Best Practices for ESI Collection in Construction Litigation
October 05, 2020 —
Kelley J. Halliburton - Construction ExecutiveThe construction business has always been heavy on records and data but now more than ever much of that information is stored electronically. Gone are the days of just a trailer full of drawings and paper documents.
Construction projects now have huge amounts of electronically stored information (ESI) including contract documents; drawings in both CAD, PDF and other formats; schedule files such as Primavera; spreadsheets; photos; job cost control software files; formal correspondence; and an ever-expanding amount of email communications. Successful collection of this ESI can be critical to the success of litigation in construction cases, where often very complex facts will need to be gathered to support a claim or defense.
The best first step to a successful ESI collection is to build a solid foundation before trouble arises with prepared policies and procedures in place. Implementing and enforcing a document management plan on a project basis will make sure documents are kept in an organized fashion so that materials can be accessed quickly and easily. Document management is important for types of ESI that are not handled well by word-searches, including Primavera schedules, photos and videos.
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Kelley J. Halliburton, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Denver Parking Garage Roof Collapses Crushing Vehicles
February 12, 2014 —
Beverley BevenFlorez-CDJ STAFFOn Monday night, a parking garage ceiling collapsed at the Park Mayfair Condos in Denver, Colorado, according to KKTV News. Residents claim that “between five and ten vehicles were completely destroyed after the ceiling of the underground garage caved in.” No one was injured from the incident. Structural engineers have not commented “yet on how the collapse occurred, but residents told sister station KCNC that the ceiling fell after a cement beam holding up one side of the roof collapsed.”
According to KWGN News, FOX31 interviewed a “passerby” who alleged that he lived in the condominium five years ago, but moved out “because inspectors repeatedly sent notices to fix problems with the garage, but, to his knowledge, no action was taken by the condo complex.”
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Builders Beware: A New Class Of Defendants In Asbestos Lawsuits
January 06, 2016 —
David J. Byassee, Bremer Whyte Brown & O’Meara, LLP & Timothy A. Gravitt, Ulich, Ganion, Balmuth, Fisher & Feld, LLPResidential, commercial and industrial builders face new and potentially significant liability for construction activities that took place in the 1960s, 1970s and 1980s: personal injury lawsuits filed by construction workers from exposure to building products containing asbestos. After emptying the pockets of manufacturers and suppliers of raw asbestos and asbestos-containing products over the last 20 years, plaintiff lawyers are beginning to set their sights on a new class of defendants in asbestos litigation: residential, commercial and industrial builders who unknowingly allowed asbestos-containing products to be incorporated into their projects.
The men and women who have been involved in the building industry for 40 years or more may remember the subject of asbestos surfacing in the 1970s with the enactment of the Occupational Safety and Health Act (OSHA). At that point builders were just beginning to learn that asbestos was a component of some building materials, and the potential risk of cancer presented by asbestos was being debated in scientific and medical journals. Although the use of building materials containing asbestos was mostly phased out by the 1980s, the health risks associated with exposure to asbestos continue – and in fact increase – for the duration of an exposed person’s life.
Today it is generally accepted that exposure to asbestos increases the risk of developing asbestosis and certain kinds of cancer, including mesothelioma. Cancers associated with exposure to asbestos are typically diagnosed at least 15 years (and sometimes up to 50 years) after a person’s exposure to asbestos, meaning that exposures in the 1960s, 1970s and 1980s might not manifest in disease until now. The class of persons who may be at risk for asbestos-related disease is long and varied: insulators, HVAC installers, pipe fitters, plumbers, drywall installers, painters, plasterers and roofers, to name a few. Long-term exposure history, coupled with the theory that “each and every” exposure during a lifetime is a substantial factor increasing the risk of developing cancer, presents potential liability to builders acting as general contractors and/or property owners, as well as the usual defendants in asbestos lawsuits, which include manufacturers, suppliers, and users of asbestos-containing materials.
In recent years, plaintiff lawyers have set their sights on builders as the financial wherewithal of traditional asbestos defendants has dried up. Plaintiff lawyers have created a new theory of liability which they use to rope builders in as defendants in asbestos lawsuits: that the builder knew – or should have known – that a deadly ingredient (asbestos) was contained in the building materials used in construction, and the builder failed to warn its subcontractors or anyone else on the project that exposure to asbestos could harm them.
Builders have unique legal defenses to claims brought by employees of subcontractors who have developed asbestos-related disease. For example, the California Supreme Court in Privette v. Superior Court (1993) 5 Cal.4th 689, held that an injured employee of a subcontractor cannot maintain a claim against the hirer (builder) for the employee’s injury absent affirmative contribution on the part of the builder to the injury. Thus the first line of defense in an asbestos exposure case is to argue that the developer had no direct role in the plaintiff’s exposure to asbestos and therefore the Privette doctrine precludes the plaintiff from suing the builder. But resourceful plaintiff lawyers are coming up with arguments to get around this so-called Privette defense in asbestos lawsuits by claiming that builders’ activities such as cleanup of asbestos-containing materials, or assertion of control over the work of the subcontractor, directly contributed to the plaintiff’s injuries and therefore provide exceptions to Privette and allow the claim to proceed.
