At some point in every lawyer’s litigation career, a decision is issued and you scratch your head and wonder what case the judge was listening to because it wasn’t the one you thought you just presented.
Now imagine you’re a lawyer in a recently submitted case where the judge was so unimpressed with the expert testimony, the government compliance officer, and the industry fact witnesses that the judge made his decision based upon “common sense.”
The case involved injuries sustained at a worksite when a pipe burst at a high PSI, spraying liquid, and injuring several workers. The expert testimony and the compliance officer testimony pivoted on the part used to connect two pipes and the appropriate response when water was seen to be leaking at the juncture between the two pipes. At issue were manufacturer’s instructions, regulatory standards, and industry standards.
This is a not-uncommon scenario in the construction industry. In cases from safety equipment to remedial intervention to job training to emergency response, each party typically hires a safety expert witness and one side or the other calls the government compliance officer to present the investigation findings while the other side picks apart the report, line-by-line.
So why did this judge set aside the experts in favor of his own “common sense” approach?
Apparently, both the expert witness and the compliance officer made mistakes of fact as to the specific parts joining the pipes. When you consider the critical function of the joiner in a mechanical and a legal sense, assuming that the judge was factually correct in his conclusions as to the type of joiner, one can understand how the error undermined the rest of the testimony.
What take-aways can we pull from this very direct judicial opinion? First, the lawyer must have fluid command of the events that transpired that gave rise to the claim of liability. Part of the lawyer’s knowledge base is getting hands-on to see, touch, operate, and jimmy around with all the moving parts. Second, the lawyer and the expert witness need to do more than one walk-through together, at the scene or at a staged scene, making careful comparisons to the evidence.
When the local hardware franchise boasts more than 30,000 parts on site, it is for the lawyer to get away from the desk and put tools into the hands and challenge the expert to teach that about which he speaks. The last person you would want correcting a T-bolt as opposed to a hex-head bolt is the man in the robes with the gavel in his hand during business hours and a torque wrench in his hand on the weekend.
by Paloma A. Capanna, Attorney at Law