What Engineers Should Know about the CSB and COM

1. What Engineers Should Know about the CSB and COM ASSE Joseph M. Schreiber December 1, 2011

2. Overview CSB and disaster response Certificate of Merit requirement in suits against engineers

3. CSB Overview Who is the CSB How the CSB operates Inevitable litigation Recommendations

4. Sometimes You Get Warnings of a Disaster

5. Most Times You Don’t BP Texas City, Texas 03-23-2005

6. A Massive Dust Explosion (14 Killed, 36 Injured) Imperial Sugar Port Wentworth, Georgia 02-07-08

7. The Chemical Safety and Hazard Investigation Board (CSB)

8. 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

9. 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

10. CSB Investigation Team approach Interviews – recorded - tag team style Extensive/insightful document requests Multiple site inspections Rinse and repeat

11. 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.

12. 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.

13. 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

14. Usually Followed by Litigation

15. Perception is as important as reality to CSB, as well as in litigation

16. 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.”

17. 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 …

18. 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.

19. 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

20. CSB: Nor is Ignorance Bliss

21. Risk Management, Quantification Quantification of risk is increasingly important

22. 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)

23. The Wrong Way To Do It

24. The Wrong Way To Do It

25. The Wrong Way To Do It

26. 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%

27. 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

28. The Right Way to Do It

29. Recommendations Take a deep breath Boots on the ground Beware of bureaucrat-itis (29 CFR 1910.119(m), et. seq.)

30. 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

31. Certificates of Merit in Suits Against Engineers

32. 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.

33. UOP v. Kozak

34. 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

35. 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

36. Carter & Burgess v. Sardari

37. 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

38. Howe-Baker v. Enterprise Prod.

39. 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

40. TD Industries v. Howe

41. 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

42. 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

43. 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