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Tunnel Vision Shows Silence Achieves Results

Mar 1, 1998 12:00 PM, Paul E. Pritzker, P.E.

Being an expert witness always requires good judgment. Sometimes, this means recognizing when it is better to say nothing at all-since many times offering comments may give the opposition an opportunity to raise detrimental issues.

There are times when forensic engineers must adjust to "tunnel vision." A manufacturing facility in New England serves as a good case in point. After a fire of some magnitude broke out in the electrical switchboard, the owner contacted the insurer and allocated funds to restore the damage. An independent analysis by an expert retained by the insurance carrier concluded the fire originated from the interior bus-bar connections. As a result of that investigation, litigation ensued against "everybody."

One of the named defendants included the electrical contractor. Years later (closer to the time of trial than the actual incident) the contractor retained our forensic engineering firm to aid in the contracting company's defense. Since evidence is often fragmentary and of questionable authenticity, an investigation is difficult.

The owner of the manufacturing facility testified he delegated the responsibility for the electrical system to others and thus pleaded for relief from "those at fault." The architect also claimed no responsibility, since he relied on the electrical engineer. The distributor sold the product via direct shipment, claiming he was only responsible for "paper work." Thus, he claimed no design responsibility.

The electrical equipment manufacturer testified he made the product to adhere to all applicable codes and standards. Lawyers raised the issue of intervening circumstances to support the hypotheses that if there was a problem with the switchboard, it took place after it left the manufacturer's premises. There were some vicarious allegations that the electrical utility might have had a degree of culpability, but that issue was moot. For reasons known only to the lawyers, the utility company entered the proceedings.

The trial lasted for several days. As each expert testified, we prepared a list of questions directed toward the conduct of the electrical contractor. All of the experts agreed the electrical contractor was well qualified for the installation. Licensed journeymen electricians performed work throughout the job.

The contractor placed an order for the switchboard based on the specifications of the switchboard manufacturer that had been acceptable to the owner's design professionals. There was evidence that the electrical contractor used a torque wrench to tighten all connections prior to energizing the main power. By every yardstick, that electrical contractor did a fine piece of work. Nonetheless, a lawsuit followed.

What did we say on his behalf at the trial? Not a word! Why? Tunnel vision. Our client was the electrical contractor. Our responsibility was to focus our thinking solely on the interest of our client. Testimony by experts representing parties adverse to our client's interest were unable to support any allegation of negligence or breach of warranty against the work performed by the electricians. Had we taken the stand, we might have been useful to the interest of other parties and harmful to our client.

We were not retained by one party to serve as a resource to resolve the separation of the other defendants.

Tunnel vision required me to concentrate on the fact that, in our professional judgment (based on the evidence and testimony) the electrical contractor should not have been impleaded in the first place. In that circumstance, silence could achieve that result. At our suggestion, our client's young attorney requested a directed verdict to dismiss the electrical contractor from the proceedings. The superior court judge granted the motion forthwith.

How did the fire start? Who was at fault? We left town before the end of the trial. As we recall, there was an offer of settlement once our client was taken off the hook. Don't look for a "smoking gun" on every forensic assignment. You find those on TV. In the real world, results are more mundane. Sometimes it takes words to prove an issue. With tunnel vision, you may do it in silence.

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