A quick phone call to the NCDC at 828-271-4800 led me to an annoying voicemail message that gave me a chuckle (in disgust). This is when I realized we had a big problem. While we have large amounts of data and records archived in our office, special data like Doppler radar images zoomed in over a specific area, satellite imagery and surface observation data from some less-often used stations could not and still cannot be downloaded.
Without the government data, some of our cases are currently on hold since we do not have all of the data to analyze. As a small business in the U.S., this federal shutdown is now preventing my company from doing business and generating revenue.
When forensic meteorologists provide official weather records and affidavits to our legal clients, they are often used to file motions and other documents with courts. In some cases, attorneys discover that their client may not have had any liability when an accident occurred, such as if someone fell on ice while an ice storm was in progress. In some of these cases, the attorney often files a Motion with the court to dismiss a case. In New York State courts, the rules of evidence are such that weather records must be “certified” in order to be admissible as evidence to the court. Because of the federal shutdown, there is nobody at the NCDC to answer the phone, process the orders or certify weather records. If there really is merit for a judge to dismiss a case, will the judge still dismiss the case if no certified weather records were submitted or will the judge accept the non-certified copies? Many courts have denied these kinds of motions in the past when some professionals failed to obtain certified weather records, instead relying on the same records in non-certified format.
This week, I prepared two affidavits for different clients in New York who wanted to submit a motion for summary judgement to dismiss cases they had. In my affidavit, I prepared all of my information as I usually do, but had to explain to the court that there was no way “certified copies” of the weather records and data I relied on in my investigation could be obtained because the NCDC, part of NOAA and the Federal government, was shut down.
It will be interesting to see if the courts make an exception to these rules requiring that evidence be in admissible format (certified), or if they decide otherwise. If the courts deny the motion because certified data was not submitted, then the party submitting the motion to dismiss the case would then have to spend money preparing to try the case in court or negotiate a settlement, as opposed to possibly having it “thrown out” of court and dismissed completely. On the other hand, if the courts accept the non-certified records and dismiss the case, then some attorneys say that the cases could be appealed by a higher court.
The weather records from this week’s severe weather outbreak, including an EF1 tornado in New Jersey, also remain in question. Significant damage to some communities occurred across the Northeast as a strong cold front and squall line moved through. In addition, tremendous snows accumulated in other parts of the country. While the federal government has been successful, so far, in disseminating severe weather bulletins, warnings and forecasts, it is not yet known if these weather records and data are even being archived on the mega-computer systems at the NCDC. If the recorded phone messages and Web site shutdown notices are any indicator, it would suggest that they are not. What happens to the insurance companies who are trying to resolve their claims and the attorneys who may need this data to resolve court cases is now unknown. And of course, if the NCDC is not archiving this data at their Asheville, North Carolina facility, then no archived data at all will be available to the general public.
The problems that are occurring as a result of this federal shutdown may be felt for years to come. Either way, the federal government has created big problems that may cost the legal and insurance company a lot of unnecessary expenses, not to mention the lost revenue of my small company.
* Howard Altschule is a Forensic Meteorologist and the owner of Forensic Weather Consultants in New York. He has worked on over 2,000 cases and has testified more than 75 times in court and depositions. You can follow him on Facebook.