Professionals who undertake the role of expert witnesses in litigation need to be impartial and owe a primary duty of care to the court and subsequently to their clients. This duty of care can definitely be breached. The judicial process will be improved only by requiring expert witnesses to perform their work to the degree of care, skill and proficiency commonly exercised by the ordinarily skillful, careful and prudent experts of their respective professions. However, the minority of jurisdictions have held that an expert witness’s work and testimony performed during the course of litigation are privileged in accordance to the doctrine of witness immunity.
In a negligence case, Michaels v. CH2M Hill, Inc., 257 P.3d 532, 542 (Wash 2011) CH2M, an engineering firm, was hired as an engineering consultant by the city to upgrade and retrofit a sewage plant, and to design and manage an upgrade to and redesign of the recirculation and heating systems for the digests. During the improvements as the plant continued operating, the digester dome at a sewage treatment plant collapsed causing death an injury. The victims’ family brought a negligence action, establishing the existence of a duty, a breach of duty, a resulting death and injury, and proximate causation between the breach and the resulting death and injury. The court held that defendant “owed these plaintiffs … both a contractual and a common law duty to exercise that degree of skill and diligence normally employed by professional engineers or consultants performing the same or similar services at the time said services were performed.”
Apparently, the city’s plant had been struggling to keep the digester containers warm enough for necessary bacterial activity, particularly as the density of biosolids in the digesters increased. For that reason, CH2M recommended separating the incoming unheated sludge flow from the heated sludge flow using valves to separate the flows. On the other hand, the City’s employees suggested using skillets instead of valves because it would be more convenient and less expensive. CH2M’s recommendations as to where the skillets were to be placed were made as suggested. The court held that CH2M accepted the proposal; given that, the skillet performs the same required function as a valve.
Consequently, the trial court found that defendant did not perform “any engineering analysis of the effects the flow separation and the skillets would have upon the City’s operation of the digesters” and that they did not prepare a written analysis of the changes. The installation of the skillets did not only change some standard pattern of flow: but it also required a change in the valving used by the plant’s operators to transfer sludge between the digesters. Unfortunately, any of the “key” supervisors were aware that the installation of the skillets would change the valving used by the city plant operators for the transfer of sludge between digesters.
Afterward, the city hired an independent engineering firm to investigate the disaster, concluding that the dome in fact floated up on the rising sludge and rotated, fracturing the anchors that had held the dome to the digester walls and cracking the dome, stating three main causes of the accident: the blocked overflow pipe; a malfunctioning monitoring system inside the digester; and the final, failed attempt to transfer sludge out of the digester. The firm also concluded that “[t]he pumping of liquid beyond the maximum design level and into the dome was the principal and sufficient cause of the accident.”
Although, in the plaintiffs’ negligence action against CH2M the city, as the employer of the plaintiffs, was immune according to the Industrial Insurance Act, all parties agreed that the city was also negligent. Therefore, the court held that CH2M had a duty of care mentioning that professionals, including engineers, owe a duty to “exercise the degree of skill, care, and learning possessed by members of their profession in the community.”
As a final point, the court determined that defendant failure to perform an “engineering analysis” of the impact of the skillets, its failure to “communicate to the City’s plant supervisors…in writing or otherwise, the effects of the installation of the skillets on the valving,” and its failure to provide “written analysis… constituted a failure to exercise the degree of skill and due diligence generally employed by professional engineers or consultants performing the same or similar services.”