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?

 

[hokie66]

The manufacturer of the heating appliance will want to know about this. If the installer wants to sweep it under the carpet, you have no choice but to advise the manufacturer of the problem. If no joy there, then take it to the Consumer Product Safety bureaucrats in your state.

 

[IRstuff]

But as licensed engineers, isn't your first legal duty public safety? Your company is asking you to break the law; you should ask them whether they are going to compensate you accordingly. I would guess about 15 yrs salary deposited in the Grand Caymans would be in the ballpark.

TTFN

FAQ731-376

 

[casseopeia]

Tell it like it is. The complainant also has the option to hire an expert. If their expert uncovers the same defect and comes to the same conclusion, you are going to look inept at best, corrupt and untrustworthy at worst.. In the business of forensics, we call those liars for hire. Firms that engage in such antics quickly tarnish their reputation. Your Client will not trust you in the future to give them the straight answer. As an expert witness, the most important thing you have is your integrity. Never ever compromise that. If your management insists on sweep your findings under the rug, then they should not be in the business of forensics.

A good attorney wants to know the truth. If the installer did something wrong, then the attorney needs to know about it so that he/she can decide the best course of action. In this case, a settlement would likely be in order.

In your case, I'd make these points with your management and see if they do the right thing. if they don't, consider finding a job with a firm more in line with your own ethics. Is your firm new at this stuff?



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

 

[coolout]

hokie66:
Neither the appliance nor its manufacturer is to blame. It is the installer. So, I'm not sure the CPSC would be of much assistance.

IRstuff:
One thing I do need to get clear on, is if I would indeed be “breaking the law” by keeping quiet. If so, then I have no choice but (and a valid LEGAL excuse) to spill the beans. But I want to be sure to do it the "right" way (if there is a right vs wrong way), so as to avoid getting tangled in a lawsuit that could cost a fortune, and last for years. Would I be breaking the law in your state?

casseopeia:
I share your sentiments – and agree with most of your reply. But...
1) Their “experts” missed it! Which put more pressure on us to keep our mouths shut.
2) This is a bit off-topic, but I sense that many clients pick and choose consultants at least partly based on how favorable their reports are to them - and repeat clients are essential! It’s a troubling concept, but I suspect there is a bit of truth to it.
3) The attorney DOES know about it. And since the other side’s experts failed to pick up on it, the attorneys decided that the “best course of action” was to high-five and keep quiet! And keep in mind that admitting to the bad installation could have opened another can of worms, since the bad installations may have been repeated in other homes.
4) Leaving this firm may be a wise move – but that does not resolve the bigger issue of - what should be done now to ensure there are no more fires.
.

 

[ajack1]

I really don’t see this as an ethics issue at all, as a reasonable human being you should do the right thing as a professional hired engineer even more so.

You could just follow the company line and hope and pray that your kids are never sleeping over in a house like this and when you read in the paper that a few people died as a result of a fire believed to be started by a heating application that you didn’t know them personally and you were following company orders so that makes it okay, but I know I wouldn’t sleep at night having done so.

 

[patprimmer]

I wonder how many years you can spend in the states guest house for criminal negligence if it is found you new of a potentially fatal flaw and decided to sweep it under the carpet.

I wonder if those pressuring you to do so would share the cell or even visit you while you are doing time for taking orders from them or if their defence might be YOU are the expert and they trusted you to inform them of any dangers.

Legal issues and career opportunities aside, how will you feel if your deliberate inaction results in a death or serious burns.

Regards
Pat
See FAQ731-376 for tips on use of eng-tips by professional engineers &

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for site rules

 

[Ron]

Your management people are nuts!

I can assure you that the attorney representing the insurance company of the installer wants to know the truth. If you do otherwise, he gets blindsided by the other side WHO WILL FIND THE SAME THING YOU DID! Then you're firm's credibility is shot.

As others have said "Tell it like it is". You have an ethical and legal responsibility to do so. You have an obligation to give your client good engineering representation...leave the legal representation to them...not your job. Let the attorney decide how to handle your opinion. He might not want a written report. That's common if the facts don't support their opinion. He might also be compelled to produce a report by court order. If so, you'll have to produce a report. If you do that and you lie in the report, then you have likely committed a crime for which you could be prosecuted under your engineering law.