A practical question is raised in asbestos cases: How is a plaintiff able to prove, decades after working on a project, what building materials contained asbestos, or that a builder knew or should have known in the 1960s, 1970s or 1980s that asbestos-containing materials were used on their project, or that asbestos presented a health risk? To answer the first part of the question (what building materials contained asbestos), plaintiff’s experts will say that during the relevant timeframe asbestos was a common ingredient in many building products, e.g., drywall joint compounds, stucco/plaster/gun cement, acoustic ceiling products, cement pipe, insulation, roofing mastic, caulk and plumber’s putty; this can be further proven by reference to product manufacturers’ disclosures made pursuant to the Asbestos Information Act. Also, through the decades of asbestos litigation against product manufacturers and suppliers, resourceful plaintiff lawyers have developed vast banks of data and documentation identifying the manufacturers of asbestos-containing building products, the end-users of those products, and the projects where those products were supplied. With this bank of knowledge, all that is necessary for them to make the claim against a builder is to have the plaintiff identify a construction project where he or she remembers working during the relevant timeframe. Once that identification is made, it is a simple matter for the lawyers to dig and find out who developed the building/project, who then becomes a defendant in an asbestos lawsuit.
The answer to the second part of the question (whether the developer knew or should have known that the products brought to their projects contained asbestos) requires a detailed investigation into the dates at which the products were supplied to the project, the manufacturer of the product, and what information was available in the market place about the material content of the particular product.
The answer to the third part of the question (knowledge that asbestos presented a health risk) is trickier. One of the first standards set by OSHA in 1972 related to permissible levels of exposure to asbestos. It is a common tactic for plaintiff lawyers to argue that the existence of OSHA standards created a presumption of knowledge in the building industry about the dangers of asbestos. But what about pre-OSHA knowledge? Here plaintiff lawyers will argue that well before OSHA, going back as far as 1936, exposure to asbestos was regulated in California under General Industry Safety Orders relating to Dusts, Fumes, Mists, Vapors and Gases. They argue that the General Industry Safety Orders put builders “on notice” of the dangers of asbestos by virtue of being regulated by the State of California, and, by extension, builders had “knowledge” of the health risks associated with asbestos.
There are defenses that skilled defense counsel can utilize to defeat asbestos claims, assuming the Privette defense is not available. The first is to thoroughly investigate and evaluate all of the plaintiff’s potential exposures to asbestos throughout his entire lifetime, and identify those sources that likely were the major contributors to his disease. Next, counsel has to properly investigate the project at which the plaintiff is alleged to have been exposed to asbestos, identify all of the possible sources of exposure, i.e., the products that were used or might have been used at the project, and finally how the plaintiff was allegedly exposed at the project. As most builders do not maintain records of what products were used in their projects dating back 15 years or more, let alone the identities of the trades that worked on the projects, knowledgeable defense counsel can be a valuable partner in unearthing the brands of products typically in use in the locale where the construction took place, and identifying the manufacturers of those products. Defense counsel must analyze the frequency, duration, proximity and intensity of the exposure, as well as the type of asbestos the plaintiff was allegedly exposed to (not all asbestos is created equal – some types are more toxic than others). This will involve careful evaluation of the levels of exposure created by the alleged activity of the builder, to determine, through experts and a thorough understanding of the scientific and medical studies on the subject, whether the levels of asbestos exposure created by the activity could be considered a “substantial factor” in contributing to the risk of the plaintiff’s development of his asbestos-related disease.
Asbestos lawsuits present a significant risk to the unsuspecting and unprepared builder. Money damages available to a plaintiff are substantial. Medical expenses for treatment of asbestos-related disease typically run into the hundreds of thousands of dollars, lost income (including retirement benefits) can also be significant, and jury awards for pain, suffering and emotional distress can be staggering - often millions of dollars. In some cases punitive damages are even awarded.
The bottom line is that a builder runs a big risk if it treats an asbestos claim like any other claim. The level of analysis and investigation to properly defend against the claim requires prompt action by knowledgeable counsel, and frequently there is no insurance coverage.
David J. Byassee is an attorney with the firm
Bremer Whyte Brown & O’Meara, LLP, and is a litigator who has devoted nearly a decade to representation of real estate developers and builders. He can be reached at: dbyassee@bremerwhyte.com.
Timothy A. Gravitt is an attorney with the firm
Ulich, Ganion, Balmuth, Fisher & Feld, LLP who is devoted to defending real estate developers and builders in a variety of litigation. He can be reached at: tgravitt@ulichlaw.com.
