Seismic Experts Caught Between Privacy, Safety

The whole point of the conference was to share information about the Loma Prieta earthquake. But when someone asked for details about the widely suspected structural damage within the host hotel, the subject was taboo.

“I had to say I couldn’t talk about it,” said Sigmund Freeman, a consulting engineer who became intimately familiar with the failures and repairs at the Hyatt Regency in Burlingame--and who was barred from discussing them under terms of a legal settlement.

“Here we were in that very building and nobody knew what had really happened there.”

It was a frustrating quandary for Freeman and one often faced by engineers who know more about a building’s problems than the owners or their lawyers want them to say.

A classic conflict between privacy and the public’s right to know, the problem surfaces every day in routine construction disputes and real estate deals. Consulting engineers are often required to keep their findings confidential to avoid exposing their clients to lawsuits, bad publicity, loss of rental income or pressure to make expensive repairs.

But the perennial issue assumes new urgency after a major earthquake, when suppressed information can stymie the scientific inquiries that lead to improved seismic safety codes.

“The earthquake-damaged building is really the best lab we have,” said Tom Tobin, executive director of the California Seismic Safety Commission. “If the information is not brought forth, the rest of the community can’t learn from it and public policy can’t be advanced.”

Since the Jan. 17 Northridge earthquake, researchers have raced to document its effects before damaged buildings are demolished or repaired.

Despite the time pressure, gaining access to privately owned shopping centers, offices and industrial plants has often been a matter of diplomacy dependent on the hospitality of landlords. In exchange for entry, some researchers said, they have had to promise never to reveal the building’s owner or location.

So far, they added, landlords have usually cooperated but are becoming increasingly skittish as time passes and they consult lawyers.

“It is difficult to get the information,” said Helmut Krawinkler, a Stanford University engineering professor who is co-authoring a report on the Northridge temblor for the Oakland-based Earthquake Engineering Research Institute.

“It doesn’t work to tell people you’re working for the public interest,” Krawinkler said. “You have to know somebody.”

The pattern of damage within modern steel-frame buildings was one of the most significant discoveries of the Northridge quake because experts have always considered steel relatively invulnerable to quakes.

But engineers say the findings took weeks to emerge, partly because building owners were afraid of alarming their tenants and because the cracked girders could not be readily detected. More than 20 buildings with the problem have been identified so far.

Pinpointing the buildings also has been difficult because of the secrecy surrounding the problem. A Westside building was reported to have steel supporting columns cracked all the way through, and photos of the damage were widely circulated among private engineers and researchers. But the identity of the 10-story structure has remained secret.

Recognizing the need for some organized way to obtain such information, Tobin of the Seismic Safety Commission has considered proposing legislation that would require engineering studies on buildings to be filed at City Hall, where they would become a matter of public record.

But the idea is rife with legal concerns for the property rights and privacy of owners, Tobin said. And on a practical level, he added, the specter of publicity might prevent landlords from undertaking any seismic safety surveys at all.

The debate over disclosure of “bad seismic news,” as Tobin calls it, was the subject of a 1992 commission report that said, “The public has a fundamental right to be warned of known seismic hazards.”

But the report also concluded that it would be unfair to force landlords to reveal their buildings’ flaws--possibly generating unrest among employees, business tenants and residents--without first resolving which buildings ought to be seismically upgraded.

“We have not been able to figure out a good solution that respects everybody’s rights,” Tobin said in an interview.

Disclosure is such a nettlesome issue that it took the Structural Engineers’ Assn. of California five years to come up with a tepid guideline: “The engineer’s duty to disclose is an unsettled area of law.”

The guideline also cites a 1985 opinion by the state attorney general stating that an engineer has a professional duty to warn of “imminent risk of serious injury.”

But Peter Curry, the San Diego engineer who heads the group’s Professional Practices Committee, said assessing building safety is an inexact science, and opinions of engineers can vary greatly.

“Everybody is so afraid of their liability. . . . You have to be very sure you have imminent risk,” Curry said. “There were many buildings that failed in Northridge that I wouldn’t have guessed about beforehand.”

But even when the danger appears obvious, it can be difficult to ensure that repairs are made.

Engineer David Murphy said he had been so frustrated by the slow pace of repairs at an old masonry building in San Francisco that he finally reported the problem to city officials. He said he and other engineers had repeatedly warned the owners of potentially lethal seismic hazards.

For him, Murphy said, there was no conflict: “Even if you’re working for an attorney or client trying to get you to uphold a certain level of confidentiality, none of that holds water when it comes to public safety.”

