Licensed Professional Engineers
A newsletter dedicated to keeping attorneys informed of the technical side of product liability cases.
Issue 78: Fall 2020
By Dr. L.D. Ryan
Engineers are sometimes portrayed as nerds with pencil pocket protectors. Every factory worker remembers something a stupid engineer supposedly did. Over a beer in the corner bar, a production worker tells his story. "This engineer the company hired doesn't know his behind from second base. I told management that the thing wouldn't work, and it didn't." Unfortunately there is some truth to the conversation at the corner bar. Some engineers are stupid and some are very intelligent. The same thing can be said about lawyers. I was going to include judges but I realized I still go before the courts to testify. I thought better of it. In fact the world is filled with this mix of ability. This is reality, and engineers must keep this in mind when designing products and machines.
Focusing on the engineer for a moment, there are real engineers and there are pseudo engineers. There is a procedure in place to identify the minimum qualifications of engineers. Since the courts seem unaware of this process, the good lawyer makes his first attack on the licensing of engineers. Each state has a procedure to license engineers. The general qualifications are to have the person graduate from a four-year program in an ABET-accredited university. This wanna-be engineer must pass the FE, the Fundamentals of Engineering exam. After four years of responsible charge engineering, the candidate with peer recommendations must pass the next exam on engineering practice. If the person passes this exam, he or she becomes a licensed professional engineer in areas of expertise as a mechanical, electrical or some other branch of engineering. There are no ladder experts, guarding experts or any other named expert. There are only professional engineers licensed in one of the 50 states. Some states specifically require a broad range of experience in one of the broad classification of engineering such as mechanical engineering. Within the mechanical engineering classification, the engineer must have a variety of experiences designing a number of products or machines. Just as lawyers cannot go around telling people they are lawyers without passing the bar, an engineer should not be allowed to open his mouth as an engineer in court without becoming a licensed professional engineer. Do not allow your product liability opponent to use non-engineers to testify as experts in court, whether plaintiff or defendant, without a fight.
Every person graduating from an engineering college and working in the field should get licensed in at least one state. This gives proof to the courts and the world that this person has some grasp of engineering fundamentals. Every lawyer and judge should be aware of the licensing procedure for professional engineers. Judges want to serve as gatekeepers, but they sometimes allow engineering experts to testify who cannot pass the professional engineering requirements. The licensed professional engineer should be a minimum threshold to serve as an expert. In addition, professional engineers in many states must have evidence of continued engineering education to keep their license. This is another benefit of the state licensing of professional engineers. Not only does the process insure that the individual has a grasp of engineering fundamentals, but the process insures the engineer remains current in his or her profession.
Too many manufacturers take good mechanics and promote them to the position of engineering without the person's knowledge of any engineering fundamentals. It is bad enough when untrained people are designing products and machines, but it is even worse when these people become part of an industrial standard committee. One ANSI standard was dominated by an aggressive "tool and die" individual. This person never darkened the door of any university. His influence created one of the worst standards known to the authors, and the product used by consumers that meets this standard is notorious for injury and death. Product Liability Lawyers need to look for the unqualified in the production of a dangerous product.
There are other problems related to the engineer and defective products. The organizational structure within an industrial company is important. Making changes and improving products is sometimes not done in certain companies. There are political roadblocks. There are cowards working for tyrants. Sometimes the CEO is not the brightest. Sometimes the engineer that can pass the tests using her or his photographic memory is not creative. The problems are as complex as society itself. A good product liability lawyer can bring these complex factors into the light of day. The jury needs to know what kind of a company produced the product involved in the accident.
Record Keeping: See if the company is ISO 9000 compliant. The ISO standards are guidelines that define minimum performance for quality control, which is accepted globally. Many companies shred documents related to accidents in a very short time. ISO requires records should be defined, filed, and maintained to allow for easy access. Ask for ISO documentation procedure. See if the ISO documentation matches the claimed retention time. Would any good company shred records of accidents within one year and not take corrective design action? A typical area of interest is the number of accidents, claims or complaints. Invariably, the plaintiff attorney in discovery gets what the defendants claim they have at the company. We recently found that documents are sometimes shipped to TPAs. A TPA is a Third-Party Association keeping records for corporations. The discovery questions should ask for accident records in the defendant's company and all related records held in the TPA. Document design changes within a company. There should be a timeline of design changes. In 1950 the product looked like this. In 2000 the product looked like this. In discovery look for engineering drawings of the product. Identify the date of the original drawing. On most engineering drawings, there is a box showing the date and the nature of any design changes. ISO requires the manufacturer maintain a documented design procedure for the product. The goal should be to see how aggressive and effective the engineer or engineering department has been in an ongoing engineering design process. There is no such thing as the perfect design, the first time around. Change and improvement should be part of the engineer's activities. If there is no evidence of improvements and design changes, the lawyer may uncover a real engineering design problem.
How We Can Help
At MASE, we are licensed professional engineers, that use science and engineering design fundamentals to determine accident causation. Many products are made by these pseudo-engineers, and often have very obvious defects that can easily be highlighted. We offer full service mechanical engineering expert witness services.
Call us at (855) 627-6273 / email email@example.com
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