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Second Opinions Can Offer a Distinctly-Different Path Forward

Written by Alan Hahn, Dragun Corporation

A story in the Washington Post from a year
ago discussed why second medical opinions can be very important.  In one case, a young man, at his mother’s
behest, got a second opinion and received life-saving surgery for cancer that
he would not have otherwise received. 
The other case they highlighted was a woman who did not get a second
opinion and had a double mastectomy and hysterectomy.  Neither, it turns out, were necessary.

A Mayo Clinic Study found
that as many as 88% of those looking for a second opinion left with a new or “refined
diagnoses,” and 21% had a “distinctly different” diagnoses.  

Medical second opinions can literally save
your life.

While environmental consultants are not in
the business of saving lives directly, in our experience,
environmental/scientific second opinions have provided some very stark results.

The intent of second opinions, medical, or
as is the case in our world, environmental, is not (or should not be) to
unjustly criticize.  The intent is to
objectively review the data and offer suggestions for a “refined diagnoses” and
occasionally offer a “distinctly different” path forward.

At Dragun Corporation, we began 30-plus
years ago providing second opinions, or, as we call them, peer reviews.  Below are very
brief discussions of some of these second opinions.

Second
Opinion of Groundwater Investigation

A site assessment and remediation program
that was confounding a company had many complicating factors.  When we were asked to review the project, it
was headed down a path of more investigation and remediation.  What we found, and why the subsurface data
were not making sense, was an underground storage tank that was “missed” early
in the investigation. The problem was compounded as they moved to each
subsequent phase of work.  Once this was
discovered, the other data began to make sense.  Collection of additional supporting data presented
to the regulators was convincing and the site was closed.

Second
Opinion of Remediation

An old industrial site with a lot of
“environmental history” was getting more complicated (and confusing) with each
subsequent set of data.  The calculated
groundwater flow at the site did not make sense, but a multi-million dollar
remediation was proposed nonetheless.  The
major issue uncovered in the peer-review process was improperly-screened
wells.  It was a “simple” mistake (and a
reminder of why field work is so important), but the potential consequences
could have been very expensive.  In this
case, a distinctly-different diagnoses led to a far-different (and less costly)
solution.

Second
Opinion Leads to Supreme Court

Another older industrial site that used a
common, but often problematic, chemical, trichloroethylene (TCE), was so
contentious that it ended up in a US State Supreme Court.  When the problem was first identified in the
groundwater, the client recognized that they had used TCE and “stepped up” to
take responsibility.  While operating a
groundwater pump-and-treat system to capture and treat the TCE plume, they were
approached by the state regulators to investigate a newly-discovered
plume.  The state theorized that the
plume had “escaped” the treatment system.  In this particular case, the client’s
consultant was not willing to “push back” and defend the client’s position;
they believed the best course of action was to do as the state directed.

The review of the data suggested that there
was no scientific reason to believe the escaped plume theory.  The subsequent technical and legal battles
ended in the State Supreme Court.  The
unanimous decision of the Supreme Court supported our scientific interpretation,
and the state was ordered to pay the client’s technical and legal costs (nearly
$4 million).

When should you consider a second
“environmental” opinion?  I don’t know if
there are any hard and fast rules.  From
our perspective, the requests for second opinions have come when someone is
considering a new scope of work for additional investigation, considering
remediation, or when a project is potentially headed toward litigation.  In each case, there are potentially-significant
expenses in the next step.

Often, but not always, legal counsel is
involved in this decision including vetting the firm that may be offering the
second opinion.  

Recently, we developed a list of issues we
have encountered more than once in providing second opinions.  You can download this list of “29 Potentially Costly
Soil and Groundwater Investigation Mistakes”
on our website.  This list may provide you with some guidance
as you review your data.

The findings published by the Mayo Clinic regarding medical second opinions providing both refined diagnoses and distinctly different diagnoses are quite remarkable.  And if our experience is any indication of environmental second opinions, it may be worth your effort to seek out a second opinion before taking significant action.   


About the Author

Alan Hahn works at Dragun Corporation, an environmental services headquartered in Farmington Hills, Michigan. His practical experience in the environmental business and the practical experience in marketing, allows him to develop realistic strategic business plans. His undergraduate and graduate studies are both in the environmental field (University of Michigan – Dearborn and University of Maryland). He also has substantial hands-on experience in the environmental field (both in an analytical laboratory and in collection of samples).

Environmental Consultant’s Disclaimer of Liability to Vendor effective against Third Party Purchaser

by Stanley D. Berger, Fogler Rubinoff

On July 23, 2018 the Court of Appeal for Newfoundland and Labrador in the case of Community Mental Health Initiative Inc. v. Summit Lounge Ltd. 2018 NLCA 42 upheld summary judgment dismissing a purchaser’s claim against two engineering companies (consultants) alleging negligence in the conduct of a Phase 1 Environmental Site Assessment performed for the vendor. The agreement between the consultants and the vendor and the final report both indicated that the assessment was prepared solely for the benefit of the vendor and that the consultants accepted no responsibility for any damages suffered by any third party. Significantly, the plaintiff-purchaser had knowledge of the disclaimer, having been provided with a copy of the final report by its real estate agent prior to the closing of the transaction. The Court of Appeal referred to the Supreme Court of Canada’s decision in Edgeworth Construction ltd. v. N.D. Lea & Associates Ltd. [1993] 3.S.C.R. 206 as well as decisions from appeal courts in Ontario Wolverine Tube (Canada) Inc. (1995) , 26 O.R. (3d) 577 and B.C., Kokanee Mortgage M.I.C. Ltd. 2018 BCCA 151 and summarized the legal principles as follows: (at par. 23) “… an express disclaimer of liability can be an effective bar against a claim by a third party who relied on work in the knowledge of the disclaimer. Permitting third parties to rely on reports which are expressly protected by a disclaimer would undermine the ability of contracting commercial parties to govern their own affairs.”

IMPLICATIONS FOR REAL ESTATE TRANSACTIONS AND ENVIRONMENTAL CONSULTANTS?

The long established principle of privity of contract i.e. that the rights and obligations in a contract apply only to the parties to the contract have been further tested by this decision. For engineering consultants, the decision highlights the importance of exacting express disclaimer clauses restricting responsibility for the reporting information to the party retaining them. For purchasers of real estate, it reinforces the necessity of obtaining indemnities from the vendor for undiscovered contamination or if that is not realistic, retaining an independent environmental consultant to verify any consulting reports given to them by the vendor.

This article was first published on the Fogler Rubinoff LLP website.

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About the Author

Mr. Stanley Berger serves as the Partner at Fogler, Rubinoff LLP. Mr. Berger joined the law firm of Fogler Rubinoff on July 4, 2013. Before joining Fogler Rubinoff, he served for 14 years as Assistant General Counsel to Ontario Power Generation Inc (OPG). In that capacity he provided legal services on licensing, environmental assessment, regulatory compliance, liability, security, decommissioning and waste management to the Nuclear Division of OPG.  Mr. Berger provided strategic legal advice and representation on aboriginal litigation and participated in First Nation settlement negotiations. Prior to joining OPG, he served as the Deputy Director of the Law Division for Prosecutions for the Ontario Ministry of Environment. In that capacity he managed the prosecution staff and helped shape prosecution policy.