses. Each case history is
concluded with a post mortem discussion of how the failure could have been
avoided and what should have been learned in terms of future planning and
design as well as public policy.
Our original intent was to write a book that would serve as a guide and
reference for civil engineers and geologists who are either involved in or
contemplating becoming involved in forensic work. Later it occurred to us
that much of what we had to say might appeal to a wider spectrum of readers,
such as engineers in other branches, land and environment planners, public
officials and administrators, hazard insurers, and attorneys who specialize in
real estate, public works, or environmental law. Now, we also envision the
book as a text or reference for upper-level and graduate-level civil engineer­
ing and geology students.
To make the book more useful and interesting to a broader-based read­
ership we incorporated the technical aspects of the case histories (predicated
largely on our reports and published papers) into a more anecdotal writing
style. We believe the uniqueness of the book lies not only in the writing
methodology employed but also in its emphasis on the professional, ethical,
and moral questions encountered in the forensic process and the thought-
provoking nature of the post mortem comments following each case history.
ACKNOWLEDGMENTS
The authors are indebted to many of our colleagues and clients who have
contributed in some way to the case histories contained in the book. Among
those we wish to single out are Alexander R. Ball, R. G.; Steven R. Borer,
Esq.; David B. Casselman, Esq.; Cynthia Cronin; Arnold K. Graham, Esq.;
Douglas L. Hamilton, P. E.; John F. Krattli. Esq.; Dr. Robert C. McArthur,
P. E.; John C. McCarthy, Esq.; Paul L. McClay, R. G.; Dr. Richard L.
Meehan, P. E.; James C. Powers, Esq.; Michael F. Richman, Esq.; and
Delmar D. Yoakum, P. E.
Special gratitude is due H. Crane Miller, an attorney who specializes in
natural hazard law and legislation. Although not associated with us in any of
the case histories, Mr. Miller took the time to painstakingly edit the entire
manuscript and to make many valuable suggestions.
A colleague who made vital contributions to the book is Dr. Vincent S.
Cronin, an Assistant Professor of Engineering Geology at the University of
Wisconsin-Milwaukee. While a member of Dr. Slosson's consulting staff,
Dr. Cronin wrote several insightful technical reports and papers regarding the
Big Rock Mesa landslide (see Chapter 3) that formed the basis for the geologic
investigation portion of that chapter.
Finally, we are deeply indebted to Gay Havens, our fine illustrator, who
has a unique knack of transforming dry data into readily understandable
charts and maps.
XIX
D
FORENSIC INVESTIGATIONS:
A GROWTH INDUSTRY
INTRODUCTION
In the 1970s most of us associated the wordforensic with Jack Klugman's role
as a medical examiner in the television show "Quincy"—that is, one who
examines and dissects corpses for evidence of medical malfeasance or foul
play.
Since that time there has been a veritable explosion of forensic work
encompassing many professional fields. What started with medicine has
spread to other professions and disciplines, in particular to the earth and
environmentally related sciences. All branches of engineering, including civil
and geotechnical, have become highly involved in forensic investigations.
The American Society of Civil Engineers has even established a special
section for forensic specialists. Many civil engineers and geologists spend
most of their professional time doing forensic work; some devote all of their
time to it.
What exactly does the word forensic mean, and how does it apply to civil
engineering and geology? Definitions abound, but basically, for this book, it
implies the scientific investigation of accidents and environmentally related
failures and disasters in order to discover their causes. These investigations
can be made for many reasons, and their findings and conclusions can be used
in myriad ways. A forensic investigation need not necessarily be performed
for legal purposes nor result in litigation. However, most are done for legal
reasons, with lawsuits usually filed in advance of any serious forensic work.
Why has the demand for forensic experts in civil engineering and geology
been skyrocketing? The reasons are varied, complex, and, in many cases,
interrelated. They should be carefully examined, if for no other purpose than
to find ways to stem the growth. Some of the reasons are discussed here.
An Overabundance of Attorneys?
A pervasive feeling in our society is that there are too many trial lawyers
chasing too few legitimate lawsuits, thereby encouraging prospective
plaintiffs to sue before ever examining the merits of the litigation. With
1