The Value of Peer Review of Expert Reports in Insurance Cases

This article deals with the importance of peer review of reports of findings in expert technical investigations involving engineers, scientists and similar experts. Such investigations are typically for the purpose of assisting parties to an insurance loss determine the cause of the loss and the extent of the damage. This is required so that parties can determine if there is, or should be, coverage, who is liable to assist in cost recovery and/or defence against third party claims, estimate the value of property damage, remediation options, etc.

Peer review involves the review of a report by someone other than the report author but knowledgeable in the subject material, to ensure that the findings are as credible, objective, fair and reasonable as possible. I have been engaged in forensic engineering for the past three decades, thus one might think that I have a vested financial interest in advocating for peer review, because it generates more fees on a file. In reality, however, the fees for a peer review are a very small fraction of the fees for a typical forensic investigation. More importantly, as will be discussed in this article, a properly peer reviewed report will protect the credibility of the expert and ensure the success of the case. In that sense I do have a vested interest in advocating for peer review!

Unfortunately, over the past three decades I have repeatedly heard, from clients, “we don’t pay for peer review”. When that statement is made, the typical rationale is something along the lines of “We expect you to be an expert in your field, so why do you need someone else reviewing your work?”. I will explain the fallacy of that rationale and the benefit to the client of a proper peer review.

As stated earlier, the ultimate purpose of a peer review is to ensure that the report is credible, accurate, objective fair and reasonable. Does that mean that every peer reviewed report achieves those objectives? In my opinion, the answer is no, but it greatly increases the odds that the report will achieve those objectives. Why is that, if, to paraphrase many prior clients, we are expected to be experts in our respective fields? There are number of reasons, but I believe the following are the most typical:

• The Jack-of-all-Trades and/or scope creep problem;
• Tunnel vision, or one of the many forms of biases that humans can exhibit; and,
• The “rush to completion” syndrome, as I like to call it.

Jack-of-all-Trades / Insufficient Expertise

In some cases, where the expert is going beyond their expertise it is a simple case of the Jack-of-all-Trades syndrome (someone who thinks they are an expert in everything). An effective peer review should quickly cause the peer reviewer to point that out. Unfortunately, in my experience most Jacks-of-all-Trades do not regularly employ a peer review process, because they think they don’t need to (which is how they got to be Jacks-of-all-Trades in the first place!).

In other cases, it is the more innocent matter of an expert straying a bit beyond the original scope of work and getting into an area where his or her expertise was limited. This is done under the best of intentions - they are working through the file and something else pops up. The expert is trying to be as efficient as possible and thus it may seem perfectly reasonable to comment on this related issue without the added expense of another expert. This is not even to say their technical opinion is wrong, just that their background may not qualify them to support this portion of the opinion in court. In such cases a peer review can easily point out that deficiency and allow for the person with the required expertise to be engaged to assist on that file.

It is worthwhile noting that an expert straying outside of their area of expertise could “get away with it” years ago. Now, however, lawyers and insureds have become much more sophisticated and will push back hard against an expert that has strayed outside of their expertise. Judges may even prevent that expert from testifying at trial – not a good outcome for the party that retained that expert.

Tunnel Vision or Other Biases

There are a myriad of biases that exist (association, expectation, confirmation, anchoring, selection, etc.) which can impact the ability of an expert to provide a balanced and objective report of findings. Most often, Tunnel Vision is a significant factor - essentially the expert loses the perspective required because they have been involved with the file and all of the parties for some time. A peer review provides that perspective, because the peer reviewer was most likely not as intimately involved, if at all, with the case prior to reviewing the report. Sometimes the peer reviewer simply points out some additional areas that should be discussed, and sometimes they tell the author that they are completely incorrect! I have seen both, mostly the former case though, thankfully.

The Rush to Completion Syndrome

I made this title up, but I think it aptly describes the tendency that anyone can find themselves in - they have finally finished their report, want to print it (or PDF it) and get it to the client who they know is eagerly awaiting the report! A peer review slows that down and ensures that a sober second look occurs. While this may seem like a minor issue, in my experience, both reviewing other reports and having my own reviewed, that sober second look catches many things that otherwise would have been missed. Sometimes technical, sometimes grammatical, sometimes just awkward wording.

The Benefits

A properly peer reviewed report will present a more objective, accurate, balanced and reasonable set of findings. Peer review can also result in deeper, more well-reasoned and technically sound findings. I am not saying that a report that has not been peer reviewed won’t have those qualities, but from experience, there is a much greater chance that a report that has not been peer reviewed will be less reasonable, more biased and less credible. It may also miss some important points relevant to the investigation. I give the following examples where proper peer review would have helped: one case I was on involved a small child who was seriously injured on a stairway in a commercial building and another involved a person injured on a stairway at a cottage.

In the case involving the small child, the child fell through a gap between the stair and the wall. The gap was present because the stairway was not as wide as the stair opening, part of the “look” for that building. As a result, there was a 7 in. gap on the side where a wall was present. It previously was an industrial building, hence it complied with the local building code which stated that such buildings could have up to an 8 in. gap present in guards required at the side of the stair. However, it was renovated and a change of use occurred, which brought small children into the building on a regular and daily basis. Unfortunately, a small child fell through that gap between the stair and the wall.

The other expert was retained by counsel for the local building department who were sued by the family of the child. There were a variety of reasons utilized by that expert to defend the presence of the gap, including the fact that the code stated that a wall at the side of a stair was an acceptable guard. A wall at the side of a stair would clearly be a useful guard to prevent someone from falling over the side of the stairs, assuming the wall was close enough to the stair to prevent a large enough gap from forming. However, the other expert said “There was a wall present, therefore it complied with the code”. Anyone who deals with this aspect of the code would have rejected that opinion in a peer review, because it was a nonsensical position to take (what if the wall was 24 in. away??). Even a lay person with no knowledge of the code would think that was a pretty unreasonable defence. What was the result? That opinion, amongst others tendered by that expert, resulted in a protracted legal battle. Eventually the other expert’s client ended up contributing significantly to the settlement. Had they utilized an expert that presented a less biased opinion, I suspect they probably would have saved lots on legal and expert fees.

In the other case, which involved a slip and fall on a set of faulty exterior stairs that accessed a cottage, the other expert did not even comment on the very visible stair deficiencies. Instead, he chose to say that “Although the alleged fall incident is extremely unfortunate, and fall incidents can be hazardous with long term health ramifications. (sic) The subject site is what it is, and hazards do exist which are normal and inherent in this part of the country. The stairs have only been provided to assist the user in accessing the property”. Needless to say, I doubt that was ever peer reviewed by another expert with similar experience. That report did little to assist his client reduce their liability (which is likely why the other expert wrote those words).

I chose those two examples because they provide some pretty evident biases in the reporting. In many cases though, the bias or errors due to an incorrect application of scientific theory are not so obvious and often do not show up until the report is challenged during the lead up to trial, or at trial. Unfortunately, by that time the party that retained that expert will have spent tens of thousands, if not more, in legal and expert fees. Better to spend the extra time on peer review up front!