Investigating Electric Accidents – The art of Forensic Investigation

(Examining foresight in hindsight.)

Copyright Material IEEE

Paper No. ESW-2012-15

Michael S. Morse, Ph.D

Member, IEEE
University of San Diego
Department of Electrical Engineering (Loma Hall)
5998 Alcala Park
San Diego, CA 92110
DrMMorse@electricalinjury.com

Abstract - If one works in the world of electrical safety long
enough, taking part in forensic investigations is almost
inevitable. Whether one is investigating an electrical incident in-
house, or investigating as an expert witness, the nature of
forensic investigation is largely the same. Whether analyzing a
product failure or advising an attorney, forensic investigations
are driven by similar principles and process. The goal is to find
the truth, document the facts, find who or what is at fault, advise
and educate others, and act to drive a remedy for bad
situations. Forensic meaning ‘applying scientific knowledge to
legal issues’, implies interaction with that annoying sub-species
known as the lawyer. Although often quite knowledgeable
regarding the subject matter, few forensic investigators are
schooled in the cross-over between the engineering and legal
worlds. At the end of the day, the forensic expert is tasked with
educating a population unfamiliar with the environment in which
the incident occurred and the technology involved in the
incident. Forensic investigation starts with fact finding. For the
in-house investigator, this may be relatively easy. For the
consultant attached to litigation, fact finding is conducted
through a formal process called “discovery.” Contrary to what
many believe, preserving evidence and avoiding spoliation is the
responsibility of everyone involved in the investigation. Once
the facts are known, forensic investigators are tasked with
developing working theories, answering the unanswered
questions, and assigning probabilities to alternative
explanations. In complex scenarios, knowing what occurred to
the legal standard of “more likely than not” may become more
difficult than not. No matter what lawyers and employers tell
their forensic team, forensic investigators must remain
independent and at times be painfully honest. The worst
mistake made during an investigation is trying to develop
answers that serve one’s client that are contrary to the facts and
probabilities. Forensic experts should leave the “circle the
wagons” mentality to the attorneys. Many an expert (including
this author) has learned the costly lesson that being a “team
player” often does not survive the harsh and adversarial
environment of the courtroom. Letting the legal team assess
litigation risk based on the real truth and non-sugar-coated facts
serves the best interests of one’s client. Forensic investigators
should not play lawyer, should not play adversary, and should
not over-invest in the outcome of the investigation. They should
do what engineers are trained to do, the way that engineers are
trained to do it. In the words of the great Jack Webb, forensic
investigation is about “just the facts.”
Index Terms — Forensic engineering, expert witness, electrical
injury, electric shock, electric safety.
I. INTRODUCTION
Whenever there is an electrical contact causing substantial
injury or death, it is very likely that there will be an investigation
to determine the facts and the cause. It is likely that there will
be litigation during which the outcome of the investigation will be
tested in the adversarial world of our legal system. In a perfect
world, such "forensic" investigation would be conducted by
individuals who have no stake in the outcome and the results
would be conveyed independent of personal bias and external
pressures. In the real world, opposing forces often are brought
to bear so as to test the sufficiency, accuracy and honesty of
electrical accident investigations. Individuals are called upon to
swear or affirm that they have proper expertise and that their
opinions are honest and without bias. A judge and jury are
called upon to weigh the often opposing opinions presented,
decide questions of law (usually done by the judge) and
determine the answers to questions of fact (typically the domain
of the jury). Herein we will briefly explore the steps involved in
proper forensic investigation.
II. WHO SHOULD INVESTIGATE
A. Initiation
In most industrial environments, investigation occurs
immediately after an incident. The investigation is often driven
by those who have considerable financial and personal interest
in the outcome. Perspective defendants rarely like to find
themselves at fault. Employees tasked with conducting an
investigation can often feel pressures from above or feel a
sense of duty. Immediate independent investigation by agencies
such as OSHA is mandatory when an employee is injured.
When a product fails, initial investigation is often conducted by
the Plaintiff who is looking for someone (presumably with deep
pockets) to blame. Plaintiff-driven investigations often don't
even begin until the injured party suspects they may have a
basis for litigation, and have brought an attorney on-board.

