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Excerpted from Verdicts & Settlements
Verdicts & Settlements (front page), December 12, 1997

The Watcher

A third party may be helpful in monitoring the expert when figuring the cost of repairs.

By Michael Solender


Experts have not had the misfortune to submit to various parties documents that were either incomplete, incorrect or a bit of construction defects cases, where experts are employed to prepare the list of defects together with the costs to remediate those listed defects, the submission of incorrect or incomplete information may nullify the expert's ability to resubmit the corrected documents at a later time. Therefore, you are condemned to use the improper or incomplete information that you sub mitted. This information, if incomplete or inadequately prepared, can drastically reduce the amount of dollars necessary to fund remediation work, thus leaving the job insufficiently funded for appropriate repair completion.

The costing of the appropriate fix has as its basic component two main elements. First, the defect or anomaly must be identified; when the defect is found, the most expedient and proper method to remediate the particular anomaly or defect must be propounded. Second, the expert must note the number of times a particular defect has been found or by further extension, extrapolated to exist in the entire project. It is perfectly proper to carefully examine all areas arid conditions where construetion problems have been reported to exist, but care should be made to exclude all such professional findings from the extrapolation calculations, unless such locations are placed in the entire matrix for later random selection. It is important to remember that in order to extrapolate for statistical accuracy, all samplings have to be absolutely randomly selected. Without the random selection method, the findings and the variables are not just inaccurate, the extrapolation cannot then be assumed.

Construction defects cover a substantial arena of problems. They are perhaps best described as construction elements that either violate the local building codes, deviate in a deleterious manner from the manufacturers' recommended installation instructions, and sometimes deviate from the industry's standard of care or approved plans, or a combination of any of the above.

The identification of the various defects and their causes are generally subject to the inspector's or expert's interpretation. Often the identification comes down to a question of whether the alleged defect was caused by inadequate blue-print and specification details, improper workmanship, the result of poor workmanship by other trades, deviation from the mariufacturers' installation recommendations, or by improper maintenance. Once the proper identification has been made, and it has been determined that the cause was riot due to improper maintenance, then the most effective method of remediation must be developed. Only after all the defects have been identified and the appropriate method of remediation has been developed, can the preparation of the repair-cost breakdowns be undertaken.

The danger of preparing the appropriate defects list and description without a thorough investigative inspection and analysis cannot be overstated. The probability of missing important defective construction elements loom large in such instances and often, because of case management orders, cannot be effectively later changed to include the missing elements, if found. This oversight of the additional defective conditions can thus greatly diminish the effective outcome of the case, leaving insufficient funds to complete the required remediation work.

Attorneys must rely on their hired experts for the accurate and complete defects lists. But do attorneys need to hire experts to watch the experts, and if so where will it all end? Certainly, insurance carriers have in-house counsel who watch the outside counsel so that indeed everyone is actually watching someone else. In reality, a system of checks and balances where the work product is overseen by a third party helps make everyone effective.

A good expert or attorney should not object to some additional oversight by those who pay their fees. Whereas the marketplace is the Final arbiter of the efficacy and quality of manufactured products, expert reports must be judged not only by what they claim but also by their silence on undiscovered or neglected issues often considered too insignificant to address.

In order to avoid omission mistakes along with the commensurate costing inaccuracy, it may be a sound practice to have a second professional opinion on both the construction-defects list as well as the cost-breakdown estimate. The cost to perform this extra function may be justified if inaccuracies or missed additional defects are found. Who are these people who are to watch the watchers and how can you recognize them? Having gray hair is not the indicator of wisdom once believed, although most of the better experts have many years of experience. When examining an expert's curriculum vitae, attorneys should look for practical, on-the-job type experience where the expert in question has actually performed the construction tasks himself or herself in addition to acquisition of academic training. A combination of both experiences is generally safer. The best source for expert referrals, however, is generally experienced lawyers in the field. If you do not know any attorneys specializing in construction defects, you may find some lawyers listed in the expert's curriculum vitae, but keep in mind that good construction experts are not necessarily good forensic experts. When all is said and done, the attorney must be the final arbiter.

MORE ARTICLES:

- THE CONSTRUCTION-EXPERT INDUSTRY: NEW DEVELOPMENTS

- CONSTRUCTION EXPERT CAN BUILD, OR DESTROY, A CASE

- EXPERTS CAN RESOLVE THE CONSTRUCTION CONUNDRUM
   Standard Construction Seldom Is Really Standard

- IN CONSTRUCTION CASES, BEWARE THE HIRED GUN

- THE COMPOUND CONSEQUENCE OF ONE SMALL
   DISCERNABLE LEAK INTO THE BUILDING ENVELOPE

- THE PANDORA'S BOX OF WATER INTRUSION LITIGATION

- CONSTRUCTION DEFECTS:
  How To Avoid the 'Big Hit' And Costly Litigation

- BUILDING A REMEDY

- WATER TORTURE

- THE WATCHER
   A third party may be helpful in monitoring the expert when figuring
   the cost of repairs

- KNOW-HOW
   A general contractor should have knowledge in related
construction areas to be effective as an expert witness

- EXPERT EASE
  OPINION: Construction defect experts provide lists of failures in
  preparation for litigation, and counsel must verify reports for accuracy

- MAKE READY
  Properly prepared expert witnesses will save both time and money.

- ON THE WATCH

- THE NUMBERS


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