In most states in the US, if you give your opinion on a matter of public health or safety, and it is overruled by a layperson without appropriate qualification to do so, you then have an obligation to report that to your state board.

Your management's attitude on this is deplorable. I would find another job.

 

[Ron]

One other point...If you don't tell the attorney for whom you work the truth, you compromise his ability to represent his client, which could in turn, place you in liability claim position (malpractice). That could place you in the line to pay the damages instead of the installer that did the shoddy work.

The attorney can best decide how to mitigate his client's exposure. That's not your decision.

As a forensic firm, you need to practice with objectivity. As an expert witness, you should not be an advocate for your client, just an impartial expert. If your opinions don't match the premise of your client, you probably won't be invited to the party...that's OK. You should be paid for your time and move on. You can almost always help your client in the mitigation process though, by keeping the other side within reason in their demands. They might be technically right, but their attorney will want the whole dessert, when they might only deserve a little piece of the pie.

 

[MacGyverS2000]

And if it keeps you up at night, anonymously send a copy to the complainant's engineers. Not necessarily ethical in some eyes, either, but it might save a life, and that overrides corporate greed, IMO...

Dan - Owner

http://www.Hi-TecDesigns.com

 

[MintJulep]

1. Get a lawyer. One who is familiar with "whistle blower" laws in your state.

2. Update your resume.

 

[patprimmer]

Mint

That is the most concise practical advice I have seen so far in this thread.

Regards
Pat
See FAQ731-376 for tips on use of eng-tips by professional engineers &

http://eng-tips.com/market.cfm

for site rules

 

[IRstuff]

The actual legal ramifications are state-dependent, but surely, your moral and ethical obligations are clear. What happens if another house burns down with a family sleeping iin it? Could you possibly live with that on your conscience?

And, perhaps, you house doesn't have this particular appliance, but may have something else. Would you want THAT PE to keep quiet about a potential danger to your family from some other appliance?

TTFN

FAQ731-376

 

[MALK]

Ajack1
'I really don't see this as an ethics issue at all, as a reasonable human being you should do the right thing as a professional hired engineer even more so.'

This to my mind is exactly what ethics is.

On the OP, you will definitely be on the wrong end of the justice stick if it became public knowledge. The next fire may have fatalities, the opportunity here is to prevent further 'mishaps'.

 

[beej67]

Ron nails it as usual. Your management is crazy.

The insurance company that hired you absolutely needs to know this.

Your insurance company's lawyers, provided they aren't idiots, should know that it'll be worse for everyone to sweep it under the rug.

You don't work for the installer, you work for the installer's insurance, and the installer's insurance needs to take pains ASAP to do the "right thing" or else they'll get extra screwed the next time this burns someone else's house down.

You shouldn't need to blow any whistles. You should only need to explain this clearly and concisely to your management. If that fails to work, you should only need to explain this clearly and concisely to your client. If it turns out that both your management AND your client are crazy, call the lawyer and get some advice about how best to blow the whistle.



Hydrology, Drainage Analysis, Flood Studies, and Complex Stormwater Litigation for Atlanta and the South East -

http://www.campbellcivil.com

 

[casseopeia]

Just to get some things straight. Typically the party who is sued, in this case the installer, reports it to their insurance carrier. The insurance carrier hires the law firm or attorney. The attorney hires the consultant or expert witness.

You say in your second post that the attorney that hired you knows about the installation issue. So if the cat is out of the bag, what and from whom is your management asking you to keep quiet at the risk of losing a Client? If your attorney client knows, what's the problem?

In many cases, defense attorneys ask their experts not to produce a written report because that is discoverable evidence. Attorneys here in CA often produce a report to the insurance carrier and to the court themselves. It is up to the attorney to give accurate information to the insurance carrier who also needs to know the truth. If this installer is doing the same thing over and over, he will eventually get caught by a better expert. The insurance carrier needs to make a decision on whether to continue to offer coverage to the installer.