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B. The Investigator(s)
The investigation is ultimately relegated to individuals who
must be bound by their duty. Any investigator must recognize
that:
1. He/she should not conduct investigations into issues
that are outside the scope of his/her expertise and
2. Any opinions he/she has to offer will likely be tested
under adversarial conditions in front of judge and jury.
3. Opinions will be offered under oath, to a legal standard
and he/she has a moral, legal, and professional
obligation to honesty and must not succumb to external
interests or pressures.
Lack of expertise and demonstrable bias give a jury reason to
give little or no weight to opinions even when offered under
oath.
C. The legal standard
All opinions offered in civil litigation are offered to the standard
of "more likely than not" meaning that in the view of the
investigator there is a greater probability that something is a fact
than it is not. This is a pretty low standard but should be taken
very seriously when attached to an experts determination of
facts and cause. Offering the opinion that something is merely
"possible" is the same as having no opinion and is frequently
excluded from ever being heard by the jury.
III. THE INVESTIGATION (JUST THE FACTS)
Although litigation may never occur, all investigations should
be conducted assuming that litigation is inevitable.
Investigators should have the single-minded goal of applying
their expertise to determine to the legal standard what occurred,
how it occurred, and to what extent parties were involved in the
occurrence. It would be appropriate for an investigator to offer
the opinion:
"It is more likely than not that the injured party received a
shock because he violated OSHA mandated clearance
requirements, failed to wear or use required PPE, and that
the injured party failed to use judgment that was the
standard and practice in the industry."
An investigator should not offer a legal opinion such as to say
that the:
"Injured party was negligent."
A. Immediacy
The quicker the investigator(s) come on scene, the more
likely they are to collect data that accurately reflects the true
facts of the incident. Almost immediately after an electrical
contact, the environment starts to change. Removing the
injured party, changes in time, temperature, humidity, physical
environment, and spurious conditions may completely change
the electrical landscape. Restoring an electrically safe work
environment almost always causes a loss of valuable data.
Photographs, video, and an extensive documentary record
should be gathered as soon as possible after the incident and
maintained to assure that opinions derived from the evidence
are supported by provable facts. The goal of first investigators
must be to capture an accurate snapshot in time.
B. Spoliation of Evidence
Spoliation is defined as the intentional or negligent
withholding, hiding, altering, or destroying of evidence relevant
to a legal proceeding [1]. In some jurisdictions this may be
actionable in civil proceedings against the involved expert. At
the least, if a jury perceives that an expert acted to alter or
withold evidence that may be material to the investigation, they
may choose to disregard all or part of that expert's testimony
and opinions or, by inference, assume that the adversarial
opinions are correct.
All experts involved in any investigation must thus act to
preserve and document all evidence to whatever extent is
possible and feasible. Care must be taken to assure that any
appearance of inpropriety is avoided. Opposing parties will
have equal and fair opportunity to find facts, and to assess and
investigate the incident.
C. Chain of Custody
Anything preserved from the accident scene must be taken
into the custody of someone willing to take responsibility for
assuring that the evidence is not altered, damaged or changed.
A record of who has custody, where and under what conditions
evidence is maintained, who has interacted with the evidence,
and the history of custody must be meticulously maintained.
IV. LITIGATION
For those trained to think like an engineer, entry into the
adversarial world of litigation can be quite daunting. There are
a few key components that the forensic expert should be familiar
with.
A. Discovery
Discovery is the formal process by which both sides gain
access to information and opinions held by the other side.
Discovery includes requests for production of documents, formal
questions called interrogatories, and questions asked orally and
under oath, in the form of sworn depositions.
Except in rare jurisdictions where "trial by ambush" is the
standard, the general rule is that nothing may be admitted at
trial that has not previously been available through discovery.
The sole purpose of the forensic investigator is to answer
questions and offer opinions within the scope of his expertise to
the legal standard so that the trier of fact can make informed
decisions.
The general rule is that any communication or writing by an
expert is discoverable. The expert's client is not the expert's
attorney and there exists no attorney-client privilege. The expert
should not say it, write it, or think it unless he wants to tell it
under oath.
Information known to the forensic investigator may be
discovered in a variety of ways:
 1) Expert Report: In some instances, an expert is asked to
commit his opinions to paper. (Use of reports is jurisdiction
dependant.) Reports must state the basis of the expert's
expertise, what the expert relied upon to form his opinions, and
the opinions formed to the legal standard (with explanation and
justification.)
