Plaintiff Homeowners Await Backfire In Sulfate Attack Lawsuit

Follow up to Concrete Products’ March 2006 Tech Talk (page 44) Attorneys for National Ready Mix Services Co. are seeking $2.2 million from a group of

Follow up to Concrete Products’ March 2006 Tech Talk (page 44) ÷ Attorneys for National Ready Mix Services Co. are seeking $2.2 million from a group of Mission Viejo, Calif., homeowners (Castron) whose lawsuit against the Los Angeles-based producer fizzled late last year when Orange County Superior Court rejected evidence to support alleged damages stemming from the supply of defective, sulfate attack-prone concrete. Judge David Velasquez ruled that plaintiffs in Castron, et al v Fieldstone, et al did not prevail in their allegations of damages against National Ready Mix, the sole defendant which did not settle with the homeowners prior to the end of trial.

His finding was announced as a preliminary decision in December and entered as a final determination in late March. It sets up a turning of the tables, as National Ready Mix can now pursue reimbursement of costs incurred to defend itself against charges from plaintiffs who had sought more than $5 million in judgments tied to concrete foundations allegedly damaged or prone to damage due to ready mixed concrete proportioned with improper maximum water to cement ratio. The reimbursement provision stems from the plaintiffs’ rejection of April and June 2004 settlement offers amounting to about $1,000 and $3,000 per house. In cases where plaintiffs reject pre-trial settlements then fail in court to prove damages of at least the amount offered to settle, California law allows defendants to seek reimbursement for defense related costs.

National’s counsel, Santa Ana, Calif.-based Montelone & McCrory LLP, has detailed in excess of $2.2 million in such costs in a memorandum to Judge Velasquez, who could hold 19 Castron homeowners responsible for the entire amount, or roughly $115,000 each. The amount includes upwards of $2 million National incurred for Montelone & McCrory to demonstrate the acceptability of the mix proportioning practice for concrete in high sulfate conditions typical of southern California soils, and accepted petrographic and other methods used to evaluate sulfate attack or damage in finished slabs or structures.

One expert witness for the defense, Geoff Hichborn Sr., P.E., cast doubt on the appropriateness of plaintiff experts’ concrete specimen test methods, including the use of scanning electron microscopy; computer modeling of sulfate damage; and, vapor emissions testing of the slabs. Montelone & McCrory notes that a determination on the cost reimbursement could be made over the next few months. While Judge Velasquez’s ruling sets no judicial precedent, it warns homeowners of the financial risks involved in construction defect lawsuits, according to William Ingalsbe, Esq. This is the risk a homeowner takes when initiating litigation based on Îjunk science,Ì he affirms.