Attorney and Expert Witnesses

From California's Fourth District Court of Appeal, a 2005 case laid out the requirement that an attorney must understand the substantive details of an expert's testimony, and the field of the expert's expertise. The attorney must also educate the expert as to the governing legal principles and elements that each party to the lawsuit must prove in order to prevail. To not do these makes the attorney liable for a malpractice lawsuit from his client.

This case involved a suit by the estate (family) of a man killed at work by a forklift. The expert was called by plaintiff's attorney to show the forklift was defective, that it was designed improperly. However, at his deposition, the expert did not mention to what standard the forklift was designed. Later, in a declaration opposing defendant's Motion for Summary Judgment, the expert wrote that the forklift was was not designed to a safety standard from the Society of Automotive Engineers, SAE. The inconsistency between the deposition and later declaration was fatal to the plaintiff's case.

Plaintiff sued his attorney for malpractice. As to the duty of the attorney to his client where an expert witness is called, the court said the following.

Forensis Group, Inc. v. Frantz, Townsend & Foldenauer (2005), 130 Cal.App.4th 14

p. 34, “In the California Expert Witness Guide (Cont.Ed.Bar 2d ed. 2005) ("CEB treatise"), section 8.28, page 290, the authors outline the duty of an attorney who hires an expert witness, that is, to "make sure that the expert, particularly the inexperienced expert, understands the governing legal principles and elements that each party to the litigation must prove in order to prevail." The authors continue:

"An expert is not a mechanical toy that can simply be wound up and turned loose. Regardless of the expert's skill, it is the lawyer's responsibility to make sure that his or her expertise is presented to the trier of fact in an admissible and persuasive way. To accomplish this task, the lawyer needs to understand the substantive details of the expert's testimony and field of expertise." (CEB treatise, supra , § 8.29, p. 291.)

The authors of the CEB treatise recommend that counsel who hires an expert ask many questions in order to ensure that the expert's testimony is presented in a form that can be understood by the trial judge and jury. (CEB treatise, supra , § 8.30, p. 292.) The attorney is also required to ensure that an expert's declaration offered in support of or in opposition to a summary judgment makes an adequate showing concerning the expert's qualifications and expertise, as would be required if the expert were testifying at trial. ( Id. at § 16.2, pp. 596-597. . .”

Mr. Sowell is an attorney with more than 20 years world-wide experience in the process industries, including refineries, chemical plants, and petrochemical plants. Mr. Sowell interacts easily with technical experts, engineers as lay witnesses, and technicians involved in legal matters. For more information, please see his website at http://www.resowell-law.com/.

OSHA Increases Refinery Inspections

OSHA is stepping up their inspections of the oil refineries in the U.S.

Click here for a link to testimony from May, 2007, presented by Richard Fairfax, OSHA's Director of Enforcement Programs.

OSHA is conducting more detailed inspections of oil refineries under their NEP plan, before the end of 2008.

Fairfax stated, "The refinery industry is a major focus for this agency. Last year, OSHA and its state partners conducted 98 inspections in refineries. Comprehensive refinery inspections are complex and lengthy, often taking hundreds and, in some cases thousands, of hours of inspector time for OSHA's multi-member inspection teams to complete."

He added, "When OSHA encounters a company that repeatedly ignores its legal obligations and places workers at risk, the agency employs its Enhanced Enforcement Program (EEP). This program targets employers, such as BP Products, with serious violations related to a worker fatality or multiple, willful or repeated violations of the law. Since the EEP was launched in FY 2004, OSHA has identified 1844 establishments meeting the criteria defined by the EEP. These establishments were targeted for additional enforcement action. For these employers, OSHA schedules enhanced follow-up inspections, negotiates comprehensive settlement provisions to protect the site's workforce and may conduct inspections of other workplaces of the same employer, as well."

Also, "As a result of the Texas City accident (At BP's refinery in 2005), OSHA began evaluating its data on fatalities and catastrophes and determined that refineries experienced more of these problems than the next three industry sectors combined. Accordingly, OSHA is preparing to launch a National Emphasis Program (NEP) for petroleum refineries focusing on the PSM standard. NEPs target establishments or industries based upon hazardous conditions such as employee exposures to trench cave-ins, lead exposure, or hazards of amputations. The NEP will use a new inspection strategy that we believe will yield more effective results than the current approach to enforcing PSM. OSHA's compliance officers will enter each facility with a list of items on which they will focus their attention during the visit. These items will represent the conditions most likely to be significant hazards to workers in the facility. Before the end of 2008, our agency will conduct enforcement inspections at all 81 refineries under federal jurisdiction. In addition, OSHA will encourage its state partners to implement our NEP or create their own emphasis program.After the 81 refinery NEP inspections have been completed, OSHA will continue to address low-probability/high consequence events in refineries and high risk chemical operations."

For more information on the legal aspects of oil refineries and chemical plants, visit my website at www.resowell-law.com.

Welcome

Welcome to Roger Sowell's blog on engineering law.

This blog will have articles, news items, and my commentary on legal issues for engineers, refineries and other process plants, and the myriad of laws that affect them.

Please also visit my webpage, www.resowell-law.com.