2) Expert Deposition: The deposition is used by the
opposition for fact finding, as well as to establish the bounds
and basis of the expert's expertise, methodology and opinions.
Although absent both judge and jury, expert's are under oath
and have to answer questions put to them by counsel as if
testifying in court. Absent a judge to rule on objections made
during deposition, all questions must be answered with rulings
on objections to be made at a later time.
B) Admissibility of Expert Opinions
The courts in an effort to avoid junk science or unreliable
expert testimony have established requirements that must be
met before it can be presented in court. There exists two
common standards (based on jurisdiction) that define whether
expert testimony is admissible:
1) Frye Test: The Frye standard requires "the thing from
which the deduction is made must be sufficiently established to
have gained general acceptance in the particular field in which it
belongs.[2]
2) Daubert Test: Daubert is the more recent standard
requiring the court to act as a gatekeeper for scientific evidence.
Going beyond Frye, Daubert requires that evidence be 1)
relevant and 2) reliable where reliability can be established in a
variety of ways including but not limited to general acceptance
(Frye).[3]
C) Expert Appearance at Trial
An expert's testimony is typically broken into three (or four)
parts.
1) Voir Dire (meaning that "which is true"): During voir dire,
an expert's client make's inquiry about the expert's history,
education and expertise. Opposition counsel inquires in a
manner to demonstrate that the expert's expertise is limited or
that the expert is not an expert in the matters before the court.
At the conclusion of voir dire, the judge will typically qualify the
expert or limit the expert's range of testimony.
2) Direct Testimony: During direct testimony the expert
answers questions put to him by his client. The questions are
intended to establish the expert's opinions. The expert is limited
to only that offered in prior deposition or in his report and can go
no further than the scope of his expert qualification established
during voir dire.
3) Cross Examination: During cross examination, opposition
counsel asks questions intending either to limit or disprove
opinions offered during "direct" or to demonstrate credibility
issues (known as impeachment.) Counsel is limited to
questions (excluding impeachment) as to matters brought out
on "direct." The expert may go beyond the scope of his report
and deposition in response to questions asked during cross-
examination.
3) Re-direct: Re-direct is used to get in the last word and
where necessary to clarify what the expert really meant and in
some instances to rehabilitate an expert that was damaged
during cross-examination.
V. DISCUSSION AND CONCLUSIONS
The forensic expert's involvement in the legal system is as a
fact-finder. His job is to provide information and opinions that
are beyond the knowledge of the lay-jury. He has the obligation
to conduct an unbiased investigation using his established skills
and expertise. He has the obligation to preserve evidence and
to act with honesty and integrity. The expert is used to educate
and inform the jury. The expert is responsible to provide
knowledge and opinions, in an understandable way, to
opposition counsel during discovery and for judge and jury at
trial. At no point does the forensic expert become part of the
legal team or a champion for the interests of any party. Experts
are not there to argue for either side but are there to present
facts upon which the trier of fact can form informed and
intelligent opinions as is necessary to the function of the legal
system.
VI. REFERENCES
[1] Blacks Law Dictionary, 8th edition 2004.
[2] Frye v. United States, 293 F. 1013 (D.C. Cir. 1923)
[3] Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 -
1993
VII. VITA
Dr. Michael Morse has spent much of the last two decades of
his professional career studying the effects and outcomes of
electrical contact on the human body and consulting as a
forensic expert in electrical injury and electrical product failure
cases. As both an engineer and a lawyer, Dr. Morse has
focused his efforts on cases involving failure of engineering
technology at the interface between humans and human-
made technology. Much of his expertise goes directly to
considering how engineering failure, injury, and litigation could
have been avoided if the engineering design process had
been followed so as to comport with the standards of the law.
Born in New York way too long ago, Dr. Morse received his
BS and MS in Biomedical Engineering from Tulane University
in New Orleans in 1981 and 1982. He went on to get his Ph.D
from Clemson University in South Carolina in 1985. After a
brief stint in industry, Dr. Morse joined the faculty of Auburn
University in 1987 where he developed a successful
consultancy in the area of electric shock injury and
electromechanical product failure. Over the last two decades,
on many occasions, he has testified as an expert witness in
both state and federal courts.
In 1990 Dr. Morse joined the Electrical Engineering faculty at
the University of San Diego, reaching the rank of Full
Professor in 2004. Between 1995 and 1999, he attended USD
School of Law and was admitted to the California Bar in 1999.
His ongoing research includes studying and simulating the
real pathways followed by current during an electrical accident
and analyzing the potential for injuries such as electrically
induced Carpal Tunnel Syndrome as well as studying rare
responses to electrical contacts which he has come to
characterize as Diffuse Electrical Injury (DEI).