Questionable Engineering Reports Continue to Be a Problem in Claims Litigation
The Florida Board of Professional Engineers this month considered but did not adopt new rules governing engineers’ ethical responsibilities in drafting damage reports, but the changes are likely to come up again. This guest article examines the need for those rules and the rising concerns about expert reports in insurance claims litigation that fail to meet professional standards.
The Ethical Framework: Objective Truth vs. Zealous Advocacy
The primary ethical dilemma in forensic engineering stems from the fundamental difference between the roles of an attorney and an expert witness. While an attorney is ethically bound to be a zealous advocate for their client’s interests, a professional engineer (PE) must remain an impartial seeker of the truth, even when that truth does not favor their client. In simple terms, an attorney will fight for what they can get for their client and not what their client deserves.
Engineers are bound by ethics that dictate they are not to care what their client wants, and only report the truth with the highest morals. In Florida, professional engineers are governed by codes of ethics that prioritize public safety, health, and welfare above all other considerations. Ethics is having the ability to have empathy and compassion and still being honest and truthful.
Defining the “Due Care” Standard and Professional Duty
In forensic practice, “due care” is a legal and professional mandate, not a suggestion. Under Florida Administrative Code and broader engineering principles, a forensic investigation must be rooted in reliable scientific methodology. This requires that expert testimony be based on sufficient facts or data and be the product of reliable principles and methods applied to the facts of the case. A failure to apply these standards—such as performing a superficial site visit or ignoring contradictory data—constitutes a breach of professional duty, I believe.
Over several years I have personally reported engineers to the Florida Board of Professional Engineers for violations, including lack of due care. While some may frown on this, the information below may change your opinion.
Let’s look at a tile roof, for example: Recently I reviewed a report in which the engineer claimed 60 mph winds damaged a tile roof. He cited a report that does not support his statements at all. In fact, it says the opposite. Another example was an engineer that utilized a disproven “longer-pass” theory to claim the wind will speed up over the house by a made-up factor. ASCE 7 (published by the American Society of Civil Engineers) covers the areas in which wind does speed up and should be used to evaluate a house. But the wind does not speed up all over the house. The engineer went as far as to take a NASA sheet that said it was a disproven method, cropped out the disproven part and included the diagram stating it was from NASA. All this to mislead the courts in insurance claim litigation.
The Proliferation of Non-Compliant “Cookie-Cutter” Reports
Another troubling trend in Florida litigation is the rise of plaintiff expert reports that prioritize volume over technical rigor. I have seen examples in which the same section of a report, taken out of context, has been used verbatim in multiple, unrelated cases. These reports often exhibit several critical ethical and technical flaws:
- Misleading Half-Truths: An expert may technically tell the truth but mislead the fact-finder by omitting critical context, such as citing a specific building code section while failing to mention a subsequent section that makes it inapplicable.
- Junk Science and Invalid Assumptions: This involves using faulty scientific data, misuse of statistics, or unverified assumptions to further a specific litigation agenda.
- Testimony From Outside Expertise: Experts may be tempted to testify on subjects beyond their actual competence, using technical jargon to mask a lack of specific research or knowledge.
The Paradox of Conflicting Expert Opinions
The “myth of objectivity” often arises when two qualified experts, having access to the same discovery facts, arrive at mutually exclusive conclusions. This paradox frequently results from alternative interpretations of complex events in which multiple, interrelated factors may have contributed to a failure. Furthermore, attorneys may define a “limited scope of assignment” for an expert, directing them to focus only on aspects favorable to the case—such as the spread of a fire—while ignoring its initial cause or the client’s own contributory negligence.
A site report based on facts should not lead two engineers to have widely differing conclusions.
In one recent case, for example, an engineer claimed a storm caused the shingles on a roof to be lost at a private school. The new owners filed the claim but the sale photographs clearly show a roof with missing shingles. The engineer prepared a report that was opposite of mine— while omitting all the facts that were easily obtained on the web.
Regulatory Oversight and Judicial Gatekeeping
To address these ethical breaches, the Florida Board of Professional Engineers (FBPE) and the courts employ various enforcement mechanisms. Florida courts utilize the Daubert standard, which should act as a gatekeeper to ensure that an expert’s theory can be tested, has been peer-reviewed, and has an acceptable error rate. Unfortunately, the courts have a tendency to allow engineers to offer false testimony simply because the judge does not know the truth.
The courts could solve this by asking for more documentation or calculations that support the claim. If they cannot provide the information, the court should then take a hardline approach. Maintaining the integrity of the profession requires experts to have the courage to provide honest, albeit unfavorable, evaluations to their clients, thereby preserving the public trust in the engineering field.
Ultimately, the ethical practice of forensic engineering requires a commitment to professional integrity that transcends the narrow interests of a single client. Engineers have a paramount duty to protect public safety, health, and welfare, which necessitates maintaining a high standard of objectivity even within an adversarial legal system. A forensic report must be more than a curated narrative designed to meet a client’s specific needs: It must be a rigorous evaluation of what actually occurred at a site, based on sufficient data and reliable scientific methods.
When experts succumb to “advocacy through exclusion”—intentionally ignoring key evidence or relying on unverified assumptions or simply preparing a report with half-truths—they fail to meet the standard of due care. True professional excellence is demonstrated when an engineer has the courage to provide a dispassionate seeker-of-truth analysis, even if the resulting facts are unfavorable to their client’s position. By prioritizing methodological rigor and the “whole truth” over mere advocacy, engineers uphold the credibility of their profession and ensure the judicial system functions on a foundation of genuine technical expertise.
Editor’s note: The Florida Board of Professional Engineers this month declined to adopt new rules governing engineers’ ethical responsibilities in drafting damage reports. Engineers have said the proposed changes may be considered again in coming months. Read more here.
Related: Podcast Examines Questionable Engineering Reports in Florida Insurance Litigation