In a landmark ruling that could affect dozens of similar California cases, Orange County Superior Court Judge David Velasquez recently dismissed standard
In a landmark ruling that could affect dozens of similar California cases, Orange County Superior Court Judge David Velasquez recently dismissed standard evidence used by plaintiffs’ attorneys in an estimated $1 billion worth of concrete-foundation defect lawsuits.
For years, construction defect lawyers have claimed that tens of thousands of southern California home foundations were built with improperly mixed concrete. Contractors and concrete companies have been quick to question the validity of such claims, especially since prior lawsuits yielded settlements totaling hundreds of thousands of dollars per homeowner, none of whom used the money to rectify alleged defects.
But late last year, after 10 months, 400 exhibits, and testimony from more than 20 well-paid expert witnesses, Judge Velasquez ruled that much of the plaintiffs’ evidence in Castron v. Fieldstone would be restricted from a trial as it failed to satisfy generally accepted scientific standards to prove that the supplied concrete was defective or that the product had subsequently been damaged by external sulfate attack. This junk science ruling represents a significant turn of the tide as it marks the first time that a concrete producer Û in this case, National Ready Mix Services Co. Û decided to fight rather than settle, and has successfully disproved charges of concrete defects. Original co-defendant Standard Concrete Products, Inc., which supplied ready mixed to nine of the 27 house foundations named in the original suit, settled before the case went to trial for a per-house amount in the high four-figure range.
In what may act as the greatest deterrent to future suits, the plaintiffs in this case Û a group known as Castron, claiming foundation damage to the 18 remaining home foundations in Mission Viejo Û face the possibility of splitting National’s legal expenses. Instead of sharing the $5.24 million they sought in damages, the plantiffs could be on the hook for $1.5 million (or $80,000-plus per house). Both sides are awaiting a ruling from the court to determine the exact amount to be paid out by the homeowners.
TUMS PROVIDES RELIEF
One of the key components in the defense of National Ready Mix by attorneys Monteleone & McCrory, LLP, was the testimony of expert witness Geoff Hichborn, president and CEO of Hichborn Consulting Group, a civil engineer and concrete materials specialist. In a past lawsuit and under oath, he says, some of the plaintiff’s experts [in the Castron case] were unable to tell the difference between a concrete sample and a Tums tablet using one of their primary examination tools, a scanning electron microscope equipped with energy dispersive X-ray spectroscopy.
Even though the judge had earlier denied the defendants’ motion to exclude scanning electron microscopy as inappropriate evidence, he ruled that the results did not support the plaintiffs’ allegations. Many of the micrographs plaintiffs proffered as key examples of cracking due to sulfate attack lacked the classic appearance of sulfate damage, he writes in his decision.
William Ingalsbe, lead defense attorney in the case explains, The bottom line is that this lawsuit, and so many others like it, is based on testimony that arises from unusual and inappropriate tests that are not based on accepted methods.
The specific tests in question include the STADIUM/SIMCO computer model used to predict the extent of distress expected over time in concrete due to sulfate attack; water vapor and rapid chloride penetrability tests; vapor emissions testing; and, microscopic and other means for determining water-to-cement ratio of hardened concrete. Several of these tests rely on electron microscopy and other assorted means for identifying defects in concrete. These include the water drop test, examination of florescent dye epoxy-impregnated concrete samples, scratch hardness test, and related visual characteristics.
Each of the techniques used by the plaintiffs’ experts was a subjective and nonstandard method used simply to justify their predetermined and biased opinions, says Hichborn. Good techniques require standardized, objective, and reproducible methods that will lead to logical conclusions.
LEARNING FROM HISTORY
Castron is not the first time a judge has stepped in to exclude from the jury’s view evidence not based upon accepted methods for the forensic examination of concrete. In Spitz v. YL Brighton Associates I, a 2001 case with similar sulfate damage claims, Orange County Superior Court judge disallowed these same testing methods, as well as other tests that were not used in the present case. However, that decision does not preclude plaintiffs’ attorneys from attempting to use the same methods in new cases.
Castron defendants say the most recent decision could prove to be a turning point in what has become a major construction industry debate in California. Since the mid-1990s, some estimate that more than $1 billion has changed hands in related settlements and verdicts, principally based on allegations of sulfate attacks on concrete foundations.
Prior to Castron, perhaps the highest profile sulfate case in California was Mesa Vista South Association v. California Portland Cement. Ultimately, the California Supreme Court denied a petition to appeal the Fourth District California Court of Appeals’ August 2004 decision against California Portland’s ready mixed business Catalina Pacific Concrete (a ruling that included a $5.4 million judgment against the company). However, the Supreme Court decertified the appellate court’s decision, meaning it was not published in any official records and thus can not be used as precedent in similar cases.
According to Hichborn, the primary reason for that case being depublished was the flood of more than 60 amicus letters from companies both inside and outside the construction industry concerned that the original decision in the case effectively said there were no limitations on warranties and that a person can demand a company repair a product long after warranty expiration.
One aspect to concrete-defect lawsuits that is on record is how ineffective California Senate Bill 800, which provides a 90-day window for builders to repair defects, has been at deterring homeowners from suing. SB800 has been on the books for a couple of years, explains Hichborn. It provides for a procedure before homeowners can initiate legal action. But there are a couple of key flaws, the biggest one being that if the builder goes ahead and makes repairs, the plaintiff still has the right to determine whether they are satisfactory. The builder has no promise of finality.
Maybe the builder could live with that if whatever money he invested in the repair would count as an offset from whatever the judge decided in a lawsuit, but he can’t get his dollars recognized in an offset. He literally has no motivation, if he perceives that the plaintiffs are just going through the motions to let the process drag.
Hichborn speculates that what may dissuade homeowners from legal actions in the future are disclosure requirements when they decide to put their homes on the market. We’ve always had disclosure laws, and some attorneys argue that there is a duty to disclose lawsuits as well, he says. Everybody agrees that there’s a duty to disclose damages or home-performance problems about which the owner is aware. It begs the question: If an sale-minded owner has participated in a suit that says the foundation is crumbling to dust, does he or she not have the duty to tell a prospective buyer that an attorney said the foundation would only last another seven years?
The sad thing about these suits is that everybody has become so callous about them that it really doesn’t change the resale value of a home very much. Most people accept the proposition that these suits are not really about damages, but about the homeowner getting some money.