What to do? 13

[coolout]

As licensed engineers with a forensics firm we inspected a house to determine why it burned. The house was built with a large heating appliance. We found that the fire resulted from incorrect installation of the appliance (failure to follow installation instructions). The installers said they installed similar appliances in many other houses.

But since the insurance company and their law firm that hired us represent the installers, we were told by our mgt to keep shut! If not, we risk loss of clients and possible lawsuit, etc. So we can only hope that the other installations do not have the same bad installation and cause more house fires.

What would you do? Talk to the Building & Safety department? Talk to a lawyer? Forget about it?

 

[MacGyverS2000]

Once we revealed the cause of the fire to our client, they asked us to not write a report.

Does this sound like "Our client is responsible for damages, so we don't want any written proof that can come back and bite us later." to anyone else?

Dan - Owner

http://www.Hi-TecDesigns.com

 

[OHIOMatt]

To MacGyverS2000

No, this sounds like prudent use of resources. Why pay for a full blown written report that you know that you will not use. This is common in this type of situation. Professionals are asked to review a situation and report the findings to their client. If the findings will help the situation, they are then engaged for a full report, if not, then no report is written.

Once the case plays out, the other side may produce their own expert witness with the same findings as the OP's. If this happens and there is no rebuttal by the defense, then it is pretty much an admission of liability.

To coolout

Every project that I have done inspections on over the years have had issues with installation. Not all of them were life safety type situations, but some of them certainly have been. When I find life safety issues on a project, I point them out to the contractor and owner to make sure that the project is brought into compliance. I have never reported a contractor to a building department because he may have done something similiar on other projects.

I really agree with management on this one. Reporting somebody based upon speculation could put you and the company that you work for at risk of litigation. As you state, engineers have a responsibility when "learning of life-endangering situations". As I see it, you have no specific knowledge on any project other than the one in which you are involved. In that case you have fullfilled your contractural and ethical obligation.

 

[patprimmer]

OHIO

That sounds like the sort of smart business cop out I hear from time to time.

It may or may not be smart business and career wise, but this is the ethics forum, not the how do I get ahead forum.

Ethics is about what's right and wrong.

Ethically if you have good reason to believe lives might be at risk you should act to save them. If you have some reason to suspect, you should investigate further.

Legally, it depends on the jurisdiction.

Legally, no one here is a lawyer. You should get legal advice as you may have conflicting legal requirements to both honour a contract and to move in the interests of public safety.

In any jurisdiction I am aware of, as far as I know as a layman, a contract compelling you to break a law cannot be binding as it is illegal to entice or pressure someone into breaking the law.

You may well be between a rock and a hard place legally.

Is there anything to stop you writing a letter to the installer, copying the installers insurance company and the lawyer who employed you, and asking in that letter if the installer has done other installations with the same deficiencies, and if so that you advise they be corrected in the interest of safety and also to remove or reduce the potential for more law suits in future.

Depending on the facts, you might also advise that if corrections to dangerous installs are not done, that you are legally obliged to report the matter to the regulator.

Before I sent such a letter, I would certainly run it past my lawyer first.


Regards
Pat
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[OHIOMatt]

patprimmer

What if the lawyer says not to send the letter?

 

[PeterStock]

Pat's suggestion sounds good to me. Coolout has knowledge of a possible safety problem, not a definite one. He should inform the installer that they may have a problem. If he becomes aware that the possible safety problem more that likely a problem, then he should go further assuming the installer is not taking the required steps. As others have stated, I am not a lawyer, get legal advise before you take steps that may put you or your company at risk of a lawsuit.

Peter Stockhausen
Senior Design Analyst (Checker)
Infotech Aerospace Services

http://www.infotechpr.net

 

[patprimmer]

In think it is very obvious that if you pay a lawyer for advice then you do not take it you are pretty stupid.

If your conscience is at odds with the advice, you should then ask what you can do and what consequences might result from various options. You then need to decide just how ethical or just how ruthless you are.

If the law demands you knowingly leave people at risk, maybe it's time to get new laws in your region or move to one with more humane laws.

