Forensic science can provide a winning advantage

July 1, 2007 By    

In many cases that I am called on to defend propane companies, plaintiffs use pure theory against my clients in an effort to attach a liability position.

 John McCoy
John McCoy

There is often no actual testing of the exemplar regulator or appliance to prove that theory. The explanation is often that the line, regulator or appliance is destroyed, no longer available or the conditions can’t be recreated, but the conclusion is supported by reference to anecdotal information found in literature from various sources. Many are from our industry and the manufacturers of the products in question.

Sometimes the destruction of evidence can be a legal basis to avoid liability or to obtain sanctions or an adverse inference against the party that has destroyed the evidence. Lawyers often refer to this legal concept as spoliation of evidence. Many times the advantages of this avoidance approach are not available.

Each state has its own law in the area, and the approaches are all over the board. One limitation with this approach is that often the destruction of evidence is through no fault of any party. The fire or explosion may have caused it. The fire department may have caused it. Many states don’t allow a cause of action affirmatively for destruction but only as a way to defend in a case.

There may be other ways to get around evidence destruction that trial courts will always consider. For example, parties can recreate tests to prove or disprove a theory of liability.

I was involved in a case of a house fire where a theory of liability against my client, a propane company, involved these core issues and concerns.

The cause was claimed to be from a second stage regulator that had buildup of ice and mud daubers on its vent and contaminants in the seat disk. This permitted gas to flow to the boiler control in the home at the outlet pressure of the first stage regulator, they claimed.

This overpressure condition was claimed to cause leakage at the control or perhaps inside the boiler downstream of the boiler control. This fugitive gas then found an ignition source that created the explosion that destroyed the home and caused the loss of human life.

The conditions on the day of the accident could not be recreated, according to plaintiffs, as the boiler and its control were destroyed beyond where reliable testing could be conducted. It was critical to the defense of our client to demonstrate that this theory was not supportable. We hired a forensic engineer to test this theory to see if it could actually happen.

Our test actually sealed the vent screen on the second stage regulator and subjected it to full inlet pressures typically found in a first stage regulator.

Our tests demonstrated that the outlet pressures would not increase by more than a few inches above the normal operating pressures found with second stage regulator outlet pressures under these conditions. This testing was done on an exemplar regulator of the same make and model found at the accident site.

We next opened the actual second stage regulator with the plaintiff’s expert and found no contaminants in its seat disk orifice.

Finally, we purchased two exemplar control valves of the same make and model found at the accident scene. We then tested these controls and demonstrated that they were able to properly regulate the flow of gas even when subjected to full pressure from the outlet of a first stage regulator. So even if the second stage regulator did not work, the control at the boiler would not have overpressured.

Once we had this scientific proof that the plaintiff’s theory could be disproved, we developed an explanation of how the accident could have occurred. The only explanations that remained for the accident involved causes that our propane company did not have involvement with.

This work made a significant difference in the outcome of the case.

It once again demonstrates that scientific testing can go a long way to defending a case when the global issues and risks are understood and addressed in a methodical and scientific process.

John V. McCoy is the president of McCoy & Hofbauer, S.C. and specializes in the representation of propane companies. He can be reached at 800-599-8300 or

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