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EXPERT WITNESS eNEWS
PROPERTY & CASUALTY | CONSTRUCTION | REAL ESTATE
Nationwide | Expert Witness | Forensic Engineering | Construction Consulting
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Expert's Outlook on Construction for 2015:
Where have all of the construction defects litigation cases gone?
Construction litigators often ask me this question lately. The answer largely lies in what part of the country you are in. With all of the recent construction activity in major markets (and by recent I mean within the past three years or so), construction claims cases are certain to increase over time. Areas like Texas, Louisiana, Northern California, and Boston, to name a few, have experienced their share of significant economic growth. This growth is expected to continue into 2015 at a moderate pace. So, with the given increase in construction activity, construction defects claims are sure to follow.
Here's a brief economic outlook for construction:
Non-Residential Construction:
For 2015, Associated Builders and Contractors (ABC) forecasts the well-paced recovery experienced in 2014 should continue into 2015 for the U.S. commercial and industrial construction industries. Resurgence in energy and industrial production is anticipated to be a momentum leader. ABC Chief Economist, Anirban Basu, said in December "ABC forecasts nonresidential construction spending will expand by roughly 7.5 percent next year." In 2014, private nonresidential spending exceeded public nonresidential spending by 28 percent, and this trend is expected to continue somewhat in 2015.
Residential Construction:
According to data from the Census Bureau and HUD, total housing starts for 2014 broke the 1 million mark for the first time since 2007, pushing total housing construction to 1,005,800 for the year. The peak was 2,068,000 in 2005 (seems like so long ago now, doesn't it?). The bottom was 554,000 in 2009. Total multifamily construction held almost even at a 361,000 annual rate. For the year, multifamily starts were up 16% to 358,000, the highest since 2007. The outlook for 2015 looks even better with a strengthening labor market, low interest rates (about 3.75% for a 30-year mortgage), improving mortgage availability and growing pent-up demand.
-Joel E. Breuer, PE
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Recent Noteworthy Litigation Activity:
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 Products Liability - Window
Manufacturer - National Class Action Case Settlement
The experts worked hard on both sides of this case, and in the end a settlement was worked out. Most cases do end up settling. Make sure that your expert gives you a strong hand at the negotiating table.
Massachusetts Lawyers Weekly, January 2, 2015 - Settlement has been proposed, the agreement is fair, reasonable and adequate in a national class action against defendant MW Manufacturer's, Inc. (MW). MW's window lines that included Freedom, V-Wood, Freedom 600, and Freedom 800, windows constructed of wood coated with PVC (vinyl), were alleged to have suffered from a common design defect, a gap at the jamb-sill location allowing water infiltration leading to water damage and rot. MW disputes all allegations and expert witnesses on either side produced conflicting expert testimony about window design and performance.
Gulbankian, et al. v. MW Manufacturers, Inc. (Lawyers Weekly No. 02-631-14) (14 pages) (Zobel, J.) (USDC) (Civil Action No. 10-10392-RWZ) (Dec. 29, 2014).
To see the full article, click here.
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HG Cornerstone provides expert witness and forensic engineering services nationwide.
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 Evidence - Expert - Fire - Motion to Exclude Expert Witness Testimony Denied
This case demonstrates that litigators should work very closely with their experts from the beginning and need to be thorough and always prepared. If the plaintiffs hadn't been completely prepared they might not have withstood the defendant's challenge. Part of the expert's job is to be a technical advisor to make certain that nothing critical is missed.
Massachusetts Lawyers Weekly, December 17, 2014 - This case involves a subrogation action brought by an insurance company against a defendant house painter. The defendant requested an order excluding expert witness testimony regarding the origin and cause of the fire on the grounds that it was "inadmissible because it is based on factual assumptions that have no support in the evidentiary record." The defendant did not challenge the expert witness's qualifications, the relevancy of his expert testimony, nor his methodologies for investigating the source of the fire. However, the court did find that the record contained ample factual support for the expert's testimony regarding the cause of the ignition of the fire, including forensic evidence such as staining material, laboratory analysis results, and supporting conclusions reached by the local fire and State Police officials.
Pacific Indemnity Company v. Dalla Pola (Lawyers Weekly No. 02-612-14) (18 pages) (Dein, U.S.M.J.) (Civil Action No. 12-11638-JGD) (Dec. 15, 2014).
To see the full article, click here.
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 Evidence - Concrete - Cross-Complaint
for Equitable Indemnity and Contribution against the Civil Engineer
It turns out that the civil engineer in this case was not at fault. The concrete plant did not follow their typical batch mix protocols due to an equipment malfunction at the plant. This case demonstrates the importance of solid research into what really happened leading up to the occurrence.
FindLaw, January 8, 2015 - In Ventura County, California when a concrete batch did not meet strength specifications, the concrete supplier sought to blame the civil engineer who approved the mix design. Seven truck loads of 5,000-psi concrete used in the construction of a travel lift pier at the Channel Islands Harbor failed compressive strength testing and had to be removed and replaced at the contractor's expense. As it turns out the air entrainment additive (a chemical used to increase the concrete's workability) was not added mechanically to the concrete mix, as was the normal practice, but was added by hand (due to mechanical issues that day) and the calculations on how much to add were inaccurate. This was all conveyed via a "smoking gun" email written by the concrete supplier attached to the original complaint against them, which the concrete supplier tried to show was hearsay and lacked foundation (no pun intended). Although the civil engineer had approved the mix design, the court held that the concrete supplier had failed to follow its own mix design. STATE READY MIX, INC., Cross-Complainant and Appellant, v. MOFFATT & NICHOL, Cross-Defendant and Respondent (2015), Cal.App.4th. (Superior Court of Ventura County, No. 56-2012-00423313-CU-BC-VTA, Vincent J. O'Neal, Judge.)(Opinion by Yegan, J., with Gilbert, P.J., and Perren, J., concurring.) [No. B253421. Second Dist., Div. Six. Jan. 8, 2015.]
