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What Engineers Should Know about the CSB and COM
ASSEJoseph M. SchreiberDecember 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
Sometimes You Get Warnings of a Disaster
BP
Texas City, Texas
03-23-2005
Most Times You Don’t
Imperial Sugar
Port Wentworth, Georgia
02-07-08
A MASSIVE DUST EXPLOSION (14 Killed, 36 Injured)
The Chemical Safety and Hazard Investigation Board (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
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
Team approach
Interviews – recorded - tag team style
Extensive/insightful document requests
Multiple site inspections
Rinse and repeat
CSB Investigation
03-23-2005 – CSB News Release
CSB Team Headed to BP
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.
Team Approach
04-28-2005 – CSB News Release
Status 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.
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
CSB Issues
Usually Followed by Litigation
Perception is as important as reality to CSB, as well as in litigation
12-18-2006 - Financial Times
BP 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
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 …
Cannot Blame Employee Error
06-21-2005 – The Daily News
Fired 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.
Errant employees are not a root cause, but instead are a symptom of an underlying root cause
- Center for Chemical Process Safety
CSB: System Failure
CSB: Nor is Ignorance Bliss
Risk Management, Quantification
Quantification of risk is increasingly important
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 Wrong Way To Do It
The Wrong Way To Do It
The Wrong Way To Do It
(Cost of Improvement) x (Cost of Failure) =
(Likelihood of Occurrence)
Cost to get from 99.9 to 99.999%
The Right Way to Do It
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
The Right Way to Do It
Take a deep breath
Boots on the ground
Beware of bureaucrat-itis (29 CFR 1910.119(m), et. seq.)
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
Recommendations
Certificates of Merit in Suits Against Engineers
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
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
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. Sardari
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 Prod.
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. Howe
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. 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 COM
Joseph M. SchreiberVorys, Sater, Seymour and Pease LLP700 Louisiana St., Suite 4100Houston, TX 77002(713) [email protected]
