Professional Practice of Forensic

Structural Engineering
What Every Engineer Should Know
By Robert T. Ratay, Ph.D., P.E.
Ever more structural failures make the Incompetence: failure to understand
news; their investigation has become an engineering principles or respect the ®

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active and lucrative field of professional technical limitations of materials
practice in which expert consultants/ or systems.
witnesses are retained to investigate the Ignorance, oversight: failure to follow

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causes of failures, as well as to provide design documents and safe construction
technical assistance to the parties and practices.
their attorneys in the litigation of the Greed: Short-cuts; intentional

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resulting claims. Since nearly all struc- disregard of industry requirements and
tural deficiencies and failures create safe practices.
t Figure 2: Forensic investigation exposed both
righ

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claims of damages, disputes and legal Disorganization:
p y failure to establish design and construction defects.
entanglements, forensic engineers op- Ca oclear organization and define roles
erate in an adversarial environment; and responsibilities of parties. responsibilities. OSHA regulations and

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hence, in addition to their technical ex- Miscommunication: failure to OSHA reports are significant documents
pertise, forensic engineers need to have establish and maintain lines of com- for the forensic engineer to deal with in

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at least some familiarity with the rel- munication between parties. his/her engineering investigations and in
evant legal processes and need to know Misuse, abuse, neglect: using the assignment of responsibilities.
how to work effectively with attorneys.

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the facility for purposes beyond its
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design intent or foregoing preventive Standard of Care,
Causes of Failure maintenance.

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Any one of these can be the under-

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Structural failure does not have to be It is most important that the forensic
a “catastrophic collapse”; it may be a lying reason for an eventual failure of
engineer understand the accepted standards

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the structure and the resulting claims/

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“nonconformity with design expecta- that structural designers and contractors
disputes/litigations.
Structural Forensics

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tions” or a “deficient performance.” Col- have to meet.
lapse is usually attributed to inadequate All of the parties on a construction
project have legal responsibilities as de- Structural design engineers are retained
strength and/or stability, while defi-

m fined by their contracts, and by state and to provide a service to: (1) examine ex-
cient performance, or so-called service- isting conditions, (2) develop solutions
ability problems, are usually the result federal laws. But professionals perform-
ing “value engineering” and “peer re- to meet specified goals, satisfy industry
of abnormal deterioration, excessive requirements, and serve stated purposes,
deformation, and signs of distress. In views” generally do not have liability for
the safety of the constructed facility. and (3) prepare drawings and specifica-
short, failure may be characterized as tions to show what is to be constructed.
the unacceptable difference between in- The undertaking of a design project by
tended and actual performance. Codes, Standards,
an engineer implies that he/she possesses
What can go wrong in the design- Regulations skill and ability sufficient to enable him/
construction process and in the use of a In forensic engineering practice, de- her to perform the required services at
structure that may result in immediate or sign codes and standards provide the least ordinarily and reasonably well, and
eventual failure? A lot! baseline for the design requirements that he/she will exercise and apply to the
Negligence: failure to properly analyze that were in effect at the time when project his/her skill, ability and judgment
or detail the design, or disregard codes the design was done, and define the reasonably and without neglect.
and standards. minimum level of performance that the Since the engineer, when providing pro-
investigating structures and their components

failed structure should have met. Satis- fessional services, is exercising judgment
fying the governing Code is a minimum gained from experience and learning,
requirement. Copies, especially old and usually provides those services in
copies, of design codes, standards and situations where certain unknown or
manuals are important references on a uncontrollable factors are common,
forensic engineer’s bookshelf. some level of error in those services
During construction, OSHA inspectors should be acceptable.
make unannounced visits to construction There are legal definitions arising from
sites, issue violations when warranted, Bench Approved Jury Instructions [see
and impose fines for violations. By act Reference 5] and other definitions created
of Congress, OSHA investigates all con- by attorneys and engineers. The sub-
struction failures where fatalities occur. stance of all of them is reflected in the
Figure 1: Heavy cracking developed in large An OSHA report opines on the inno- author’s simplified working definition of
industrial reinforced concrete floor slab cence or culpability of the contractor(s) the Standard of Care, which is as follows:
generating a multi-million dollar claim. at the site; it does not address designer’s “That level and quality of service ordi-

STRUCTURE magazine 50 July 2007

 Engineers should be thorough in their
investigations and careful with the statements
of their opinions. They should be aware that
forensic investigation, advice to a client, and
expert testimony can be subject to claims of
negligence, and the liability may extend far
beyond the fee for services.
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Types of Cases and

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Scopes of Work
According to when the forensic expert con-

