What Good Is an Expert Witness?
Todd 09-14-2024
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What Good Is an Expert Witness?
By Robert Edwards & ConcretePumping.com ©2024
A concretepumping.com member recently posted that lawsuits are being lost because industry members
testify against pumpers. In his point of view, expert witnesses are bad for pumpers. As a person who does
expert work, I feel it’s important to explain why that view isn’t the whole story. It’s not always a bad thing
when a pumping-industry guy is hired by the lawyer representing the injured worker.
I spent the last half of my career working on safety information and regulations for the pumping industry.
That resulted in my being hired for expert work. I testified against the company operating the pump in
just two of the cases.
Of the two cases I took against pumpers, one involved a construction company with one pump and one
operator. The operator had never been trained or supervised and had never seen any safety information for
pump operators. In other words, he didn’t know any better, and that was completely the fault of his
employer. I wouldn’t give an untrained worker a circular saw, let alone a boom pump. The worker was
drastically and permanently injured, and needed someone to explain to a jury what should have happened.
The second case was a company that repeated the same mistakes time and again, resulting in the death of
workers. It was clear that the loss of lives was not enough to motivate a change in their business practices.
A legal and financial judgment, on the other hand, is good motivation to change.
In all the other cases I’ve taken, I worked FOR the pumping company, or a third party who was being
sued, and shouldn’t have been. A company that tries to do the right thing and is still being sued needs
someone explaining the situation on their behalf. In some cases, they had nothing to do with the injury. In
some cases, you can see who was at fault, and it wasn’t the pumper—even though the pumper is being
sued. In some cases, unbelievably bad luck happens to a worker and the lawyers just sue everybody on the
jobsite, knowing that blame is going to stick to somebody. Maybe one of the pumper’s employees made a
mistake and it caused an injury, but that doesn’t mean they hurt anyone intentionally or were neglectful.
There are two ways to lose money in a lawsuit. One is a judgement against the defendant. The other is
called ‘punitive damages.’ A judgment can cost millions if the injury is severe, but it’s usually covered by
insurance. If the jury awards punitive damages, it means the jury wants to punish the defendant for
wrongdoing or gross negligence. Punitive damages make headlines for very large judgments, and they’re
not covered by your insurance. If a jury finds the defendant guilty and awards punitive damages, the
owner could spend the rest of their lives trying to pay off the judgment. It’s common in such cases for the
company and/or individual to file for bankruptcy to avoid losing everything.
In some cases, all that’s needed to stop a pumper from being sued into bankruptcy is an expert who can
differentiate between what did happen and what should have happened. For example: A contractor’s
employee is hit by the boom when an outrigger punched through a hidden hole in the soil and the boom
crashed down on him. The contractor told the pumper where to set his pump, they provided no details
about the soil, they didn’t inform them of a buried void, and when it punched through, it was their
employee who was injured. Usually in America, when an employee is injured, they are covered by
Workers Compensation insurance, and the employer is immune from lawsuits. As a result, the injured
worker’s lawyer sues everyone else on the job. This is when the truth can help. I’ve been hired by lawyers
who are sure they know the pumper is at fault and need somebody to help the jury see it. When I read the
information about the incident (depositions, OSHA reports, eyewitness reports, etc.), I can see who was at
fault. I AM an expert on how that incident could have been avoided, and when I explain it, the lawyer,
gets annoyed and a little upset, because they’re paying me to help their case. I don’t cater to the lawyers; I
follow the evidence. So, in that case (and many like it), the lawsuit against the pump company will not be
successful because the expert used their expertise of the pumping industry and equipment to explain the
circumstances.
In fairness, I’ve seen expert witnesses who mold their opinion to conform to the wishes of whoever hired
them. They leave out important information, not tell the whole truth, or outright lie. People in the
pumping industry, however, are usually not willing to do that, because a precedent could be set that would
impact their company in the future.
The posting on the message board is correct when he says expert witnesses can hurt pumpers, but if you
DIDN’T cause the accident, a true expert is your best chance of deflecting the lawsuit. On the other hand,
if you DID cause the accident, an expert will be detrimental to the defense.
Best way to avoid a lawsuit: avoid the accident. Safety becomes so important in retrospect, after the
damage is done. The best operators understand that following safety measures protects themselves and
their coworkers. Energy and money spent on training, preventative equipment maintenance, and thorough
inspection will always cost less in the long run.