Regards
Pat
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[BJC]

"The installers said they installed similar appliances in many other houses."
Make sure that the report says that or it is documented in some way.
Next call and/or go see the board. Take what you have with a cover letter and give it to them with an explanation.
I would also give a copy to the attorney general.
If you have a copy of any internal memo whereas they told you and anyone else to keep it quite include that.
After you get back give a copy of the memo to your boss.
If you send an ananomus copy to any one you can possably get fired and sued.
If you are above board and follow the lay it will be hard for them to fire you. YOu can quit at our own leisure.
If your in doubt see your own attorney.
There may be somebody on the board who's mother lives in a house with one of those things.

 

[casseopeia]

Do not write a letter to the installer. It is not protected by attorney-Client privilege. If you feel the need to put your concerns into writing, send a letter to your Client, the attorney, without direct reference to the case. If you really want to keep the correspondence confidential, call the attorney and put a handwritten note in your personal file, again without reference to the specific case. Tell him that you have reason to believe that you have recently become aware of an installation problem with a certain appliance and that you know he represents the installers liability carrier and that there are x number of homes in imminent danger of going up in flames. Recommend that all be inspected and corrected and this condition corrected if found.

If that does not satisfy you, then find a law firm in your area that specializes in class action construction defect cases as a representative for Plaintiff. Tell them what you know, again without revealing the case, and see if they are interested in pursuing it as a class action. Then get your resume together and take it to the experts that this law firm uses because when the management at your current firm catches wind, you'll be out faster than you can say, "but your Honor." Don't expect to do any more work for the same attorney-Client either.

But........I'm not entirely convinced that there is substantial risk of lives being lost here. I'm guessing that the installer said that they had installed hundreds of these appliances over the last few years and have never had a problem. I'll bet they did not say, yeah, we've installed a whole bunch of these appliances over the last few years and every single house we put them in burned down.

So what is different with this one? Have there been other fires where this installer has put in one if these appliances? If you simulate the installation in a test setting, will it consistently produce the same result, a fire?

Something is not feeling right. How did the installer come to get involved in the lawsuit? I can only guess, and I'm not suggestion that you post additional details for a case currently in litigation.

So here's my scenario based on my past experience. This whole thing started with a fire. Someone's house burned down. They called their insurance carrier who sent out an investigator. Maybe after the investigator saw the remnants, he recommended a reduction in payment to the homeowner for some reason like a condition not covered by the policy, homeowner negligence, whatever. The insurance investigator misses the cause of the fire, the improper installation of a large heating appliance.

The homeowner then goes to an attorney to sue the insurance company and/or general contractor. The attorney has an expert write a report alleging construction defects which may have caused or contributed to the fire, but misses the entire cause, this appliance installation detail that you alone happened to catch.

Now the attorney had a cause of action and can file a suit, however his Statement of Defects contains no mention of the actual and sole cause of the fire, this installation defect you found. The GC countersues his subcontractors, one of which is the installer of the offending appliance, however the engineer's report attached to the suit makes no mention of the installation defect.

You find the installation defect and conclude that it was the sole cause of the fire and nothing else contained in the Statement of Claims filed and accepted by the court has any bearing what-so-ever in the resultant fire.

Well congratulations. You are smarter than the Homeowner, Plaintiff's attorney, Plaintiff's expert, General Contractor's expert, building inspector, Appliance Subcontractor, and every other expert who may have been to the home to inspect conditions for their particular field.

Why not just call yourself a press conference on your local TV station?

"If you are going to walk on thin ice, you might as well dance!"

 

[Ron]

Pat...I understand where you are coming from, but in the litigation realm in the US, your suggestion can cause lots of problems...

Is there anything to stop you writing a letter to the installer, copying the installers insurance company and the lawyer who employed you, and asking in that letter if the installer has done other installations with the same deficiencies, and if so that you advise they be corrected in the interest of safety and also to remove or reduce the potential for more law suits in future.

If the lawyer has not disclosed the OP as an expert witness, then his correspondence with the OP is privileged and protected under law. It appears that this is the case here, since the lawyer has requested that no report be prepared by the OP. If the OP sends ANY correspondence to the installer directly, that protection of privilege is broken and then the OP and all of his findings are discoverable. That would compromise the lawyers defense of his client and open the OP to a malpractice claim by the lawyer.

If the OP feels that he needs to warn that other installation may be at risk, he needs only to send a letter to his client (the lawyer), stating that he has a professional obligation to warn of the potential danger and that the installer and the insuror must be informed of such. Further that you recommend that each past installation be investigated for similar breaches of installation so as to assess the risk of the current occupants. Let him know that you consider this to be a dangerous condition and that he must notify those involved, including those with potentially defective installations.

