In construction defects litigation, opposing parties often present widely divergent assessments of the nature, cause, and extent of purported deficiencies. Such conflicting presentations may well be founded on reasonable analyses by impartial experts who simply have honestly differing perspectives of the underlying facts and logic of the case. Alternately, some consultants simply may not truly understand the issues being litigated.
However, as demonstrated with the following “case studies”, there are building enclosure experts (plaintiff and defense) who willingly advocate findings that exceed the bounds of honest reason and basic credibility. Often, these egregious advocates misuse traditional statistical analysis or the qualitative sampling precepts of industry standard ASTM E2128 (“Standard Guide for Evaluating Water Leakage of Building Walls”).
Consider a 50-building apartment complex in Arizona where – at 200 second-floor entry landings (Figure 1) – improperly attached and terminated metal flashings (Figure 2) provided multiple routes (Figure 3 and Figure 4) for damaging rainwater migration down to the stucco-wrapped engineered wood beams supporting these stair landings. As seen at all 200 of these beams, evidence (e.g., staining and efflorescence per Figure 1) of trapped moisture and underlying damage (Figure 5 and Figure 6) readily could be seen at the wrapped stucco.
As this case slowly proceeded through state and federal litigation processes, AVELAR personnel testified that these conditions compromised these buildings’ minimum expected “service life” in violation of applicable building codes, industry standards, the contracted project specifications, and the permitted architectural drawings. In contrast, opposing defense consultants asserted that all such incomplete waterproofing and flashing work complied with local construction practices. (In essence, these parties argued that the water-damaged wood beams simply represented uninsured “acts of God”.) While these local consultants may truly have believed that such poor craftsmanship was the local industry “standard” for lowest-bid contractors at large-scale multifamily residential projects, we strongly disagreed.
Further, despite doing no destructive testing of its own, the defense presented an economist to argue that the lack of randomized statistical sampling rendered our extrapolative findings invalid. In response, we cited the purposeful expert-driven “qualitative” (non-statistical) protocols recommended by the authors of ASTM E2128, as further reviewed at Case Study 2 below. In the end, jurors at the two trials (state and federal) concluded that these various defense arguments exceeded the bounds of reason and credibility.
Consider a condominium complex in San Jose: the multistory wood-framed, stucco-clad (Figure 7) structure was built atop a concrete “podium slab” that serves as the structural lid for the parking garage below. At the facility’s interior courtyard, a concrete “topping slab” was installed (above a waterproofing membrane) atop the podium slab. As evidenced by Figure 8, we observed multiple areas of damaging water leakage through the podium slab down into the garage.
Then, per Figure 9, destructive testing at the topping slab confirmed trapped water between the waterproofing membrane and the podium slab. Finally, as exemplified by Figure 10, at 16 distinct test locations at stucco-clad wall-to-slab transitions we consistently found trapped moisture and associated structural damage due to flashing and drainage deficiencies. In our summary report, we confidently extrapolated these base-of-wall performance deficiencies to the entire perimeter (~1,000 lineal feet) of the interior courtyard. The defense elected to not carry out any destructive testing.
Figure 1 – Case Study 1 – Typical entry stair landing at 50-building apartment complex in Phoenix, AZ.
Figure 2 – Case Study 1 – Removal of concrete walking surface revealed improperly attached and terminated metal flashings.
Figure 3 – Case Study 1 – Infiltrating water flowed under/around the “T-bar” flashing down to the wood beam below.
Figure 4 – Case Study 1 – Such damaging leakage was accelerated by breaches in the waterproofing membrane.
Figure 5 – Case Study 1 – This damage was exacerbated by the absence of weep screeds at the stucco-wrapped beams.
Figure 6 – Case Study 1 – Trapped moisture at the engineered wood beams promoted structural damage and fungal growth.
Figure 7 – Case Study 2 – Transition from the stucco-clad walls to the “topping slab” and underlying “podium slab”.
Figure 8 – Case Study 2 – Extensive water leakage through the podium slab was seen at the ceiling of the parking garage.
Figure 9 – Case Study 2 – Trapped water was found atop the podium slab (under the waterproofing membrane).