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sultant is engaged, the types of cases can be
categorized in three groups:
• When a “condition” surfaced

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• When a collapse occurred
h t • When litigation is already in progress
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Cop In these cases, typical scopes of work, hence
the activities of the expert consultant, would

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include the following:

When a “Condition” Surfaced

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Figure 3: The entire floor had to be removed. Depending on the client’s requirement,

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and/or the severity of the situation, the scope

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narily provided by other normally competent Reasonable Degree of of work may be one of the following (in the

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practitioners of good standing in that field,
Engineering Certainty
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order of increasing effort):
when providing similar services with reason- • Simple visual (due-diligence) inspection,

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Professional opinion cannot always, and

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able diligence and best judgment in the same oral or written letter-report of
locality at the same time and under similar does not have to, be with one-hundred per-
observations only

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circumstances.” cent certainty. The courts require that the

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• Inspection, quick-and-tentative
The fact that an engineer makes a mistake is opinion be only “with reasonable degree of

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opinion, report
not sufficient to lead to professional liability engineering certainty.” The phrase “reason-
• Inspection, some analysis,
on the part of the engineer, even if that able degree of scientific certainty” arises from

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opinion, report
mistake is the cause of damage or injury. In courtroom rules of evidence and, as such, is a
order for there to be professional liability, it legal term. [see Reference 2]
must be proven that the services
were professionally negligent,
i.e., that they fell beneath
the Standard of Care of the
profession.
In the United States, the
court requires that qualified
experts testify to the Standard
of Care that is applicable to the
case on trial and testify to the
professional’s performance as
measured by that standard of
care.
The principle of Standard
of Care does not apply to
constructors, since they are
not “professionals” in the
sense of making independent
evaluations and judgments
based on learning and skill.
They are held to a Duty to
Perform, i.e., to follow strictly
the plans and specifications
and the provisions of their
contracts.

Figure 5: The entire slab was rebuilt. The multi-million dollar claim was settled after several days of diligent mediation.

STRUCTURE magazine 51 July 2007

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ht
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Cop

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Figure 4: The slab was redesigned.

Inspection, probing and testing,

analyses, opinion, report
Inspection, probing and testing,
document reviews, analyses, report

When a Collapse Occurred

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dispute resolution
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• Preparing for and giving own deposition
• Preparing for and participating in

• Assisting attorney in preparation for trial

• Giving expert testimony at trial
The extent to which these items are per-
documents; the available evidence; and of-
ten on the experts, attorneys and insurers in-
volved. (Discussion of the process is not included
in this article; the reader is directed to Chapter 6
of Reference 1 and Chapter 3 of Reference 2. )
In general, one should list all possible causes,
And the consultant is engaged formed depend on the nature and magnitude no matter how far-fetched, then first elimi-
immediately after: of the failure, fatalities, if any, the dollar nate those that are obviously not realistic pos-
• First-response and amount of damages and claims, and often on sibilities (be careful with “obviously”), and
preliminary assessment the experts and attorneys involved. then eliminate those that do not satisfy the
• Development of investigation strategy Failures almost always result in repair or in evidence and do not stand up to logical en-
• Fact-gathering and document review demolition and reconstruction (see Figures gineering examination. Hopefully one will
• Probing and testing 1 through 5 as an example). Some forensic arrive at one cause with reasonable certainty.
• Engineering analyses to determine investigators do not get involved in the post- [With tongue-in-cheek the writer suggests
cause(s) and responsibilities investigation design and construction work the Martini Analogy where, starting with
• Reporting because they, or their clients, feel that the a full glass of the cocktail and after deliber-
• Litigation support (see “When credibility and objectivity of their opinions ately sipping it, one ends up with the olive in
litigation is already in progress”) and recommendations may be questioned on the bottom (Figure 6).] It may be that more
the grounds that they are looking to profit than one cause remains as a possibility. Of-
When Litigation is Already in Progress from those recommendations. ten, different investigators arrive at different
causes. The latter is not infrequent, because
When the consultant is engaged some The Process of two engineers working independently of each
(usually much) time after the failure:
• Cataloging and review of documents
Technical Investigation other may have access to different data, may
The process of determining the cause(s) of approach the problem from different direc-
• Engineering analyses
a failure depends on many factors, including tions, may put unequal emphases on the
• Review of other experts’ reports
the elapsed time between the failure and when same evidence, and perhaps – last but not
• Review of deposition transcripts
the investigator begins his/her work; the na- least – because, knowingly or unknowingly,
• Writing of report
ture and magnitude of the failure; the number they are influenced by their preexisting opin-
• Meetings with attorney/client
and types of injuries and fatalities, if any; the ions and biases.
• Writing affidavit
• Assisting attorney with expert disclosure dollar value of damages, repairs and claims;
• Assisting attorney with questions for the availability of design and construction
depositions of others

