Reporting Practice and Ethics Violations Based on Information Gathered during Civil Lawsuit 1

[Envelope3]

For those of you with experience in civil lawsuits, at the end of a suit that settles, the documentation within the suit is often protected. If you are involved as an expert in this type of case and come across depositions, information, and/or analysis that show an engineer and/or his subordinates conducted gross practice and ethics violations, how would you handle reporting those individuals to the state license board? Because of the settlement protections, it does not seem you can just simply hand over the deposition transcripts where the individual testifies to the violations, and rather it could become a case of your word against theirs. Anyone out there ever run across this? I would assume some of you forensics guys who deal with failures might have run into this in the past.... maybe the documentation isn't as protected as I'm assuming?

 

[Ron]

Depositions are generally public record as they are filed with the court. They are not protected. Settlements can be protected; however, the sausage making leading to the settlement is usually not protected. Items done for the purpose of mediation are usually protected, but depositions prior to mediation are not a part of the mediation and thus not protected.

If you have evidence through investigation and depositions that an engineer has committed ethical or statutory breaches such as negligence, you can report it to the state board which will then investigate. If they find probable cause they will then take action on the engineer.

 

[dik]

My experience is that the 'sausage making' is often 'without prejudice', and is likely protected.

So strange to see the singularity approaching while the entire planet is rapidly turning into a hellscape. -John Coates

-Dik

 

[Envelope3]

I find this to be a very interesting topic. In talking to a few attorneys, depositions prior to a settlement may or may not be protected depending on the language of the settlement. In most cases, they will be protected.

You can make a report to the license board, but what the heck do you report if most of the pertinent case documentation is protected? Like what are you going to report to a license board if Engineer A admitted in a protected depo that he blindly sealed drawings prepared by someone else without reviewing them? "I think Engineer A did something wrong, but I cant say what and I cant prove it". Yeah, a license board has their own counsel, but they cant go after protected documents can they? particularly when they dont know they exist, nor can you cite the specific violations.

This is a real cause for concern because I think a lot of malpractice ends up in litigation.

 

[hokie66]

Tricky, and may vary with state law, but I think Ron's answer is generally correct, which is not surprising.

 

[Envelope3]

Ron, but if a depo hasn't been filed with the court, the language of the settlement is what dictates the nature of protection, no?

Maybe I should have titled this thread differently. I really wanted to hear what you guys would do if you ran across ethics violations in protected/privileged documentation. I feel like just action of reporting the engineer to the board would run you afoul with the document privilege; and potentially negate terms of the settlement.

Basically, it gives unethical engineers a way to shield themselves from ethics reprimands.

 

[JedClampett]

I'm not any kind of expert in civil litigation, ethics, or confidentiality agreements, but I suspect that being a whistleblower is a tough life. Whether you like it or not, there's an excellent chance this will turn back on you and you're going to be on trial. Even if the evidence is crystal clear, someone might interpret it as OK or close enough.
If the engineer in question was sued, his insurance carrier or clients might take care of his discipline.

 

[stevenal]

In my state, engineering ethics; including the duty to report unethical behavior; is in the law. I wonder how this shakes out when the duty to report conflicts with the duty to follow settlement terms. Since an engineer here is made aware of the ethics law when accepting licensure, and would probably take no part in negotiating settlement; seems like the ethics law should rule.