To see the full article, click here.
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 Environmental Litigation - Largest Environmental Contamination Case Ever - Settlement Takes Effect
Having work on Superfund cleanups in the past, I thought that this case was particularly interesting.
Federal EPA, January 26, 2015
- The Federal Environmental Protection Agency just settled its largest environmental contamination case ever, and for nearly $4.4 billion! The settlement with Anadarko Petroleum Corporation that took effect this January will provide funds to clean up contaminated properties from New Jersey to California. A subsidiary of Anadarko Petroleum Corporation called Kerr-McGee conducted uranium mining and other activities at sites across the nation many years ago. The funds will be used to pay cleanup expenses and return the contaminated sites back to useable land.
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Expert's Corner:
Attributes that all Excellent Experts Share
Five Crucial Tips in Selecting and Utilizing an Expert Witness
Are you maximizing the use of your experts? Do you get consistent results, or does your experience with experts vary from case to case?
As a litigator, you can achieve more consistent results from your experts by applying these five tips:
Tip 1: Pick an expert that is an exceptional technical writer. Technical writing seems like a lost art these days. An engineer or scientist MUST be able to convey technical concepts and his or her opinions in the most understandable, straightforward but complete way possible. The report must address the technical issues in ample detail to back up his or her opinions yet withstand peer scrutiny. And, the judge and jury must be able to understand and be convinced.
Tip 2: Make sure that your expert is totally immersed in the subject matter at hand. For example, in a construction defects case involving inadequate workmanship, hiring a professional engineer with a lot of design experience is good. But, hiring an engineer with a lot of design experience PLUS a lot of field oversight experience PLUS prior hands-on experience working in the construction trades is even better.
Tip 3: Practice makes perfect. It's never a good idea to go into a deposition cold. Work with your expert to prepare the day before. The ABA, Construction Section puts out some great materials on this topic. It is invariably worth the time and added expense to do so. In fact, you probably stand to loose a lot more than simply the added expense of preparation.
Tip 4: Make sure your expert is prepared for challenges when giving court testimony. A good expert understands the rules of evidence, knows about Daubert challenges, and is always prepared to defend a challenge to his testimony, report, or test methods and test results. The prepared expert is able to demonstrate how his or her peers should accept his or her scientific methods. In some courtroom situations, experts have been asked by the court upon challenge to produce, right then and there, the document, technical paper, textbook, or other source upon which the expert's opinion was based. A well-prepared expert will be ready for this.
Tip 5: Appearance is everything. A good expert has a neat, clean appearance and possesses superb verbal, social and communication skills. It is critical that an expert looks and sounds confident in order to command credibility and respect. Good experts practice their presentation skills and come to court prepared to opine in a confident yet pleasing manner.
Mr. Breuer is Managing Partner at HG Cornerstone.
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Spotlight:
Electronic Cigarette Fires and Explosions
The U.S Fire Administration, an entity of FEMA, has released a study about explosions and fires associated with electronic cigarettes, or "e-cigarettes" as they have become known. The report cites 25 separate incidents that have occurred in the U.S. since 2009.
It appears that the use of USB port charges not approved by the manufacturers may subject the e-cigarette's battery to higher current than is safe, leading to "thermal runaway" which can lead to an explosion and/or fire.
Here are some of their the findings:
* 20 incidents occurred during e-cigarette charging * 2 occurred during usage * 2 incidents may have been either during use, idleness, or charging * 1 occurred during transport on a cargo aircraft * 10 injuries and no deaths were reported in the U.S. * Several burn injuries were reported in the U. S. including 2 serious injuries while in the user's mouth * One related death was reported in the United Kingdom when an e-cigarette explosion ignited nearby oxygen equipment
Of particular concern is the propensity for the battery itself or other components of the device to become ejected and airborne during an explosion.
It is estimated that there are presently over 2.5 million e-cigarette users in the U.S. Improved labeling and user education was recommended. The possibility of manufacturers modifying the charging apparatus was also discussed.
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HG Cornerstone provides expert witness and forensic engineering services nationwide.
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HG Cornerstone, LLC
FORENSIC ENGINEERING | EXPERT WITNESS | CONSTRUCTION CONSULTING |
REAL ESTATE ADVISORY
HG Cornerstone works nationwide specializing in forensic engineering and expert witness consulting on building construction defects cases, property casualty claims, and real property matters.
Our work includes:
- Construction Defects
- Property Damage
- Premises Liability
- Mechanical Defects
- Structural Issues
- Building Materials FAILURES
- Construction Products Liability
- Building Codes Violations
- CONTRACTOR LIABILITY
- Accidents and OSHA Violations
- Design Issues
- Delay Damages Claims
- Geotechnical Issues
- Environmental Impacts Matters
Our cost-effective yet powerful forensic engineering approaches and techniques deliver timely analyses, fact-based determinations of cause, and nature and extent of loss evaluations. We also deliver sound technical defense from liability.
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 CONTACT US TODAY:
HG CORNERSTONE, LLC
3 Center Plaza, Suite 210
Boston, MA 02108
Phone/Fax: (617) 575-2300
www.hgcornerstone.com
[email protected]
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