Columbus Ohio Building Expert Directory

Application of Frye Test to Determine Admissibility of Expert

April 03, 2019 — David Adelstein - Florida Construction Legal Updates
Florida went back to the Frye test/standard, instead of the Daubert test utilized in federal court, to determine the admissibility of expert testimony. The Frye test is more favorable to plaintiffs because it applies when an expert renders an opinion based on new or novel scientific principles. See D.R. Horton, Inc. v. Heron’s Landing Condominium Ass’n of Jacksonville, Inc., 44 Fla.L.Weekly D109b (Fla. 1st DCA 2018) (“The supreme court has described the Frye test as one in which the results of mechanical or scientific testing are not admissible unless the testing has developed or improved to the point where the experts in the field widely share the view that the results are scientifically reliable as accurate. Stated differently, under Frye, the proponent of the evidence has the burden of establishing by a preponderance of the evidence with the general acceptance of the underlying scientific principles and methodology. However, as stated, the Frye standard only applies when an expert attempts to render an opinion that is based upon new or novel scientific principles.”). In D.R. Horton, Inc., a condominium association sued the developer and general contractor (same entity) for construction defects that included claims in negligence, violation of building code, and breach of statutory warranties. The developer/general contractor moved in limine / to strike the association’s experts under, at the time, a Daubert analysis, but which became a Frye analysis during the pendency of the appeal. The expert opined as to construction defects and damage and the appropriate repairs – really, no different than any construction defect dispute, from what it appeared. The trial court denied the motion and during trial the experts testified and a sizable damages judgment was entered against the developer/contractor prompting the appeal. One issue on appeal was the admissibility of the expert’s opinion. The appellate court noted that a Frye analysis is not necessary because the experts used a scientifically reliable and peer-reviewed methodology. Read the court decision
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Reprinted courtesy of David Adelstein, Kirwin Norris
Mr. Adelstein may be contacted at dma@kirwinnorris.com

Two Injured in Walkway Collapse of Detroit Apartment Complex

May 30, 2018 — Beverley BevenFlorez-CDJ STAFF
ABC WXYZ Local News reported that a balcony collapsed at the Anthoes Garden Apartments in Detroit, Michigan. Two people were witnessed falling from the upper walkway through the second and third floors, landing on the cement, sidewalk below. Neighbors pulled the thirty-something woman out of the debris, but the sixty-something man remained trapped under cement chunks and told the rescuers that he could not breathe. The neighbors used car jacks to raise the cement blocks to relieve pressure while waiting for help to arrive. Firefighters rescued residents from the apartments. The fire marshall condemned the building. However, according to ABC News, "people who live in apartments nearby are afraid to leave because of the walkway's instability." Read the court decision
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Top 10 Take-Aways from the 2024 Annual Forum Meeting in New Orleans

May 20, 2024 — Marissa L. Downs & Brendan Witry - Laurie & Brennan, LLP
Over 600 construction lawyers, experts, and consultants met in New Orleans last week for the Forum’s 2024 Annual Meeting where Program Coordinators Brenda Radmacher and Joseph Imperiale together with John Cook and Buck Beltzer put together an insightful program focused on all things construction litigation. Here are our 10 top take-aways from this unique program. 10. Don't underestimate the soft skills that are necessary to effectively represent your clients. There are different ways to measure success when it comes to construction litigation, according to Stephen Dale (WSP USA), Melissa Beutler Withy (Big-D), and Matthew Whipple (Wohlsen Construction). What these (and likely other inside counsel) will look for when retaining outside counsel is the ability to accurately forecast litigation expense and timely communicate case developments. Being able to master these "soft" skills is as important (if not more so) as an attorney's aptitude for trial advocacy. The in-house counsel who hire litigation counsel will be held accountable to deliver results on the investment they are making in legal fees. Outside counsel who cannot manage budgets or avoid surprises in the course of a case will not be successful as litigators. Reprinted courtesy of Marissa L. Downs, Laurie & Brennan, LLP and Brendan Witry, Laurie & Brennan, LLP Ms. Downs may be contacted at mdowns@lauriebrennan.com Mr. Witry may be contacted at bwitry@lauriebrennan.com Read the court decision
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Lewis Brisbois Ranks Among Top 25 Firms on NLJ’s 2021 Women in Law Scorecard

July 25, 2021 — Jana Lubert - Lewis Brisbois
Lewis Brisbois has been ranked among the top 25 law firms included in the National Law Journal's (NLJ) 2021 Women in Law Scorecard (Women’s Scorecard), moving up from 27th place to 23rd place this year. In addition, of the top 25 firms in the Women’s Scorecard, Lewis Brisbois had the highest number of female minority partners. The Women’s Scorecard is produced as part of the annual NLJ 500 firm head count report, and only the largest 350 firms are eligible to be included on the scorecard. A firm’s score is determined by adding the percentage of female attorneys and percentage of female partners. Diversity staffing counts were based on a firm’s average full-time attorneys in 2020, excluding contract and temporary attorneys. Read the court decision
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Reprinted courtesy of Jana Lubert, