Cambridge Massachusetts Building Expert Directory

Asbestos Client Alert: Court’s Exclusive Gatekeeper Role May not be Ignored or Shifted to a Jury

February 07, 2014 — Lee Marshall and Chandra L. Moore - Haight Brown & Bonesteel, LLP
In Estate of Henry Barabin v. AstenJohnson, Inc., - F.3d -, 2014 U.S. App. LEXIS 774, 2014 WL 129884 (9th Cir., Jan. 15, 2014) en banc, the Ninth U.S. Circuit Court of Appeals vacated a $10.2 million judgment in the Plaintiffs’ favor in a case where Plaintiff alleged that occupational exposure to asbestos from dryer felts caused his mesothelioma. The Ninth Circuit held that the district court abused its discretion by neglecting its duty as a “gatekeeper” under Daubert v. Merrell Dow Pharms., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), and Federal Rule of Evidence 702, by improperly admitting expert testimony at trial without first determining its reliability. The en banc court held that admitting the testimony on the debated theory that “each asbestos fiber causes mesothelioma” was prejudicial error and the court remanded the case for a new trial. The court also held that a reviewing court has the authority to make Daubert findings based on the record established by the district court, but in the instant case, the record was “too sparse” to determine whether the expert testimony was relevant and reliable or not. This ruling is a victory for the defense in that it reaffirms the federal court’s exclusive gatekeeper role and holds that the role may not be ignored or shifted to a jury. Unfortunately, the court did not go so far as to evaluate the inherent reliability of expert opinions based on the theory that “each asbestos exposure causes mesothelioma.” As such, it did not provide guidance as to what specific foundational requirements are required to admit, or exclude, these types of opinions under a Daubert analysis. In Barabin, Plaintiff alleged he was exposed to asbestos while working at a paper mill with dryer felts manufactured and supplied by Defendants. The issue was whether the dryer felts substantially contributed to Barabin’s development of mesothelioma, a determination that required expert testimony. Reprinted Courtesy of Lee Marshall, Haight Brown & Bonesteel, LLP and Chandra L. Moore, Haight Brown & Bonesteel, LLP Mr. Lee may be contacted at lmarshall@hbblaw.com and Ms. Moore may be contacted at cmoore@hbblaw.com. Read the court decision
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Appeals Court Upholds Decision by Referee in Trial Court for Antagan v Shea Homes

May 10, 2012 — CDJ STAFF

In the case Antangan v. Shea Homes Ltd. Partnership (Cal. App., 2012), Plaintiffs appealed “an order vacating a judgment and entering a modified judgment in their construction defect action against defendants Shea Homes, Inc. and Shea Homes Limited Partnership,” while the Defendant, Shea Homes Limited Partnership (Shea Homes) appealed “an order of the judicial referee denying its motion to strike and tax costs.”

On the Antagon issue, the appeals court concluded that “the trial court did not err by vacating and modifying its judgment so that the cost of referee’s fees would be equally divided by the parties and consistent with a prior stipulation they filed in court.”

On the Shea Homes issue, the appeals court concluded: “1) the judicial referee did not err by ruling that plaintiffs’ offers to compromise (§ 998) were validly served on Shea Homes’ counsel, 2) the offers substantially complied with statutory requirements, 3) the offers were not required to be apportioned, and 4) the referee’s award of $5,000 as costs for a person assisting plaintiffs’ counsel was not an abuse of discretion.” The appeals court affirmed the judgment.

Here is a brief history of the trial case: “Plaintiffs Chito Antangan, Jimmy Alcova and other homeowners brought an action against defendants Shea Homes, Inc. and Shea Homes Limited Partnership for damages alleging that the properties they purchased from these ‘developer defendants’ were defective. Plaintiffs claimed numerous construction defects required them ‘to incur expenses’ for ‘restoration and repairs’ and the value of their homes had been diminished.”

In response, Shea Homes filed a motion for an order to appoint a judicial referee. The motion was granted and it was ruled that “a referee would ‘try all issues’ and ‘report a statement of decision to this court.’”

On May 10, 2010 the judicial referee (Thompson) “awarded plaintiffs damages and various costs, and ruled that ‘Shea Homes shall bear all of the Referee’s fees.’” The latter ruling would become a matter for contention later on.

In July of 2010, the plaintiffs “sought, among other things, $54,409.90 for expert fees, and $14,812.50 for the services of Melissa Fox for ‘exhibit preparation & trial presentation.’ Shea Homes filed a motion to strike and/or tax costs claiming: 1) Fox was a paralegal, 2) plaintiffs were not entitled to attorney’s fees, and 3) the fees for Fox’s services were an indirect and improper method to obtain attorney’s fees. The referee disagreed and awarded $5,000 for Fox’s services. The referee also ruled that plaintiffs had properly served valid offers to compromise (§ 998) on Shea Homes’ counsel in 2009. He said those offers to defendants in the case at that time did not have to be apportioned.”

“Antangan contends the trial court erred when it vacated and modified its original judgment, which ordered Shea Homes to pay all the referee’s fees. We disagree.”