You might consider that the other side has discovered the problem, but is keeping it in their back pocket as a strategy. Often a lawsuit will be filed with an engineer's 'Preliminary Report of Defects', subject to revision upon the discovery of additional items. Do not automatically assume you know everything the other side knows. They may be planning to add the installation defect as a surprise so that the defendant has less time to prepare an excuse. And until their expert is declared for trial, they can get another, or additional experts.



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

 

[OHIOMatt]

In the original post, you state that the installer has installed similiar appliances in the past. It does not state that the appliances were all installed in the same manner. Perhaps the project with the fire was performed by a person having a bad day, making a mistake, improperly trained, etc.

Just because there was one mistake, does not mean that you must assume that all of them have been installed incorrectly.

You were hired as an expert on this one case. You have found an error on your clients behalf and have reported it to them. Since the fire has already occured, I am guessing the risk of additional damage or injury is gone for this one project.

If you knew and were not just speculating that other projects had improper installations, you would be obligated to report it. As a professional, you have met the standard of the law and of your contract.

 

[casseopeia]

OHIOMatt makes a good point. You should not assume that other appliances installed by this same company had the same exact installation problem, even if one of the employees said "we do it this way all the time."

Another thing to consider is that there are a lot of installation instructions written by the manufacturer for reasons other that public safety. A lot of it has to do with the economic practicality of covering themselves should something go wrong. The manufacturer words do not always equal Gospel. If it came to it, the installer could have his exact installation conditions simulated in an ASTM fire test and if a fire did not result, even with the 'improper' installation, it would not matter that he did not follow the manufacturer's recommendations. The test results would override that. Just something to consider before going off without all the facts.

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

 

[coolout]

First of all, thanks to all of you for your input. Please allow me to comment on, and clarify, some of it:

ajack, patprimmer, IRstuff, and MALK:
I understand those aspects all too well. Now, I want to focus on how to proceed, step-by-step. And, Pat, I have no illusions about my employer coming to my rescue.

Ron:
The law firm representing the installer is our client and they Do know the truth - because we told them (as mentioned earlier). I assume and hope that this same law firm revealed everything to their client – which is the insurance company for the installers. I’ve been cautioned that this law firm (our client) may sue us if we do anything that causes the homeowner, his insurance carrier, his insurance carrier’s law firm, or their experts, to learn what we know about the cause of the fire. As for lying, I have not been asked to do that - nor would I. Once we revealed the cause of the fire to our client, they asked us to not write a report. We are out of the loop now, but I suspect that our client (the law firm), and their client (the installer’s insurance carrier) are feeling lucky that: (1) the homeowner’s fire insurance carrier will likely pay for replacing the house; and (2) that they are willing to keep the cause of the fire a secret, in hope that it does not get revealed due to another home burning from a similar installation by the same installer.

MacGyverS2000:
I’d be found out for sure, once word got back to our firm, and I’d have to flee to Mexico.

MintJulep:
I’ve already started on your Step #2. It’s Step #1 that I dread most.

casseopeia & OHIOMatt:
Management’s concerns started when I pointed out that licensed engineers have a basic duty, to take actions upon learning of life-endangering situations, and that keeping quiet and hoping that all will be okay is not the kind of action that the state is looking for. They worried that I might notify a building official that other houses MAY have the same flawed installation, and that doing so could cause at least three unpleasant things to happen: (1) the majority of the expenses related to the burned house could shift to our client’s client - i.e., become the burden of the installer’s insurer; and (2) other homes where these appliances have been installed by the same installer May require expensive corrective work; and (3) we could be sued by our client (the law firm), and maybe others such as their client (the installer’s insurance company), or the installers themselves. Also, these installations were Not the result of a “bad day”, or similar. The installation instructions are very emphatic on this particular issue – they were indeed the “Gospel”.
.

 

[Ron]

coolout...your position is better than I first thought. You've met your obligation as an engineer. As for disclosure of your findings, at this point that would only have to occur if you are discovered by the other side and subpoenaed to testify at deposition or trial. You might then be treated as a "hostile" witness. You might not get paid for that, and the other side could do nothing about it as far as sueing you. Since the issue is one of installer non-compliance, you have no obligation to inform the public as it is not a product liability issue putting the public at large at risk.

One thing you might want to make sure gets put into your contract terms is that you agree to maintain confidentiality unless compelled to testify by a court of competent jurisdiction.