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Friday, March 31, 2017

Fake News and Alternative Facts

There has been a lot of angst and controversy in the news lately over “fake news” stories and “alternative facts”. This has brought to my mind their relationship to legal cases and in working as an expert witness.

It is generally accepted that “fake news” is any story that deliberately contains information which is either not true or is accurate, but placed in such a setting that any person reading the article will be left with the wrong conclusion. There are many reasons that “fake news” exists, but they generally boil down to unscrupulous individuals trying to substantiate an opinion which has no credible facts. 

The fact that innocent, uninformed individuals repeat such nonsense, does not remove the fakeness from the information nor does it make it credible.

While misinformation is now referred to as “fake news”, not too long ago, in the 1990’s, politicians caught promoting misinformation, said that “I misspoke”. In my youth, we spelled “misspoke”, l-y-i-n-g. Regardless of how you spell it, you have still intentionally given false testimony.

“Alternative facts” are a different animal. It became a running joke when some people in President Trump’s administration refuted opposition claims with “alternative facts”. There was much derision and ridicule heaped upon the speakers implying that “alternative facts” were just another way to spin the facts. I am not sure of the actual intent, nor do I intent to try and unravel the facts, but I do want to clarify the important difference between “fake news” and “alternative facts”.

While “fake news” is a lie, and not acceptable in any legal arenas, “alternative facts” are not, in and of themselves, wrong. For clarification, I will define “primary facts” as those originally promoted by one side of the argument, and “alternative facts” as those secondary or tertiary facts that are submitted by the opposing side as a rebuttal.

Consider an example: A hypothetical Defendant is on trial for shooting and killing another person. You can have 10 people videotape the shooting, which would lay down the “primary facts” that the Defendant did actually shoot the Plaintiff, who then died. Based on those facts, the Defendant is guilty of murder. Case closed, right? Not necessarily.

The “alternative facts”, as explained by the Defense, show that the Victim was a 40 year old male, 6’ 4", 245 lbs., approaching the Defendant with a baseball bat, cursing, and declaring that he would bash in the head of the 22 year old female Defendant, who was 5’ 1" and weighed 105 lbs. Unless other “alternative facts” appeared, the Defendant's “alternative facts” would most likely be accepted as the complete truth and exonerate her from harm. (Providing, of course, that she was legally carrying a gun, and State laws allowed for lethal force when a person’s life or safety was in danger, but those would be additional “alternative facts”.)

We have all seen examples of this in our own professions, times when the original or “primary facts” were later superseded by “alternative facts” that overturned all initial opinions.

Several years ago, I was asked to opine on a local case. The Plaintiff’s house was located approximately 100 feet from and about 30 feet below an irrigation canal. On August 30 of that year, water began to percolate up through the concrete floor and the subterranean heat registers into the basement. This continued until September 30, which was actually 2 days after the Irrigation company had emptied the canal for the year. The owners of the home concluded from the “primary facts” that water must be seeping out of the sides or bottom of the canal, running under the ground, and emerging in their basement. There were also high levels of moisture in the air as well as mold growth in the basement, so the owners felt that there was still water in the basement from the original intrusion. They had other testimony and experts who supported these facts which motivated the lawsuit. Therefore they felt justified in suing the Irrigation company for over $1,000,000 in damages.

I was retained 2 years after the initial damage occurred by the Defendant. The owners had moved out of the home and had done no mitigation or repairs, other than installing sump pumps in the floor to lower the water level while the flooding was active. On my initial inspection, I did observe the mold growth that was detailed in the complaint. I was able to detect measurable moisture in the air and drywall and properly mapped it out. I was able to snake a camera down the heat register ducts to determine that there was no longer any moisture in them.

After I examined all the data from my inspection, plus other psychometric data provided by the Plaintiff, I was able to identify “alternative facts” that showed:
  1. The moisture from the initial loss was completely gone from the house.
  2. The moisture that was presently in the basement was from sprinklers that were spraying on the exterior walls and windows.
  3. All of the mold, except for a small 18” square on the floor, was from this water from the sprinkler.
  4. Therefore, any damage to the house was caused from the sprinklers and not from the irrigation canal. 

Because of my report, another geotechnical engineer was engaged by the Defendant to drill test holes and map out the underground strata of the property. His “alternative facts” showed that the layers of gravel under the canal that would have moved water, dropped from the canal nearly straight down and leveled out over 12 feet below the level of the footings under the Plaintiff’s home. This made it virtually impossible for any water leaking from the canal to have percolated into the Plaintiff’s basement.

Now, with these “alternative facts”, it was concluded in court, that the water that entered the Plaintiff’s home was actually ground water that was normally present in the area. Oh, did I forget to mention the “alternative fact” that the home was situated in a rural, farming community and was surrounded by fields, watered with flood irrigation once a week? It was quite easy to conclude from all these “alternative facts”, that the height of the ground water fluctuates up and down depending on the amount of surface irrigation done by the surrounding farmers. Once the canal was emptied for the season, all the farmers stopped irrigating, causing the water table to drop below the level of the Plaintiff’s basement floor and stopping the water intrusion.

The Defense also had testimony that nearly all of the neighbors with basements suffered the same intrusion every few years, though not a serious, making the Plaintiffs experience typical of everyone else and not instigated by negligence on behalf of the Irrigation company.

So, while we can dismiss “fake news” that has no evidence, we must be careful in throwing out “alternative facts”; for often the complete story does not come out in the first quarter of the game. It is important to play hard all the way to the end to ensure that “all the facts” surface and truth prevails.

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