Using Expert Witnesses: Construction Defect Cases

Construction defect claims are brought on behalf of residential homes, commercial buildings, and even industrial complexes. These construction defect lawsuits tend to be large cases with numerous parties and multimillion dollar claims. As an illustration of how complex these cases can become, the Kitec Plumbing class action cases involved two countries, several states, hundreds of homeowners, and numerous contractors over plumbing pipes that prematurely failed.

With so much at stake and with the various sophisticated methods of construction used in various construction industries, it's not surprising that experts would play a prominent role. The plaintiff(s) will have a team of experts that is matched by the defense attorneys and these experts are typically used to:

  • describe the defect;
  • determine its cause; and
  • propose a fix.

Depending on the specific construction defects involved, plaintiffs and the defense counsel may also need expert witnesses to delve into specific construction methods or materials. Therefore, selecting the experts is an important exercise that will need to be accomplished in the early stages of the litigation. Below is a helpful guide when it comes to hiring expert witnesses for your construction defect case.

Design/Architectural Experts

Architect experts will be able to testify regarding the design of buildings and outdoor areas. They may also be able to testify regarding safety, code compliance, inspections, choice of materials, and maintenance. These experts are especially necessary if you're intending to sue an architect, because many jurisdictions, including California, require a certificate or affidavit from another architect to be filed with the complaint or else it can be subject to dismissal.

Workmanship Experts

General Contractor (GC)

When it comes to hiring expert witnesses for your construction defect case, the general contractor expert will be the heart and soul of each side's team of experts. They will have expertise in the type of construction at issue: industrial, commercial, or residential. Expect them to be able to testify regarding all phases of the construction process from design to completion. A GC will also be able to testify as to the standard of care for subcontractors and expected work and performance of those subcontractors. Many GC's can also conduct destructive testing to determine the cause of a particular problem.

Trade Specific Contractor

For each subcontractor that is involved in the action there will need to be an expert for that specific trade. Generally, the trades involved will be identified by the harm at issue. For example, water intrusion usually involves roofing, windows, stucco or exterior surfaces, framers, water proofing, shower installation, or sheet metal work. If you're having a problem identifying the appropriate trade expert in a case, it can be helpful to look at the scope of work for each trade that worked on the project.

Typically, counsel for the developer will need an expert in each of the trade or trades at issue in the defective construction. Counsel for the subcontractors typically only need one expert for the party they represent.

Building Code Expert

Sometimes the general contractor expert can also testify as to building code compliance, but not always. You may need a separate building code expert who can testify to the building codes that were in existence when the project was constructed. They will also be able to interpret those codes as to the compliance required for the project. Building codes seem simple but there are several that can apply to a project including the Uniform Building Codes, local building requirements, Americans with Disabilities building requirements, and others.

Product Liability Expert

Product liability is not always an issue with a construction defect case, but when it is, the expert needed will be someone who can testify to:

  • the faulty design or manufacture of a product;
  • inadequate warnings accompanying a product; or
  • misuse of a product.

The specific elements for a product liability action that need to be proven will drive the type of expert, but most likely it will be an engineer who can testify as to the material, design, and manufacture of the product. Common product liability defects in construction include windows, sheetrock, concrete, plumbing fixtures, and siding or stucco.

Subsidence or Earth Movement

Soils Engineering Expert

Soils engineering experts can testify as to the characteristics of the soil that the structure was built on. They investigate soil characteristics related to composition, drainage, and compaction. They can evaluate the weight-bearing capacity of the construction site and can calculate how the building will settle over time. If there's cracking in a foundation, wall, or concrete, a soils engineer should be able to determine if soil movement is the cause. Further, they can make a determination as to what caused the soil movement. Soils engineers were pivotal in the Millbrae, California landslide cases.

Geotech Engineer

Geotechnical engineers can testify to the cause of soil movement. A Geotech is normally used in cases involving subsidence of soils, sinkholes, landslides, erosion, and seismic activity. They can also provide an analysis of vibrations from heavy equipment on buildings and other completed constructions. The sinking Millennium Tower in San Francisco highlights the importance of using a geotech engineer expert.

Forensic Failure Analysis

Forensic Experts

Forensic experts can be engineers or they can be general contractors. Their expertise is in conducting destructive testing to determine causation. Water intrusion is a common problem in construction defect cases. A failure analysis expert can determine where the water is entering the building and can design the test to be performed based on engineering or other accepted standards. They will then conduct the test, making sure every aspect is properly documented for a courtroom presentation. These experts can be key in such cases as collapsed bridges to help determine the parties that should be involved.

Structural Engineering Expert

Cases that might need a structural engineer are those where there has been a structural collapse or fears of such a collapse. They can testify to design and construction issues, as well as maintenance and upkeep failures.

Damages

Real Estate Appraiser Expert

You may need a real estate appraiser to value the property so that the proper measure of damages can be determined. One measure of damages in a construction defect case may be the difference between the market value of the property before and after the damage. A real estate appraiser will be able to provide the information to make this evaluation.

Forensic Accountant

A forensic accountant will evaluate the economic damages. They will evaluate the construction damages by organizing and analyzing the financial documentation for the construction repair costs. They can evaluate the construction billing and job costs.

Before Hiring Expert Witnesses, You First Need the Right Clients and FindLaw Can Help

When hiring expert witnesses for your construction defect case, it's crucial to select the appropriate kind of expert for the specific issues at play. However, before you can even think about utilizing a construction defect expert, you must first have the right kind of client and case for your practice. FindLaw's Legal Marketing Solutions can help you target the clients you need. Reach out to us today to learn more.