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Preserving evidence with fast response accident investigation.

WORKPLACE accidents will usually occur at the most inopportune time. Regardless of the cause of an accident, it is only a matter of time before the company, its insurer and professional accident investigators will be trying to sort out the facts in order to assess financial damages and determine the responsibility for the accident.

Throughout this process, accident investigators continually hear one statement from risk managers, insurers and defendants' and plaintiffs' attorneys alike: "Just tell me what happened, and tell me as soon as possible." Such a statement is not surprising; companies and their insurers and all attorneys want an early and accurate picture of how the accident occurred. Factual evidence can be obtained through an immediate, meticulous accident investigation conducted by experts who analyze the cause of an accident and preserve any and all evidence.

However, in many cases risk managers do not take the appropriate steps to secure and protect the evidence that is available at the accident scene. Consequently, this accident-related evidence, which constitutes the only proof as to how the accident actually occurred, is often lost, thereby preventing its use in case exposure evaluation, negotiation settlement or litigation. As a result, risk managers must implement measures to ensure that a rapid, competent on-site accident investigation is conducted that secures the site and preserves important physical evidence. This type of approach, known as a fast response accident investigation, will optimize the investigation's results and save key evidence, thereby resulting in the lowest possible settlement or litigation costs.

INVESTIGATING THE ACCIDENT

An accident can be defined as an unexpected or undesirable event that occurs at a specific point in time. Considering the vast amount of litigation that accidents engender, perhaps it would be more appropriate to add the statement "which will lead to protracted and costly litigation" to this definition. If an accident occurs, and someone is injured or there is property damage, a lawsuit is almost sure to result. Therefore, in light of the high costs of litigation, accident investigators will analyze all evidence associated with the accident to determine responsibility.

What is needed is a snapshot of the forces, events, positions and actions of the people involved that led to the accident. If accident investigators were present at the time of the incident and had a sufficient number of cameras and film, good lighting, and the proper viewing angle or angles, they could quite possibly record a rapid sequence of photographs that would document the event perfectly and completely. However, more often than not, accident investigators don't even have decent "just after it happened" ]photographs, and probably no scene photographs whatsoever. In addition, any physical objects associated with the incident, whether they are actual evidence or extraneous materials, were likely to have been altered by people who do not realize that tampering with such objects can greatly hamper the investigation.

Unfortunately, examples of lost evidence are numerous. For instance, after a high pressure gas well exploded on federal land, a forest ranger picked up a small tubing coupling left from the explosion, and took it home as a souvenir. As it turned out, the coupling joined two pieces of pipe that came apart and caused the explosion and was therefore the key piece of evidence. In other cases, accident-related evidence is retained but not protected. In one example, a high pressure fitting involved in an accident was handled by several attorneys before experts could examine the object and take photographs. As a result, its position and condition were inadvertently but completely altered.

THE FAST RESPONSE

The goal of the fast response accident investigation approach is to get at least one team of experts onto the accident scene as quickly as possible. This plan requires having a procedure in place that allows legal counsel and the company's insurer to establish or authorize action by this team - which would consist of competent, professional accident investigators known as the "Go Team" - and dispatch the team to the scene immediately after an accident has occurred.

The National Transportation Safety Board (NTSB) provides a good example of how such a team operates as part of the fast response accident investigation. The NTSB team, which responds to aircraft accidents and other transportation-related catastrophes, consists of trained, experienced and professional accident investigators who are ready at a moment's notice to respond to a downed aircraft or any other maj or accident.

The procedure operates by having the Federal Aviation Administration (FAA), which monitors airborne aircraft, dispatch an NTSB team appropriate to the aircraft's type and size onto the scene. The mission of the Go Team is to secure the site; photograph and document whatever evidence and/or debris may be important; gather, preserve, and analyze the evidence and debris; and prepare a factual report concerning the accident.

However, the process for the Go Team has to be well planned, with specific procedures in place. First and foremost, most companies will not have an organization such as the FAA to provide immediate notification whenever an accident occurs. As a result, the risk manager has to ensure that the company has a procedure in place for alerting and dispatching the Go Team. For example, at one major oil field service company, all field supervisors, who are present with work crews at each well site, are under explicit instruction to call the company attorney whenever an accident occurs that results in bodily injury or property damage. The attorney, who is authorized to contact each member of the Go Team at a moment's notice, then determines the seriousness of the accident and, subsequently, the necessary level of response.

Depending on the severity of the incident, the attorney decides if one, two or all three Go Team members are to be dispatched. In the case of this particular oil field service company, its Go Team has substantial credentials: Two members hold doctorates in engineering and have over 20 years of accident investigation and litigation experience each, and the third member has a bachelor's degree in petroleum engineering and 35 years of experience.

A big advantage to using a Go Team is that it ensures that trained experts - the Go Team members themselves - are involved in the investigation. In fact, although in many cases safety officers, insurance adjusters and various members of the company's management team may be present during the on-site investigation, the Go Team members are probably the only ones present who have the credentials necessary to allow them to testify as expert witnesses.

However, as our society has become more litigious, additional interested parties and/or their representatives want to become involved in the investigation; as a result, if other accident investigators, aggressive insurance adjusters, potentially adverse consulting or expert witnesses, or any "take charge" managers are present and wish to get involved, the Go Team members can be authorized to obtain written agreements concerning the alteration of any physical evidence. To ensure the integrity of the evidence, the Go Team should photograph and remove or secure all critical evidence, and then store and evaluate it under controlled laboratory conditions.

