Expert Witness Blog

In THE PERFECT STORM: The Science Behind Subrogating Catastrophic Flood Losses, hydrology expert witness Richard Van Bruggen writes on the 100-Year Storm versus the 100-Year Flood:

Two sets of terminologies which are confused more than any other involve confusing the 100-year storm with the 100-year flood. These are two distinct and different events. Floods are classified according to their frequency and depth. For instance, there are 10-year, 25-year, 50-year, 100-year, and 500-year floods. A 100-year flood occurs less frequently than a 10-year flood, but because it has a larger volume and greater depth of water, it has far more destructive power, causes more damage, and is a more serious threat to human safety. We do not necessarily get a 100-year flood from a 100-year rainfall. This is where man comes into play. God may send a 10-year rainfall, but it is man that transforms it into the 100-year flood. Whether or not a 100-year rainfall causes a 100-year flood depends on the “time of concentration,” of the watershed, which itself, depends on watershed size, runoff characteristics, and other geological conditions.

In THE PERFECT STORM: The Science Behind Subrogating Catastrophic Flood Losses, hydrology expert witness Richard Van Bruggen writes:

The term “100-year flood” still seems to cause confusion among public lenders, professionals, and insurance companies. Many continue to believe it is a description of a flood that occurs only once every 100 years. In truth, the term “100-year flood” is an abbreviated way of describing the magnitude of a rainfall and subsequent flood event that has a one percent chance of occurring. It is important to note that the same statistical chances apply for any storm at any time and any given year. The “return period” (or recurrence interval) of an annual maximum flood event has a return period of X years if its magnitude is equaled or exceeded once, on the average, every X years. A reciprocal of X (1/X) is the exceedance probability of the event, meaning the probability that the event is equaled or exceeded in any one year. As an example, a 100-year return period (1/100) means that there is a 1% probability of an occurrence in any one year. A 10-year return period (1/10) means that there is a 10% probability of an occurrence in any one year. A 500-year return period (1/500) means that there is a 0.2% probability of such an occurrence in any one year. This is why many hydrologists have tried to change the terminology from “100-year flood” to a “1 percent flood”.

In THE PERFECT STORM: The Science Behind Subrogating Catastrophic Flood Losses, hydrology expert witness Richard Van Bruggen writes:

Natural disasters, especially major flood losses, remain the nemesis of most insurance carriers. The damages can be astronomical and the chances of subrogation appear slim when everyone has suffered similar damage. However, when it seems that only God is responsible for sending devastation of such magnitude, it is time for subrogation professionals to roll up their sleeves and get to work. It is also time to hire an expert in hydrology or hydraulics. With the help of a hydrology expert, Matthiesen, Wickert & Lehrer recovered more than $7 million for Lloyds of London in the Great U.S.A. Flood of 1993. Five years later, with the help of expert, Rick Van Bruggen, Matthiesen, Wickert & Lehrer recovered more than $2.5 million for Transportation Insurance Company after the Great California Flood. With perfect storms such as these, subrogation recovery almost always seems impossible. In reality, however, quite the contrary is true. Flood waters, just like pieces on a chess board, never lie. The subrogation professional’s distinct advantage is that while God may send the rain, what happens to the flood waters once they reach Earth is almost always affected by man.

The behavior of water is predictable. It is affected by gravity, seeks its own level, and follows the contour of the Earth’s surface – whether natural or man-made. As a result, with the use of a qualified hydrologist, subrogation counsel can accurately map, mimic, and image the exact behavior of the flood waters, before, during and after the flood event. This ability to prove what happened to the water means that we can accurately point to the effect that man-made objects, construction projects, barriers, and other obstacles had on the water, and show precisely how the specific flood damage being subrogated was affected or caused by these man-made conditions. It is, therefore, critical that the subrogation professional have a working knowledge of and understand the behavior of water and the science behind hydrology.

Dr. Martin Williams has twenty years experience as an expert witness on the standard of care in therapist-patient sex and other ethics matters involving psychologists, clinical social workers, marriage and family therapists, and psychiatrists. In Therapist-Patient Sex Twenty Years Later: A View From the Courtroom, the psychology expert witness writes:

A conservative, risk management backlash against unethical psychotherapists has developed. Because of the increased number of lawsuits against psychotherapists over the past twenty years, malpractice insurance companies have led the charge to bring continuing education on ethics and risk-management to all psychotherapists. Numerous such courses are offered, some resulting in a discount on the therapist’s malpractice policy and some required for state license renewal. This represents a substantial change from the approach to ethics in the earlier era. Many psychotherapists of the Baby Boom generation, who trained in the nineteen sixties and seventies, had never even been exposed to a course on ethics, let alone risk management, as part of their professional training. The insurance companies support today’s continuing education courses, or even sponsor them themselves, in the hope that those who complete such courses will engage fewer of the behaviors that resulted in lawsuits and insurance payouts.