Murphy’s recommended repairs on the building had not been completed when the Loma Prieta quake struck in October, 1989, crushing five people to death beneath 10 feet of brick.

Sued for fraud and wrongful death, the landlords paid $10 million in out-of-court settlements to the families of the victims, an injured survivor, and business tenants of the building, according to Joseph M. Breall, an attorney for some of the plaintiffs.

It was the fear of just such a tragedy that prompted one Los Angeles engineer, Arnold Bookbinder of Van Nuys, to embark on a 10-year crusade to clarify his profession’s responsibilities--with no satisfying resolution to date.

Bookbinder wanted to blow the whistle on a four-story condominium complex he had inspected and considered seismically unsafe. But he said he was warned by the architect’s lawyer that it could expose him to litigation.

Because he had been hired by the attorney as a possible expert witness--the architect was defending a dispute over a leaky roof--Bookbinder was told his report was part of the lawyer’s “work product” and had to remain confidential. The lawyer fired him before he could be deposed by opposing counsel and warned him to keep his mouth shut, said Bookbinder, declining to identify the building, the lawyer and others involved.

With two children in college and a fledgling solo practice, Bookbinder felt he could not afford a lawsuit. But he was tortured by his belief that the building’s supporting columns contained one-third the amount of reinforcing steel they needed to withstand a major quake.

Bookbinder turned to Sacramento for guidance and soon found himself in a legal morass. He elicited the 1985 “duty to warn” opinion from then-Atty. Gen. John Van de Kamp, but quickly discovered it did not address a crucial situation: when an engineer is working for an attorney. So he obtained a second opinion, this time from the state Legislature’s legal staff, which held attorney-client privilege sacrosanct.

Disappointed but undaunted, Bookbinder contacted the California Bar Assn. Eventually, the State Bar proposed changing the lawyers’ confidentiality rule to exempt situations presenting a risk of bodily harm. The proposed amendment was submitted to the state Supreme Court for approval and was rejected without comment.

Bookbinder sent an impassioned letter to the court, urging it to reconsider. “Why must citizens of the state of California lose their lives, or receive bodily harm when this type of catastrophe can be avoided?” he wrote.

In a response dated Jan. 10--one week before the Northridge quake--the court again declined to take up the matter.

Other engineers said Bookbinder’s quandary is an extreme example of a common problem pitting their profession’s ideals against the realities of the workaday world.

When engineers work as consultants on legal cases, it is standard practice for attorneys to discuss their findings with them first and reach a consensus before anything is written down, said John G. Shipp, president of the Structural Engineers’ Assn. of Southern California.

“They’re very definitely controlling what gets in the record,” said Shipp, a vice president at EQE International in Irvine, who often works as an expert witness.

Shipp said he personally has omitted findings, usually in matters that had no effect on public safety. But he recalled one troubling case in which he was asked to review a three-story office building damaged in the 1987 Whittier quake.

The owner was suing contractors for quake damage. Shipp said the owner’s lawyer told him to omit some recommended repairs from his report because the defendants could not be held liable for that specific damage.

Shipp said he left the information out, but was successful in privately urging the owner to make the additional repairs. He declined to identify the building.

One lawyer who specializes in construction disputes, Joel Castro of Santa Monica, expressed surprise at allegations that attorneys sometimes try to shape the reports of consulting engineers.

“I can’t imagine a competent, ethical attorney instructing his consultant to just drop the ball on a dangerous building condition,” Castro said.

But Breall, the San Francisco attorney, said attorneys often try to limit the information that goes into the court record so it will not be exploited by an adversary.

Similar concerns arise outside the courtroom, when seismic surveys are required by a lender or insurance company, or when an owner wants to plan for future improvements. Once confronted with an engineer’s findings, many owners are loath to undertake--or simply cannot afford--the recommended repairs, and they certainly do not want the results disseminated, said structural engineer Elwood Smietana, an EQE vice president.

“We alone have probably looked at several hundred buildings in California in the last decade where we’ve observed the building could be a collapse hazard and it was never fixed,” Smietana said.

The reluctance to disclose building defects obstructs even federal investigators and has surfaced during several celebrated cases unrelated to earthquakes, said Peter Wright, director of the Building and Fire Research Laboratory at the National Institute of Standards and Technology in Maryland.

When dozens of panes of glass began sailing down from the windows of the 60-story John Hancock Tower in Boston in the 1970s, the resulting private analyses were sealed under the terms of an out-of-court legal agreement, frustrating an NIST inquiry, Wright said.

“In so many of these cases,” Wright said, “the records are locked up in settlements and will not be available to anybody--which is a great pity, because it impedes the ability of everyone else to learn what went wrong and avoid repeating it.”