The Other Side of Safety—Litigation and the Expert Witness

What happens when you suffer a catastrophic injury at work and can’t continue in your career? Workers compensation begins. Those payments last until you reach the maximum medical improvement point. How long will you receive those benefits? It varies from state-to-state. In California, for example, benefits pay up to 104 weeks for most injuries and up to 240 weeks for severe conditions. Workers comp ends when you return to work, but you can do modified-duty work while getting benefits as long as you follow your doctor’s restrictions.

Why am I focusing on this issue? Because I perform work as an expert witness in the transmission and distribution utility industry. I have four decades of experience in this field having worked as a lineman, line foreman, and line supervisor—training and educating linemen since 1988, and retiring in 2015.

For the past nine years I have worked as a consultant and expert witness. My duties as an expert witness are to review all aspects of a case that I am hired for, teach the lawyers, and take part in depositions, trials, mediation, and writing reports. Unfortunately, I have seen my share of catastrophic injuries and deaths amongst linemen, and nothing good ever comes from these events.

A General Example

Let’s say you’re a lineman who is injured and loses a limb. That ends your career. There is no job modification that will allow you to return to work performing as a lineman. There may be other career paths, but most of them result in a significantly reduced income. If you’re a journeyman, there might be some opportunities. However, if you’re an apprentice, more likely than not, you’ll have to find another career.

Line workers can easily make six figures annually. How do you adjust from making six figures down to minimum wage? You’ll be offered a settlement for your injuries, and maybe some other training and education opportunities, but that’s about where it ends. What other avenues are there for the injured party? You can’t sue your employer, so the next course of action is to sue someone else or some other company associated with the work when the incident occurred. I have represented utilities, contractors, manufacturers, telecoms, and more. Litigation is a brutal process in which both sides seek to protect their clients, and in the end, nobody truly wins.

You want to know the worst part of all of this? It’s the family and friends left behind. It’s sitting on the witness stand and looking at the widow and children of the dead lineman and having to testify as to why he or she died, and how it could have been prevented.

Being an Expert Witness

How does being an expert witness work? I get contacted by an attorney for an initial interview to see if I possess the necessary training, skills, and expertise for their case. Being a lineman, I possess a certain set of skills that comes from actually having done the work. The number of lineman expert witnesses is very small. To the best of my knowledge and interaction with those other experts, I would estimate there are less than 10 of us in the entire field.

After the interview, I send the lawyer my CV (Curriculum Vitae). A CV provides details about your professional background, basically documenting your entire career. A retention contract, a W-9, which is my income tax status, and my case list are also typically required. The case list is the list of all of my previous cases in which I was deposed and/or testified at trial. Once an agreement is signed to utilize my services, the lawyer will arrange to deliver documents and exhibits for me to review and to start to form my opinions.

The opinions of the expert are typically the linchpin of the case. They can make it or break it. What is an opinion? It is a belief, a way of thinking, it is something that has to be formed in order to validate either the plaintiff’s side or the defendant’s. Guess what? Opinions are formed in all accident investigations. When an employee is injured at work the investigating team has to review the evidence and draw conclusions, then recommend courses of action to ensure that in the future a similar accident can be avoided.

It is not enough to have an opinion, you have to justify that opinion. That means you have to have a “basis for your opinion.” This is where the devil is in the details.

For example, let’s say that you’re investigating an accident in which an employee was injured due to the failure of a piece of equipment. The plaintiff states that the equipment was faulty—it didn’t meet the industry’s standards, was not manufactured in a proper manner, or had some other defect. The plaintiff’s experts are mechanical and materials engineers. They test the equipment, take it apart, and conclude that under the testing they did, the equipment failed, therefore, the manufacturer is at fault.

Now, I’m hired by the manufacturer. I’m not a trained engineer, so my assignment is not to counter the engineering aspect of the equipment, but rather, the human performance issue. These are the things I will be reviewing:

• Training Record. Was the employee trained to safely operate that piece of equipment, and if so, when was the last time they received refresher training?
• Job Briefing. Was there a job briefing on the day of the accident? Was it documented and what was discussed?
• Performance Record. How had the employee performed in the past? Was there a history of safety violations or other job performance deficiencies?
• Occupational Safety and Health Administration (OSHA) Reports. What did the OSHA investigation find—particularly what were the conclusions and was the employer cited?
• Follow-up Actions. Was the crew tested for drugs and alcohol immediately following the incident? Was anyone disciplined or terminated because of the incident?

I also perform a root cause analysis and analyze all of the contributing factors. These are the things that help me to form opinions and the basis of my opinions.

Who’s Responsible for Safety

As I write this article, I am involved in several cases where a lineman was either killed or severely injured. What I have discovered over years of accident investigations, litigations, and reviewing tens of thousands of documents, photos, and other exhibits is that in the majority of my cases the injured party failed to follow safe work practices, safety procedures, didn’t apply common sense, or flat out disregarded the rules.

What about the employer? Do they bear some responsibility for these accidents? You bet they do. When I review documentation from job briefings, training and education, and performance evaluations, I find huge holes in the information and lots of discrepancies.

It is extremely frustrating to observe the lack of quality and professionalism on the part of the employer and the employee. When I read that the injured/deceased worker had these great performance evaluations, yet somehow, they refused to follow the very basics of electrical safety, I start to form my opinion of the employer and how they didn’t do their due diligence when evaluating the skillsets of the employee.

Here are some simple things you can do as a lineworker to have a long and profitable career, along with watching your children grow up, walking your daughter down the aisle, celebrating the birth of your first grandchild, etc.:

• Know the rules, learn your trade, and become a professional. Be a master craftsman who accepts nothing less than the best of themselves and those around them.
• Coach and mentor the next generation—that apprentice might just save your life one day.
• Don’t be arrogant, listen to what others are saying on the crew.
• Exercise “Stop Work” authority. If something isn’t right or isn’t safe, you’re obligated to stop the work.

I could go on, but hopefully this short article will provide insight to all who read it. Stay safe and have great life.

—Max Fuentes is a transmission and distribution utility consultant and expert witness, and owner of Fuentes Consulting LLC.