“Engineering Standard of Care”

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Environmental Engineering Expert 2213

The Field of Engineering

Engineers design and build things: airplanes, buildings, computers, light bulbs, and paper clips.
These are termed “engineered systems” since the fundamental construction of such “things”
requires varying expertise in engineering to ensure that the “thing” not only functions properly but
also is safe for normal intended use.
But “things” can and do fail. They fail due to poor design, poor construction, wear and tear, or poor
operation. Or inappropriate application. When failure does occur, the issue becomes: was the
Engineer who designed the “thing” responsible for its failure? Or was there some other cause?

What Does “Engineering Standard of Care” Include?

The term “Engineering Standard of Care” refers to the degree of prudence and caution required
of an individual, in this case an Engineer. It is necessarily tied to circumstances and facts. The
term includes a wide array of related terms, including the following:

Practice of Engineering
The practice of Engineering as a profession is intimately linked to formal education, other
supplemental training, project experience, and the requirements set forth by the Board of
Registration for Professional Engineers.

Practicing Engineering Without a License
Non-engineering professionals (e.g., biologists, chemists, geologists) frequently perform
engineering tasks and issue reports based on a very limited understanding of engineering
principles. In doing so, they practice engineering without a license.

Practicing Engineering Outside Area of Expertise
Registered Professional Engineers should only practice within their area of expertise, but
yet are free to render certain opinions outside that area based on overall engineering
principles. For instance, a mechanical engineer may offer certain limited opinions about
electrical systems, even though he/she is not an expert in electrical engineering.

Good Engineering Practice
Good Engineering Practice (GEP) consists of proven and accepted engineering methods,
procedures, and practices that provide appropriate, cost-effective, and well-documented
solutions to meet user-requirements and compliance with applicable regulations.
Construction stems from engineering which stems from GEP. GEP underpins activities in
the day-to-day operations and forward planning of a business. The adoption of this
methodology leads to a balance of expenditure and activity. Further, it is the standard
practice of a significant portion of the pertinent industry for similarly situated facilities or
projects at that particular time, in the exercise of reasonable judgment in light of the facts
known or that reasonably should be known at the time, in a manner consistent with
Applicable Law, reliability, safety, environmental protection, economy, and expedition, and
taking into consideration applicable contracts or agreements. GEP is not intended to be
limited to optimum practice, but rather includes a spectrum of possible practices,
methods, or acts generally acceptable in the United States considering the circumstances.

Engineering Design Standards, Methods, and Practice
Standards, methods, and practice exist for all tasks and components that are part of an
engineering project. Engineering judgement and “grey beard engineering” also come into
play for many projects.

Engineering Approval and Certification
Some engineering work, especially for public facilities, requires formal approval and
certification by a Registered Professional Engineer. In doing so, the Engineer “blesses” the
work after appropriate review.

Engineer of Record
Many engineering projects and assignments require that the responsible Registered
Professional Engineer be identified and memorialized on key documents and drawings.
This is essentially a due diligence function.

Specifications and Drawings
Engineering projects and assignments have identified specifications and drawings for the
work which together serve as the “engineering design basis.” While alternative methods
generally exist for any project, the selection of preferred options is important.

Intended Use Versus Bandwidth Analysis
This principle relates to how narrow or broad an engineering design can be insofar as
performance, reliability, safety, and other metrics. For example, some designs and/or
materials can accommodate broad applications, whereas other designs and/or materials
are limited in application.

Reliability
This principle is generally defined as the degree to which information, data,
measurements, calculations, specifications, designs, reports, assessments, etc. can be
depended on to be accurate and meaningful.

Predictability
This principle is generally defined as the degree to which a correct prediction or forecast
of a system’s status can be made either qualitatively or quantitatively. “Cause and effect”
is related to predictability.

Contract Terms and Conditions
All engineering projects and tasks have an executed contract, subcontract, purchase
order, task order, or other document that identifies and captures the scope of work,
deliverables, work methods, budget, schedule, etc. This also includes “change orders.”
Working without documentation can be highly problematic.

Breach of Contract
Breach pertains to a Registered Professional Engineer not conforming to the requirements
set forth in an executed contract that contains clear terms and conditions. Breach can be
intentional or incidental.

Process Safety Management (PSM)
A PSM review is typically conducted for any engineered system that has the potential for
failure or under-performance that could result in human injury or loss/damage to property.
PSM reviews help identify hazards and risks so that they can be corrected before
implementation of the engineered system.

Best Engineering Practices and Benchmarking
While there may be a wide array of methods for performing a task or designing an
engineered system, most Registered Professional Engineers strive to utilize the best
practices reasonably available. These practices are based on historical applications and
their success compared to alternatives.