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The Problem with One Year Warranties
June 10, 2015 —
Craig Martin – Construction Contractor AdvisorContractors often ask if they should include a one year warranty in their subcontracts. I tell them that they can, but it may be more effective to include a one-year correction period. If a contractor does include a warranty in the contract, it may actually extend the time in which a contractor may be sued. I recommend instead a Correction Period.
Typical Construction Warranties
Form construction contracts, like the AIA forms, often times contain warranty language. The AIA A201, General Conditions, contains a warranty section that covers materials, but it does not address how long the work is warranted:
“3.5 WARRANTY
The Contractor warrants to the Owner and Architect that materials and equipment furnished under the Contract will be of good quality and new unless the Contract Documents require or permit otherwise. The Contractor further warrants that the Work will conform to the requirements of the Contract Documents and will be free from defects, except for those inherent in the quality of the Work the Contract Documents require or permit.”
Instead, the AIA A201, section 13.7, limits the time by which claims must be brought to 10 years or the applicable statute of limitations.
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Craig Martin, Lamson, Dugan and Murray, LLPMr. Martin may be contacted at
cmartin@ldmlaw.com
OIRA Best Practices for Administrative Enforcement and Adjudicative Actions
November 23, 2020 —
Anthony B. Cavender - Gravel2GavelOn March 2, 2020, the Environmental Protection Agency revised its “On-Site Civil Inspection Procedures” in accordance with Executive Order 13892 . (The rules are located at 40 CFR Part 31.) These rules set forth the components of an appropriate inspection procedure. Briefly, the rules require that, after the inspector’s credential are made available, the object of the inspection will be discussed (and most inspections will be held during regular working hours), consent to enter must be obtained, there should be an opening and a closing conference with facility representatives, safety protocols must be observed, confidential business information must be protected, and there will be an opportunity for split sampling. Once the report is completed, it will be shared with the facility.
A few months later, on August 31, 2020, the Office of Management and Budget’s Office of Information and Regulatory Affairs (OIRA) circulated a memo to the heads of all federal agencies to implement the principles of fairness in administrative enforcement and adjudication. This directive implements Executive Order 13924, and includes a comprehensive list of “best practices” that should be employed in their administrative enforcement and adjudicative actions. Briefly, these best practices (which are framed in broad terms) are:
1. The government has the burden of proving a violation of the rules or other authorities;
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Anthony B. Cavender, PillsburyMr. Cavender may be contacted at
anthony.cavender@pillsburylaw.com
City Development with Interactive 3D Models
October 23, 2018 —
Aarni Heiskanen - AEC BusinessThe Finnish city of Hyvinkää has developed a unique internet service for collaborative 3D city planning. It gives real estate owners, investors, developers, designers, authorities, and citizens easy-to-use tools to publish their 3D plans and ideas for the built city environment.
Participants can comment on the 3D plans directly in the city model. The 3D app is integrated with Facebook, which enables further conversation.
Building the 3D City Model
Päivi Tiihonen is the manager of the information services unit of the city’s technical and environmental sector. The city started building a browser-based 3D city model when Tiihonen assumed her position in 2014.
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Aarni Heiskanen, AEC BusinessMr. Heiskanen may be contacted at
aec-business@aepartners.fi
Challenging Enforceability of Liquidated Damages (In Federal Construction Context)
March 11, 2024 —
David Adelstein - Florida Construction Legal UpdatesA recent summary judgment opinion from the Armed Services Board of Contract Appeals (ASBCA), Appeals Of – BCI Construction USA, Inc.,ASBCA No. 6257, 2024 WL 773324 (2024), contains a worthy discussion regarding a contractor’s challenge to the government’s assessment of liquidated damages, specifically the enforceability of the liquidated damages rate. Although this challenge is in the federal context, this discussion would be more expansive and apply outside of the federal context.
When dealing with the enforceability of a liquidated damages, the ASBCA “examines whether the liquidated damages amount ‘is extravagant, or disproportionate to the amount of property loss, as to show that compensation was not the object aimed at or as to imply fraud, mistake, circumvention or oppression.” Appeals of – BCI Construction USA, Inc. (citation omitted).
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Retired Judge Claims Asbestos in Courthouse gave him Cancer
November 05, 2014 —
Beverley BevenFlorez-CDJ STAFFAmos Saunders, retired Passaic County, New Jersey, Superior Court judge claimed "he got cancer as a result of coming into contact with asbestos at the courthouse during his time on the bench," the New Jersey Law Journal reported.
Saunders alleged "that he was exposed to asbestos throughout his tenure, up to and including an asbestos removal project at the Paterson, N.J., courthouse in the 1980s." The complaint filed, as quoted in the New Jersey Law Journal, stated that "he has been diagnosed with adenocarcinoma 'as a direct and proximate result' of 'inhalation and ingestion of dust particles and fibers' from asbestos products."
According to the complaint, A. H. Environment Inc. was the contractor and Alaimo Group was the consulting engineer.
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