Risk management training is somewhat different from ethics education. Ethics, briefly, is about doing what is right. Risk management is about avoiding doing that which is risky-meaning that which is likely to provoke a lawsuit. Risky behavior by a psychotherapist is not necessarily unethical. Indeed, under certain circumstances, risky behavior may be the most ethical course of action. (See the recent book by Ken Pope and Melba Vasquez, “Ethics in Psychotherapy and Counseling: A Practical Guide,” Jossey-Bass, 2007, for a more complete discussion of the interplay between ethics and risk management.)

Dr. Martin Williams has twenty years experience as an expert witness on the standard of care in therapist-patient sex and other ethics matters involving psychologists, clinical social workers, marriage and family therapists, and psychiatrists. In Therapist-Patient Sex Twenty Years Later: A View From the Courtroom, the psychology expert witness writes:

One of the most significant changes over the years has been the advent of malpractice attorneys becoming knowledgeable about non-sexual boundary violations. Indeed, a specialty of lawyers has emerged-lawyers who sue psychotherapists-and these attorneys tend to know more about the ethics codes and practice guidelines of the American Psychological Association and other relevant professional organizations than many, if not most, of the professionals belonging to these associations. These attorneys file suits over non-sexual boundary violations-non-sexual touching, excessive self-disclosure, sessions outside the office, and non-sexual multiple relationships. A lawsuit against a psychotherapist for a non-sexual boundary violation was unheard of twenty years ago.

One very significant causal factor in the rise of lawsuits over non-sexual boundary violations was the termination or limitation of professional liability coverage for sex claims. One of the reasons attorneys took on the earlier cases of therapist-patient sex was the profit motive. Therapist-patient sex cases would reap million dollar or even multi-million dollar awards for plaintiffs. Large attorney fees came to an end when the malpractice insurers, who typically wrote policies with million dollar or higher coverage limits, recognized that therapist-patient sex was not a reasonable risk of psychotherapy, was not part of psychotherapy, and, consequently, did not need to be covered as part of the malpractice policy. Most malpractice policies today have a coverage limit of $25,000 for damages resulting from therapist-patient sex.

Dr. Martin Williams has twenty years experience as an expert witness on the standard of care in therapist-patient sex and other ethics matters involving psychologists, clinical social workers, marriage and family therapists, and psychiatrists. In Therapist-Patient Sex Twenty Years Later: A View From the Courtroom, the psychology expert witness writes:

In the current era, the patient, like the therapist, is probably aware that sexual behavior in the context of psychotherapy is considered unacceptable. Patients are more sophisticated today. They have likely read newspaper or magazine articles about therapist-patient sex or heard discussions on television talk shows, and are aware of the low regard with which the psychotherapy professions greet this behavior. Because no scientific methods of survey research can possibly determine how many unreported cases of therapist-patient sex exist, the following is my own unsubstantiated speculation. Therapist-patient sex, when it occurs, is more likely to be reported today than in the earlier era because patients are more likely to know that it is a licensing violation. Nowadays, I suspect there are far fewer victims of this practice who, believing themselves to have been harmed by the sexual relationship, elect to go off and suffer in silence without filing a licensing complaint. For one thing, in California, any subsequent therapist who treats a victim and learns of a prior instance of therapist-patient sex is required by law to provide a pamphlet that describes courses of legal and professional action that are open to the victim.

In an unusual case about which I testified at a California Board of Psychology hearing, the female patient intended, for whatever psychological reason, to have a sexual relationship with her male psychologist. She was knowledgeable about the laws and actually went to an attorney and attempted to draw up papers that would make it impossible for her later to sue or file a licensing complaint. Her purpose in creating this document was to reassure her intended sex partner, her therapist, that he could proceed without fear of subsequent repercussions. She was unable to find an attorney who would draw up such papers and was apparently legally unable to waive those rights. Ultimately, the two did become sexually involved, and she did later file a licensing board complaint.