Lawyer Monthly Magazine - October 2019 Edition

As the construction industry evolves, the old standbys of wood, brick, concrete, and steel have been joined by a plethora of new products, each claiming to be better, cheaper, or faster. Green building initiatives and changes to energy codes have further complicated material selection and detailing, leaving designers and constructors struggling to keep up. Problems frequently arise when the wrong product is selected for the wrong application or when craftsmen are not properly trained in the nuances of successful installation, many of which are product specific. What can be done to prevent this from happening in the first place? In a word: education. Knowledge of building code requirements for delegated design and the responsibility each party must undertake are key to reducing problems associated with this mode of project delivery. Readily available detailed information on intended conditions of use and proper installation techniques is critical to promoting proper usage of construction materials. This information can be provided by manufacturers, trade schools, and professional training programs, to name a few, but is only effective if design team and construction team members are aware of the information and choose photographs are standard fare in my document requests. Recently I have found that significant additional information can be found in the digital domain from such sources as satellite imagery, security cameras, and social media. Nearly everyone has a camera with them today in the form of their mobile phone, creating a wealth of potentially useful images waiting to be discovered. In one of my cases, a state government agency put out a public call for still and video imagery of a performance venue prior to and during a wind-induced collapse. Media files uploaded to an event-specific website were then analyzed on a frame- by-frame basis, providing invaluable insight into the moment of collapse initiation. The culmination of all the fact finding, document review, and on-site investigation is, of course, the development of opinions supported by the preceding investigative work. I tell every client that I “call it straight.” My opinions are not preordained to turn out to be everything they desire, but they will know where they stand based on an honest opinion and can rely on that information when developing their legal strategy. When the facts are less than ideal, my role sometimes morphs into being a retained consultant, a valuable, to take advantage of it. Too often I find the root causes of malperformance, particularly in the building enclosure world, are related to ignorance of the basic premises of product use. How do you approach a case as an expert witness? I am an engineer by training and at heart, so of course, my first stop is to look for data and facts. Whether working for an owner simply wanting to solve a problem with their building or for an attorney needing expert assistance, hearing the perceived problems from the people who lived them can prove very beneficial. Learning what the symptoms are, where they occur, and under what circumstances they occur are critical pieces of basic information that should not be glossed over. When at all possible, firsthand examination of the “patient” should be undertaken to independently verify the reported symptoms. Close on the heels of defining symptomology is my preference to obtain and review as much of the available design and construction paperwork as is feasible. Depending on the issues of the case, structural and architectural drawings, project specifications, addenda, component shop drawings, RFIs and responses, change directives, inspection reports, contracts, subcontracts, and behind-the-scenes trusted advisor. When the facts are supportive, I find myself being the lead testifier. I am equally comfortable in either role. What are common cases you see? The most common construction cases I see involve water leakage and resulting damage to occupied spaces. The leaks might involve the roof, windows, various opaque cladding materials or, quite frequently, the interfaces between each of these. Hidden damage in the forms of metal corrosion and wood product decay can sometimes be startlingly severe despite modest outwardly visible symptoms. These claims, though they rarely garner news coverage, can run into multiple millions of dollars in repair costs and legal fees. The cases that receive the most publicity are those involving structural failures and collapses, often with tragic loss of life. The underlying causes of these sad events can frequently be traced back to a fundamental error in the design concept, defective erection sequence, profoundly understrength materials, or unchecked long- term deterioration. In some cases, design errors have gone unnoticed for long periods of time until the right set of circumstances result in sudden and catastrophic failure. LM Expert Witness By Kurt Hoigard, P.E., SECB, F.ASTM, Raths, Raths & Johnson, Inc. 65 OCT 2019 | WWW.LAWYER-MONTHLY.COM