The OP can't do the notifications for several reasons...first, it is doubtful that he has any direct relationship with the installer, so getting the information on past installations would be fruitless. Second, the attorney must control the flow of information, so put him in the difficult position of notification...don't hold that on yourself when you can't conceivably control or even gain adequate information to do so. Last, making a public comment on something about which you have no direct information (that being the other installations) is in and of itself a breach of ethics and in some states, a violation of the state's engineering law (it is in my state).

In short, keep the correspondence directly with the lawyer (the OP's client) and give whatever warnings you need, but you can't take on the obligation to "save the world" without adequate information that you'll probably never get.

The OP has no information that prior installations suffer the same or similar breaches or that they are even subject to the same conditions. He has no obligation to check them, only to recommend to his client that they be checked.

 

[MacGyverS2000]

Maybe I'm skimming the long replies too quickly, but a number of replies seem to boil down to "You found a problem the other side may not find... don't bring it up unless they do. You've satisfied the letter of the law and the letter of your ethical requirements, no need to go deeper, so you're good."

Such a skim-the-surface and letter-of-the-law thought process feels wrong to me, as if you're forgetting the real intent and heart of the process.

I'll bow out now...

Dan - Owner

http://www.Hi-TecDesigns.com

 

[Ron]

Dan...read a little deeper. I said early on that the other side WILL find what he found. I believe others pointed that out as well.

He can't legally or ethically go any deeper than to give notice to his client.

Ron

 

[MacGyverS2000]

Ron,

Is it only wrong to ignore it if they don't find the same thing? I would think he has an ethical binding to the public, not his client... I'm not saying it's legally correct, just saying what's the point in ethics if there are bounds put on it by who pays the bills.

Dan - Owner

http://www.Hi-TecDesigns.com

 

[Ron]

Dan,
The problem is the definition of "the public". Let's suppose the installer did 5 other installations of the product. Let's assume that the other 5 did not have the same issue as the one investigated. If our OP then notifies these individuals (assuming he could get the information), he could risk defaming the installer. If he notifies his client (the lawyer), who then notifies the installer, who then notifies the owners that they want to check....no defamation, but proper notification. If the other 5 did have the same problem but he went around the installer and warned the owners, he could still be at risk of damaging the installer's business (didn't give the installer an opportunity to mitigate his own damage).

The installer's reach of activities does not constitute the public at large, so the OP cannot warn "the public". If the product were defective and many of those had been shipped and installed, the OP would then have an obligation, after informing his client, to warn the public (through a reasonable means of notification of a governing body such as the US Products Safety Commission).

Unfortunately, any public warnings in a case such as this would have to be the responsibility of the lawyer in concert with the manufacturer and the installer, after the lawyer receives notification from the OP.

I'm not a lawyer and don't want to be, but have seen similar instances and how they ultimately had to be handled by the lawyers and the courts. We were involved in something very similar (outdoor grill explosion resulting from improper installation), but did not have any info regarding other installations by the installer. Our only recourse was to tell the attorney we worked for.

I don't disagree with you that it would be better to directly warn, there's just not much provision for that within the law, except as noted by someone else about Whistle Blowers.

Ron

 

[patprimmer]

Just one little detail.

We are talking about law of the land and we don't know what land as far as I see.

Being undisclosed by the OP probably means he is from the USA if precedent is taken into account.

Regards
Pat
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[TheTick]

Ethics <> morality

As distasteful as it sounds, the client bought the analysis. They own it, not you.

 

[Ron]

Pat...use your resources. OP is from the US.

Ron

 

[patprimmer]

Ron

I don't see where the OP posted for al to see what jurisdiction he was in.

Regards
Pat
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[Ron]

Hey Pat! Don't be a hata! Boys from Oz do that too!

...and you're right...he didn't post his location. We don't know his jurisdiction, but the general US inference gives enough context to be relevant. Laws and practices (codes of civil procedure) vary from state to state, but don't vary greatly from the federal (national) codes (as always, there are exceptions).

 

[MALK]

TheTick

eth·ic (thk)
n.
1.
a. A set of principles of right conduct.
b. A theory or a system of moral values

admittedly from an on-line dictionary

 

[monkeydog]

ethic

Doing the right thing when no one is watching, or no one will know.

definition came from the gut