Greybeard Engineering
Greybeard engineering refers to the judgement made by a Registered Professional
Engineer based on his/her experience on similar projects or tasks, sometimes without the
benefit of a comprehensive analysis.

Project Definition and Non-Conformance to Project Requirements
In a litigation scenario, these terms pertain to an evaluation of the original goals,
objectives, scope of work, design, and construction of an engineered system, compared
to any non-conformance identified which allegedly resulted in failure or underperformance.

System or Component Defects, Failures, Hazards, and Damages
Such occurrences result from incorrect specifications, manufacturing defects, poor
construction practices, poor operational practices, or failure to maintain and repair.

Responsibility for the Health and Safety of the General Public
A chief responsibility of a Registered Professional Engineer on all assignments is
decision-making that takes into consideration the health and safety of the general public,
irrespective of schedule or budget.

Conflict of Interest
Registered Professional Engineers should identify and avoid conflict of interest so that
all engineering work is performed on a sound technical basis, not a “political” basis.

Errors and Omissions
In a litigation or insurance scenario, the term “errors and omissions” refers to some level
of negligence by the Registered Professional Engineer or subcontractors/subordinates for
which he/she was responsible.

Professional Ethics and Code of Conduct
Registered Professional Engineers should maintain a high level of appropriate ethics and
conduct at all times, and on all projects.

Rendering of Engineering Findings and Opinions
In a litigation scenario, Registered Professional Engineers should render opinions based
on the available evidence, information, and data, and limit opinions to such information.
Opinions should be unbiased even if they differ from the client’s position.

Engineering, Procurement, and Construction Standard of Care
Engineering responsibility in the area of Standard of Care may relate to only the engineering
portion of a project, or it may extend to a broader scope:

Planning and Design
Engineering Design
Procurement
Construction, Construction QA/QC and Oversight
Commissioning and Operations

Frequently, engineers are assigned field tasks during the construction phase of a project. As an
example, an “in-field design review” may be required to construct an engineered system that
includes an engineering review of the system specifications and drawings. During construction,
an engineer may determine that the original design is not achievable, and “as-built” systems are
then completed, sometimes with and without the input or knowledge of the original engineer.
As another example, construction “errors” frequently occur. These errors may stem from
engineering, procurement of materials, procurement of construction personnel and equipment,
failure to perform in-field QA/QC oversight, etc. In some cases, vendor data from engineered
system components may be misinterpreted, misused, or omitted. Then the constructed system
may be prone to failure.Contractual “issues” may also arise. For example, vague and ambiguous language in the contract
may slide through reviews and not become problematic until an engineered system fails during
operation, and a lawsuit is filed. Then, the arguendo over terms such as “highest standard” begin.

Capabilities and Experience
Registered Professional Engineer in Texas, Nebraska, Louisiana, and Alabama
Engineering career since 1972 – present
Provided engineering services on hundreds of engineering projects, both small and large,
both simple and complex

Engineer at major engineering – construction companies:
RW Beck & Associates (Senior Engineer)
Brown & Root (Project Manager)
Pace Consultants (Senior Engineer)
NUS Corporation (Regional Manager)
MW Kellogg / KBR (Program Manager)
Halliburton (Principal Engineer)
Roy F Weston / Weston Solutions (Principal Engineer)
McLaren – Hart (Principal Engineer)

Projects Summary
To some extent, all my testimonies in deposition or trial have included the topic of
“Engineering Standard of Care.”
Work has been performed to support both Plaintiffs and Defendants.
Field of engineering and engineering design per se (e.g., designed systems).
Failure of manufactured products (e.g., a synthetic liner failed to protect the land and
groundwater from chemicals on the ground surface).
Under-performance of engineered systems (e.g., a wastewater treatment plant underperformed
in its removal of toxic chemicals from a waste stream).
Failure of high-risk systems (e.g., the failure of a high voltage power line during a storm
event).
Failure of constructed systems (e.g., employees experienced health injury due to a leak
from a tank that contained toxic chemicals).
Failure of out-of-sight systems (e.g., an underground line failed, resulting the release of
400 gallons of gasoline onto residential property)
Some of these cases involved providing engineering litigation support to the legal team
as a consulting, non-testifying expert.
Some of these cases involved providing engineering support to the legal team in litigation
as a testifying expert.
Some of the projects involved serving as a Confidential Consultant to review and
comment on work performed by other engineers and expert witnesses, and to assist the
law firm in developing a technical strategy.
Some of the projects involved preparing questions for the deposition of 30(b)(6)
witnesses.
Clients have included law firms, companies, individuals, and insurance carriers.

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