Figure 10 – Case Study 2 – Trapped moisture and resulting damage were found at the basewall transitions.
During the ensuing litigation process, a defense statistician (whose doctorate was in the field of “quantitative sociology” ) asserted these documented conditions simply could not be considered “representative” because our team’s sampling and evaluative methods had not been carried out in accordance with statistical sampling protocols. In deposition, he opined, “What they would have to do is lay out the linear feet of the integration of the membrane with the podium walls. …Do you test 3 feet? Do you test 5 feet? Whatever. Break it up into numbered segments and randomly select…”
He further testified, “I don’t believe there is an industry standard for how to do this. There is a right way and a wrong way to do it, and what I’ve given you is the right way to do it.” As further reviewed below, such fervent and unsupported righteousness by defense statisticians employed for construction defects litigation commonly is based upon unintended logical fallacies and associated “circular reasoning”.
In short, despite having no construction experience of any kind, he fully rejected the purposeful expert-driven qualitative (non-statistical) protocols recommended within industry standard ASTM E2128:
Consider a massive 800-unit, 100-building condominium complex in the northeastern United States. The project was developed in five distinct construction phases over a ten-year period using generally differing contractors and subcontractors. At every building, the primary cladding system is vinyl lap siding, with smaller sections of traditional three-coat stucco, adhered masonry stone veneer, and composite panels.
To evaluate the extent of alleged construction defects, the homeowners association hired an East Coast building enclosure consulting firm that drilled 4,762 pairs of holes (i.e., on average, 47.6 pairs of holes per building) through these multiple claddings in order to insert insulated pins to measure moisture content (MC) levels at the underlying wood-based sheathing or framing.
From these MC readings at the 100 buildings, a total of 64 “test cut” locations were selected for destructive examination. The conditions exposed by these test cuts were key factors in the principal architect’s claims that most of the cladding systems at this complex should be replaced (or partially reinstalled). It was asserted that these qualitative extrapolations were consistent with the cognitive sampling protocols of industry standard ASTM E2128.
We were hired by the defense to assess the credibility of these extrapolations. Upon review, we found this architect’s analyses contained blatantly bloated advocacy. For example, of the 1,047 readings taken through the vinyl lap siding only 18 measured 20% MC or higher. Further, this architect’s projectwide siding extrapolation was supported by only six test openings (of which, five were taken at only one construction phase of this five-phased, ten-year, multi-contractor project).
Then, perhaps recognizing the absurdity of extrapolating from such limited destructive sampling, he further claimed that a purported window sill flashing deficiency (seen only at three test openings at the adhered masonry stone veneer-clad walls) necessitated re-flashing (with associated cladding remediation) all 9,000 windows at all exterior cladding systems throughout the entire complex.
Even more remarkably, while the architect’s crew had inspected sill flashing at only one of the 5,300 windows at the vinyl-clad walls and, bizarrely, the conditions exposed at this window had not revealed the purported flashing defect, this architect’s fully burdened costing analysis for vinyl siding remediation (not including additionally claimed costs for reflashing these 5,300 windows) still exceeded $5.7 million. Similarly questionable analytical incongruities riddled the firm’s summary report.
We advised our client that these assertions were not consistent with the protocols of ASTM E2128, which advises: “The conclusions and findings from an evaluation must be rationally based on the activities and procedures undertaken and the information acquired, if they are to be considered legitimate and substantiated.”
We further reported: “(F)or their findings to be considered substantive, building envelope professionals must avoid any degree of biased advocacy that hides, distorts, or selectively interprets the collected data. An absolute cornerstone of the qualitative survey process is the credibility of the researcher. The trustworthiness of the qualitative analysis corresponds directly to the trustworthiness and demonstrated competence of the investigator.”
Consider a 31-building condominium complex in Jacksonville, Florida. The homeowners’ association hired a respected local engineering firm to carried out a building enclosure investigation relying upon multiple industry standards, including ASTM E2128, ASTM E2266 (Standard Guide for Design and Construction of Low-Rise Frame Building Wall Systems to Resist Water Intrusion), and ASTM E2018 (Standard Guide for Property Condition Assessments: Baseline Property Condition Assessment Process).