Antagon contended that the trial court erred when it vacated and modified its original judgment regarding Shea Homes paying the referee’s fees. The appeals court disagreed: “A trial court has inherent authority to vacate or correct a judgment that is void on its face, incorrect, or entered by mistake. (§ 473; Rochin v. Pat Johnson Manufacturing Co. (1998),67 Cal.App.4th 1228; Olivera

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As Climate Changes, 'Underwater Mortgage' May Take on New Meaning

August 20, 2014 — James Tarmy – Bloomberg
Looking to buy a house? That’s great, unless you’re in your 20s and 30s and regularly read climate reports. They tend to project dramatic changes to the climate over the next 50 years, and given that current life expectancy is hovering around 80, we’ll likely be around to see it. So. If you’re looking to settle down for the long haul, where’s the best place to do it? Great Plains? You're looking at higher temperatures and more demand for water and energy. The Southeast, perhaps? The region may suffer from (at least) 60 days with 95-plus degree weather by 2070, according to the 2014 National Climate Assessment. Read the court decision
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Reprinted courtesy of James Tarmy, Bloomberg

Rooftop Solar Leases Scaring Buyers When Homeowners Sell

June 26, 2014 — Will Wade – Bloomberg
Dorian Bishopp blames the solar panels on his roof for costing him almost 10 percent off the value of the home he sold in March. That’s because instead of owning them he leased the panels from SunPower Corp. (SPWR), requiring the new owner of the house to assume a contract with almost 19 years remaining. He had to shave the asking price for the house in Maricopa, Arizona, to draw in buyers unfamiliar with the financing arrangement. Leasing is driving a boom in solar sales because most require no money upfront for systems that cost thousands of dollars. That’s made solar affordable for more people, helping spur a 38 percent jump in U.S. residential installations in the past year. Since the business model only gained currency in the past two years, the details embedded in the fine print of the deals are only starting to emerge. Read the court decision
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Reprinted courtesy of Will Wade, Bloomberg
Mr. Wade may be contacted at wwade4@bloomberg.net

McGraw Hill to Sell off Construction-Data Unit

March 19, 2014 — Beverley BevenFlorez-CDJ STAFF
McGraw Hill Financial announced “plans to sell a construction-data unit concentrated on the U.S. market” according to The Wall Street Journal. This follows McGraw Hill’s determination to “focus on global operations and cutting costs.” “The construction division ‘is not a business linked to the global markets,’” Douglas L. Peterson, McGraw Hill’s Chief Executive said to The Wall Street Journal. “’It's very different’ than its other units, such as Standard & Poor's Ratings Services, J.D. Power or S&P Capital IQ, with the potential for larger international footprints.” McGraw Hill’s construction division “sells commercial-real-estate information to developers and manufacturers” and “generates about $170 million in annual revenue.” The division “employs about 650 people.” Read the court decision
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A Word to the Wise: The AIA Revised Contract Documents Could Lead to New and Unanticipated Risks - Part II

October 16, 2018 — George Talarico - Construction Executive
Part I addressed general conditions, revised insurance terms, revisions that affect owner’s required insurance and revisions that affect contractor’s required insurance. REVISIONS THAT AFFECT DISPUTE RESOLUTION A seemingly minor but noteworthy change is to the definition of “Claim.” Under Section 15.1 a “Claim” is defined to:

include a request for a modification of contract time; and
exclude any requirement that an owner must file a claim to impose liquidated damages.

Notably, any request relating to contract time must be brought within the specified time period for Notice of Claim and in the prescribed manner. There are at least two traps for the unwary. First, even though email is regularly used for communications among the parties, the revised contract documents do not recognize email as an acceptable form of delivery of a Notice of Claim. Second, an unwary contractor may wrongly assume that an owner’s failure to assert a claim for LDs means that LDs will not be imposed. This may lull the contractor into failing to timely assert its own claim for a time extension and thereby waiving its ability to do so. Reprinted courtesy of George Talarico, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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Mr. Talarico may be contacted at gtalarico@sillscummis.com

Five Facts About Housing That Will Make People In New York City and San Francisco Depressed

February 26, 2015 — Flavia Krause-Jackson and Alexandre Tanzi – Bloomberg
If you live in New York or San Francisco, you should spend some time mining the latest crop of home price data -- starting with the Standard & Poor’s Case-Shiller indices. Then, pull out your last rent check. It might be enough to make you move. Here are a few things to get you thinking: 1. What you pay for parking in New York can buy a cheap home in Chicago The cheapest tier of homes in the Windy City were valued at less than $170,368 in November, the Case-Shiller tiered-price indices show (there are three tiers: low, middle and high). That compares to the $136,052 average price tag for parking space in New York last year, according to Jonathan J. Miller, the president of the appraisal firm Miller Samuel and a Bloomberg View contributor. Reprinted courtesy of Flavia Krause-Jackson, Bloomberg and Alexandre Tanzi, Bloomberg Read the court decision
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Subsurface Water Exclusion Found Unambiguous

July 14, 2016 — Tred R. Eyerly – Insurance Law Hawaii
The Eighth Circuit rejected the policyholder's appeal on the ambiguity of a subsurface water exclusion. Bull v. Nationwide Mut. Fire Ins. Co., 2016 U.S. App. LEXIS 9703 (8th Cir. May 27, 2016). Michael Bull, the insured, experienced a leak from a buried pipe beneath his garage slab. The leak caused settling and mold, including the settling and cracking of his foundation, a brick walkway, and interior walls. Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii
Mr. Eyerly may be contacted at te@hawaiilawyer.com

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