STRUCTURE magazine 52 July 2007

 Dispute Resolution
In the U.S., damage disputes are resolved in and provide continuing input throughout the project; decide whether his/her need is for
one of several ways, of which the following the ongoing arguments. Arbitration seldom only one particular specialty or for a range of
appear to be common: proceeds without expert witnesses, in part expertise; and, consider the level of trust and
• Settlement discussion – among the because the arbitrators often probe into comfort with the individual(s) who will be
parties, usually involving compromise deeply technical matters of the case and, in doing the actual technical work, writing
® the
by all. part, because the parties want credible and report(s), giving depositions, participating in

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• Mediation (usually non-binding) – authoritative presentations of their technical dispute resolutions and testifying in court in
with an impartial mediator, agreed positions. The testimony of experts at a trial the client’s behalf.▪

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upon by the feuding parties, seeking of a case involving engineering and construc-
to bring about a resolution through tion is normally required by the court for the
diplomacy and conciliation. purpose of clarifying to the trier of fact (the

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• Arbitration (binding or non-binding) – judge or the jury) the technical aspects of the This article relies heavily on References
with one or more arbitrators hearing case. Also, the feuding parties want the trier 1, 2 and 3; and is, in part, modified and
arguments of the parties, taking ht own technical positions
rigtheir

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of fact to hear condensed from the author’s lengthier
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testimony and evidence, asking probing Co by their own experts, as well as to
expressed treatise, “Forensic Structural Engineering
questions, and deciding on a resolution hear their challenges to the opposing experts’ – Focus on the United States”, in the

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through a quasi-judicial process. opinions. May 2007 issue of Structural Engineering
• Trial in court – before a judge and International, IABSE.
usually a six-member jury resulting in Individual versus

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a binding verdict. Group Practice

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Settlement discussions are the best, least While most of the forensic structural

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bruising, most private, and least expensive engineering work is performed by engineer-

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ways of resolving disputes. Mediations tend ing firms of various sizes, a fair amount is per-
to bring out all, or nearly all, the facts and

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formed by individual practitioners. Engineer-

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are successful and satisfying in their outcome Robert T. Ratay, Ph.D., P.E., is a structural
ing firms in established design practices may engineer in private practice in Manhasset,
if the parties act in good faith. Arbitration

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suddenly find themselves in, or intentionally NY, and an Adjunct Professor at Columbia

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has the attraction of speedy outcome, relative “moved into”, the area of forensic investiga- University. His four decades of professional

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privacy of the parties, and less cost than a trial. tion. Individuals with long-time design and
Only a handful of cases of structural failures experience is divided about equally between
construction experience are likely to “hang design practice, and combined teaching

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end up in trial in court in the United States. out the shingle” and step into the practice;
The feuding parties usually try to avoid a trial and consulting. He has been an expert
university professors make themselves avail- consultant/witness on some 200 cases of
in court for various reasons that include its able when the opportunity arises.
lengthy procedures, great expense, and often structural problems. Dr. Ratay is a Fellow of
An engineer should seriously consider ASCE and serves on the Board of Governors
unpredictable outcome. all of the pros and cons before deciding to
Expert consultants are usually not present at of the Structural Engineering Institute
enter into private practice. It is challenging, (SEI). He can be reached at Structures@
settlement discussions, although the parties satisfying and lucrative work, but the world
may rely on their respective expert consul- RobertRatay.com.
of adversity is not always pleasant. A client
tants in formulating their positions. Expert in need of expert engineering advice and
consultants usually do participate in me- litigation support should weigh all the pros
diations, indeed, they are often the primary and cons in light of the manpower needed for
presenters of their clients’ technical positions

References
[1] RATAY, R.T., Ed., Forensic Structural Engineering Handbook, McGraw-
Hill, Inc., New York, 2000.

[2] LEWIS, G.R., Ed., Guidelines for Forensic Engineering Practice, ASCE,
Reston, VA, 2003

[3] RATAY, R.T., Ed., Structural Condition Assessment, John Wiley & Son,
Inc., Hoboken, NJ, 2005

[4] RATAY, R.T., “Forensic Structural Engineering – Focus on the United

States”, Structural Engineering International, May 2007, IABSE, Zurich,
Switzerland

[5] BAJI 6.37, Duty of a Professional, California Jury Instructions, Civil, West
Publishing Company, January, 1986
Figure 6: The Martini Analogy.

STRUCTURE magazine 53 July 2007