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What Engineers Should Know about the CSB and COM. ASSE Joseph M. Schreiber December 1, 2011. Overview. CSB and disaster response Certificate of Merit requirement in suits against engineers. CSB Overview. Who is the CSB How the CSB operates Inevitable litigation Recommendations.

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what engineers should know about the csb and com

What Engineers Should Know about the CSB and COM

ASSE

Joseph M. Schreiber

December 1, 2011

overview
Overview

CSB and disaster response

Certificate of Merit requirement in suits against engineers

csb overview
CSB Overview

Who is the CSB

How the CSB operates

Inevitable litigation

Recommendations

most times you don t
Most Times You Don’t

BP

Texas City, Texas

03-23-2005

slide6

A Massive Dust Explosion

(14 Killed, 36 Injured)

Imperial Sugar

Port Wentworth, Georgia

02-07-08

slide8
CSB

It’s a political agency

Established in 1990 but didn’t begin operations until 1998

Annual budget of $10 million but expanding rapidly – Denver office

slide9
CSB

Does root cause investigations

Process safety management permeates CSB’s philosophy

CSB will always find safety management systems flaws, including inadequate training and drills, at the root of any accident

csb investigation
CSB Investigation

Team approach

Interviews – recorded - tag team style

Extensive/insightful document requests

Multiple site inspections

Rinse and repeat

03 23 2005 csb news release csb team headed to bp
03-23-2005 – CSB News ReleaseCSB Team Headed to BP

Team Approach

Investigators from the U.S. Chemical Safety and Hazard Investigation Board (CSB) are en route to Texas City, Texas, site of a reported explosion and fire earlier this afternoon.

04 28 2005 csb news release status of csb investigation
04-28-2005 – CSB News ReleaseStatus of CSB Investigation

We currently have a staff of 10 investigators and experts at the site. In our first five weeks, we have conducted detailed interviews of about 120 witnesses and collected more than 10,000 pages of documentary evidence.

csb issues
CSB Issues

Counsel may attend interviews

CSB respects attorney/client privilege

Protecting documents and interviews from FOIA requests

Texas’ self-audit privilege

It’s still an 800 pound gorilla

12 18 2006 financial times bp execs not so contrite after all
12-18-2006 - Financial TimesBP Execs Not So Contrite After All

BP’s head of Refining and Marketing was ordered to interrupt his vacation to go to Texas City after the explosion. In an e-mail he complained:

“I arrived in Texas City at 3 am and spent the day there – at the cost of a precious day of my vacation.”

05 18 2005 houston chronicle bp blames staff for blast
05-18-2005 – Houston ChronicleBP Blames Staff for Blast

Cannot Blame Employee Error

BP on Tuesday placed the lion's share of the blame for the deadly blast at its Texas City refinery at the feet of low- and mid-level workers who it said were lax in following written company procedures …

06 21 2005 the daily news fired bp employees sue company
06-21-2005 – The Daily NewsFired BP Employees Sue Company

Two BP refinery workers fired after the March 23 blasts have sued the company. The workers claim they were defamed by a report that pins much of the blame for the accident on employee errors.

csb system failure
CSB: System Failure

Errant employees are not a root cause, but instead are a symptom of an underlying root cause

- Center for Chemical Process Safety

risk management quantification
Risk Management, Quantification

Quantification of risk is increasingly important

risk management quantification1
Risk Management, Quantification

CPRC 41.001 (11)(A):

Gross negligence. In order to prove gross negligence, the plaintiff must prove either: (1) the act or omission, when viewed objectively from the defendant’s standpoint at the time it occurred, involved an extreme degree of risk, considering the probability and magnitude of the potential harm to others. Tex. Civ. Prac. & Rem. Code Ann. § 41.001(11)(a) (2007)

the right way to do it
The Right Way to Do It

(Cost of Improvement) x (Cost of Failure) =

(Likelihood of Occurrence)

Cost to get from 99.9 to 99.999%

risk cost and benefit
Risk, Cost and Benefit

Atrazine

Benzene

Asbestos

Collapsing steering column

Pinto muffler repair

Cost to Save 1 Life

$92 billion

$8.9 million

$8.3 million

$100,000

$11

recommendations
Recommendations

Take a deep breath

Boots on the ground

Beware of bureaucrat-itis (29 CFR 1910.119(m), et. seq.)

recommendations1
Recommendations

Avoid Ready-Fire-Aim mentality

Communicate

Know your story before answering any questions or the media and plaintiffs’ counsel will write it for you

texas has a statute which effectively protects engineers from lawsuit
Texas has a statute which effectively protects engineers from lawsuit

§ 150.002. CERTIFICATE OF MERIT. (a) In any action or arbitration proceeding for damages arising out of the provision of professional services by a licensed or registered professional, the plaintiff shall be required to file with the complaint an affidavit of a third-party licensed architect, registered professional land surveyor, or licensed professional engineer competent to testify, holding the same professional license as, and practicing in the same area of practice as the defendant, which affidavit shall set forth specifically at least one negligent act, error, or omission claimed to exist and the factual basis for each such claim. The third-party professional engineer, registered professional land surveyor, or licensed architect shall be licensed in this state and actively engaged in the practice of architecture, surveying, or engineering.

uop v kozak no certificate of merit
UOP v. Kozak: No Certificate of Merit

UOP designed the Sun Oil Refinery in Duncan, Oklahoma in the 1950’s

It contained asbestos insulation, gaskets and other asbestos products

Plaintiff worked at the refinery and contracted mesothelioma

uop v kozak what the court of appeals held
UOP v. Kozak: What the Court of Appeals Held

Certificates of Merit are mandatory

The substance of Plaintiff’s pleadings must be examined

The Texas Occupation Code defines what engineering practice is

Any claim involving an engineer’s status or knowledge requires a COM

carter burgess v sardari1
Carter & Burgess v. Sardari

Plaintiff did not produce a COM

Plaintiff complained about work by a non-engineer in managing construction

Overlap between the claims and Occupation Code controls

A loose fit is enough

howe baker v enterprise prod1
Howe-Baker v. Enterprise Prod.

Plaintiff produced a COM by a professional expert

Defendant tried to narrow the expertise

Overlap between the subject of the expert’s knowledge and the subject of the case

Perfect matching of the expert and the case is for trial, not the COM

td industries v howe1
TD Industries v. Howe

Plaintiff was a janitor injured by a freight elevator door

Defendant had a contract to manage the convention center

COM not produced

td industries v howe2
TD Industries v. Howe

The claims were failure to keep a proper lookout, failure to maintain the elevator

These claims did not involve engineering knowledge or judgment

When an engineer is sued, a COM is not required where engineering knowledge is not in issue

what engineers should know about the csb and com1

What Engineers Should Know about the CSB and COM

Joseph M. Schreiber

Vorys, Sater, Seymour and Pease LLP

700 Louisiana St., Suite 4100

Houston, TX 77002

(713) 588-7000

jmschreiber@vorys.com

www.masstortsstateoftheart.com