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The Role of Experts in Evaluating Building Performance Issues

When a building fails to perform as it should, we immediately look for answers. Is the problem the result of someone's failure to assemble it properly? Is the problem an act of nature? Was the proper maintenance to the building not performed as it should have been? The answers often depend upon a number of factors: the age of the effected building component, the exact nature of the problem, the presence or absence of human error, or some combination of all three. New buildings shouldn't leak—everyone would agree on that. And if they do, we might immediately hold the builder responsible. But what if someone installed something on the roof after the building was sold? And what if that installation was responsible for the leaks? It would certainly be a defense to the leaking problem that the builder would be expected to assert.

What if there was a huge rainstorm after months of dry weather such that an accumulation of debris caused the storm drains to overflow and flood the parking lot? The association of owners might claim that the storm drain inlets were not large enough and hence the engineers who designed them should be made to pay to correct the problem. But the engineers could point out that the association failed to keep the channel free of debris.

And, suppose the wood siding on a building began to warp and split after only 6 or 7 years. The homeowners could be expected to claim that the product was inferior or it was poorly installed. But maybe the association failed to repaint soon enough. Perhaps the problem was apparent early in the product's life and if the buildings had been repainted in 4 years instead of the usual 5 or 6, the damage would not have occurred. That's certainly what you would expect to hear from the manufacturer of the siding, or the original painters in their own defense.

Yet did the builder warn anyone that antennas should not be installed on the roof; that the debris had to be cleared; or that the buildings should be painted more frequently than usual? You can easily see how construction defect disputes arise and how complicated the issues can become.

Because buildings are not single products but rather an assembly of individual parts and components often put together by different contractors; and because the materials used often require periodic maintenance to maintain their projected service lives; and because acts of nature often intervene to test the resistance of building components to leaks and decay, it is usually never exactly clear why a particular building defect occurs. And the average person who might sit in judgment one day, cannot easily understand much less unwind, the disputes that arise over these enigmatic, technical and often costly problems.

For these reasons, independent experts are a necessary and valued part of the resolution of construction defect claims. Experts are professionals whose credentials qualify them to analyze the cause of a particular type of construction or design problem, design a solution, and assign responsibility for it. The qualifications needed are determined by the nature of the problem and the component, but in the construction defect arena experts are predominantly architects and engineers. Architects are generalists, who by education and professional preparation are capable of designing almost any component of a building as well as the entire assembly of components.

Engineers, on the other hand, tend to be specialists in certain discrete parts of the assembly. There are materials engineers who specialize in the physical composition of components—the wood substances in siding products as an example. Acoustic engineers are trained in noise abatement. Geotechnical engineers study soils and the cause and cure of landslides and in foundation design. Mechanical engineers design and analyze plumbing and HVAC systems and structural engineers investigate the ability of the building framework to resist forces of nature such as earthquakes.

There can be overlap among these disciplines and between architects and engineers, so it is usually up to the attorney to discuss the problem with the proposed experts to be sure he has assembled the right team. Once employed, often by counsel for the parties in a construction defect action, the various experts will begin an investigation aimed at three things: (1) what caused the problem; (2) how do we fix it; and (3) how much will it cost to repair? The owners of the buildings will want to know because ultimately they will have to repair the problem and if they are bringing a construction claim, they have the burden of proving who is responsible for the problem and the damages to be assessed to those responsible parties.

Each of those parties accused of responsibility for the defect will want to know what other theories of causation are available to explain the defect, and whether some or all of the liability can be shifted to another party or even to the building owner; and, what alternate ways of repairing the problem might be available which will lower the cost of resolving the matter.

An example might be a case involving roof leaks. The condominium association's attorney files a claim against the builder who in turn names the roofer and the roof shingle manufacturer. The roofer then sues the sheet metal contractor who installed the weatherproof flashings on the roof and maybe the shingle supplier. Experts for each of these parties must investigate the roof and its components to attempt to identify the source of the leaks; the components responsible; the contractors who installed or assembled those components; and the most reasonable method of repairing the problem.

Experts are not just concerned with what they find in the field. They must also be qualified to testify to their findings in a court of law, first in any depositions that are taken in preparation for a trial, and if necessary, in the trial itself. Their opinions are also used at mediations or settlement conferences, sometimes in consultation with the experts for other parties to try to reach agreement on a mode of repair and cost estimate. To testify, an expert has to be qualified by the court, usually after some initial testimony as to the expert's professional education and background.

Without expert witnesses to explain technical issues complex defect cases could not be prosecuted. The construction expert acts as an interpreter of these issues for the litigants and, ultimately, for the court and jury. Experts provide the evidence necessary to support each party's individual theory of the case where construction methods and materials are beyond the average layman's experience and to assist a court or jury in fixing liability and damages. Finally, and increasingly today, good expert witnesses can also be called upon to assist in fashioning an early resolution of a case when that opportunity presents itself.

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