During our later review, we found this engineer’s building enclosure assessment process to have been consistent with the investigative and evaluative protocols of ASTM E2128. As has become increasingly common, the defense elected to do no destructive testing of their own, instead hiring a statistics professor from an Arizona university who opined that plaintiff expert’s analyses were not valid because the qualitative investigaton had not been carried in conformance with the protocols of “hierarchical statistical analysis” (commonly used for clinical trials that evaluate the efficacies of medical or educational treatments).
We were commissioned to explain to the court the irrationality of this defense statistician’s assertions, which we demonstrated were founded upon logical fallacies and associated circular reasoning that served to thoroughly discredit the professor’s analyses. Like most statisticians who wander blindly into the defects litigation arena, a freely admitted lack of practical construction knowledge or experience had not constrained the professor from confidently opining:
This argument is fundamentally flawed because it begins with a demonstrably unproven premise (that, despite the industry-accepted methodologies of E2128, random statistical sampling is the only legitimate approach for construction defects inspection and evaluation processes) that leads circularly to a predetermined conclusion.
We advised our client that “extrapolation” certainly encompasses far more than the self-promoting definition of a special interest group. Consider, for example, how well Merriam Webster’s definition (“to infer values of a variable in an unobserved interval from values within an already observed interval” ) comports with E2128’s investigative and extrapolative protocols.
In our firm’s litigation experience, all defense statisticians have strived to craft via circular reasoning an illusory “straw man” opponent (a pretend incompetent statistician) that they then readily can rebut from the confines of their offices while fully side-stepping the actual merits (or lack thereof, as seen above at Case Study 3) of the plaintiff expert’s extrapolative findings.
In our opinion, this approach constitutes close-minded intellectual laziness masked by self-referential certitudes unsupported by any construction-knowledgeable authority or industry association or government agency.
IIBEC’s Code of Ethics well defines the moral and ethical duties of building enclosure experts: “Members and registrants …shall maintain the highest possible standard of professional judgment and conduct. Members and registrants shall conduct their practice honestly and impartially, serving with integrity their clients, employers, and/or the public. Learned and uncompromised professional judgment should take precedence over any other motive.”
Unfortunately, as exemplified by these typical case studies, IIBEC professionals will encounter a wide range of litigation consultants whose assertions greatly exceed the bounds of expert reason and credibility. There always will be monetary rewards for those willing to promote extreme positions intended to game the litigation process. Interestingly, we often find those attorneys (plaintiff and defense) who actively encourage egregious advocacy will justify this approach by vilifying the purportedly malign misconduct of the other side.
Still, the seemingly nefarious intent of the opposition may merely reflect nothing more than a lack of codes and standards training. As suggested above in Case Study 1, certain defense-only consultants may truly believe that rainwater leakage and resulting structural decay are acceptable outcomes at cost-conscious production home projects.
Similarly, as well typified in Case Studies 1, 2, and 4, those defense statisticians hired to discredit qualitative extrapolations carried out in conformance with ASTM E2128’s protocols profess to operate in a different plane where their formulaic calculations will always trump expert-driven knowledge and field experience. Whether these consultants are economists, quantitative sociologists, or advanced practicioners of heirarchial statistical analysis, their acknowledged lack of practical construction knowledge is seen as being irrelevant. Any contrary assertion will be discounted during the litigation process via narrowly self-referential circular reasoning.
By contrast, in Case Study 3, the plaintiff architect’s grossly exagerrated extrapolations did appear to evidence knowingly compromised professional judgments unworthy of a building enclosure expert. In all such instances: “For their findings to be considered substantive, all qualitative researchers, including building envelope professionals, must avoid any biased advocacy that hides, distorts, or selectively interprets the collected data. The mantra of the qualitative researcher must be: ‘It is what it is.’ In other words, the data tell the story, even if this story differs from the desired or expected findings.”
As IIBEC members, we must strive to resist both unsupported certitudes and ethically compromised advocacy by practicing expert-driven analysis derived with professional integrity from applicable code requirements and associated industry standards.