To get the best results from a fast response accident investigation, risk managers should ensure that "incident" operational procedures are designed to immediately notify and dispatch the Go Team soon after an accident occurs. Any delay could result in lost or altered evidence. In light of this fact, the fast response plan will work somewhat less effectively if the procedure is initiated by the company's insurer; nevertheless, if the insurer is responsible for sending out the Go Team, the risk manager can make sure that the team is quickly dispatched to the scene by notifying the insurer immediately after an accident has taken place.

However, some companies will be able to respond to an accident more quickly than others. For example, most companies that sell a service have a presence on-site, and can thus respond immediately in the event of an accident. In addition, some manufacturers have a close relationship with their customers, thus placing them in a position to learn about an accident shortly after it happens. However, other firms, particularly large manufacturers such as automotive companies, have little knowledge or control as to how their product is being used. In some cases, these companies will have to wait until after litigation is initiated before they can conduct an investigation as to how and why the accident occurred.

ANALYZING THE EVIDENCE

The job of sifting through and examining the evidence is painstaking. In most cases, when the expert recovers the evidence after the accident, it will be in the form of various bits and pieces of debris, and will usually not be backed up by any type of site distribution map or location photographs taken before the debris was moved off-site. However, the investigation can be facilitated through the microscopic analysis of evidence that can reveal "witness marks," showing that a fragment made contact with another object, a burn pattern, or some form of "fingerprint."

At the end of the investigation, many pieces of the puzzle may still be missing, but in most cases the investigator will be able to assemble the pieces that are available into a meaningful whole. The goal of the accident reconstruction analysis is to discover how and why the accident occurred. Only after the accident's cause has been ascertained can the issues of liability and exposure be dealt with. As has been demonstrated, employing the fast response accident investigation concept immediately after an accident occurs is the surest way to secure the site, preserve important evidence and ensure that the investigators have the best opportunity possible to conduct a thorough analysis.

A CASE STUDY

By using a fast response accident investigation, a company can discover the cause of an accident and preserve or at least document all key evidence. As the following case attests, retaining and documenting evidence can determine the outcome of litigation.

In this case, an ofl well blowout caused by the malfunctioning of a piece of high pressure equipment resulted in the death of a worker. A Go Team was on the scene within three hours after the accident.

The accident investigators discovered that a high pressure fitting had separated from the wellhead lubricator; obviously, this fitting would be a major piece of evidence in any upcoming litigation. The investigators photographed the equipment, which was covered with wet drilling fluid (mud), and was still attached to the wellhead.

Through their examination of the equipment, the investigators could determine that when the accident occurred, a portion of the equipment blew violently away from the wellhead, killing the worker. It was evident that the position of a sealing cap O-ring and its point of rupture would become critical in the ensuing litigation, as would the disrepair of the flange and O-ring groove. These items were photographed from numerous distances and perspectives both before and during each step of the removal process from the drilling floor.

As it turned out, the equipment piece that blew apart was owned by another service company; consequently, its management was very concerned about its degree of liability. Through agreement with this company, the investigators set the equipment on a rack, positioning it so that the mud could be drained from the critical areas. The investigators then took important, close-up photographs of the flange. The investigators also obtained a verbal agreement with the company that owned the damaged equipment that allowed them to carefully wash away the drilling fluid from the flange surface. Additional photographs were taken after the wash, but removal of the O-ring and complete cleanup of the flange were not allowed.

During the investigation, it was agreed that the owner of the equipment, who was certainly acting within his legal rights, would take control of the failed device. According to the agreement, the day after the investigation, all interested parties or their representatives were to be allowed to examine the device at the company's nearby office, be present when the O-ring was removed, and be allowed to observe the cleanup of the flange and other half of the subject device. The company would also allow photographing of the entire procedure.

However, on that day, the company that owned the equipment did not grant anyone admittance to its shop. It was apparent that the spirit of cooperation had abruptly ended. Three years later, when the resulting litigation was in full swing, the defendant oil company and its counsel discovered that the following had occurred:

* The company that owned the equipment had cleaned the flange and had removed the O-ring. In addition, no photographs or diagrams had been prepared or taken to document its position before or during removal.

* The upper half of the device, which had been dangerously modified by the owner and had possibly contributed to the accident, had been ruled dangerous by an Occupational Safety and Health Administration investigator; in response, the owner had discarded the upper half of the device and about a dozen comparable pieces of equipment.

* The subject flange had been engaged and disassembled as many as 100 times, thereby rendering most markings and scratches useless as evidence.

* The blowout preventer - which probably contained vital evidence - had been reworked, and all sealing surfaces had been discarded and replaced.

However, the effects of the first two points above and a portion of the third were negated when the various legal representatives learned that an on-site investigation and photographic documentation had been conducted by a Go Team acting on behalf of one of the other defendants. After it became evident that the true condition of the equipment had been photographically documented at the scene and before the component pieces were removed and disassembled, the parties reached a reasonable settlement.
COPYRIGHT 1993 Risk Management Society Publishing, Inc.
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 1993 Gale, Cengage Learning. All rights reserved.

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Author:Jerner, Craig R.
Publication:Risk Management
Date:Feb 1, 1993
Words:2279
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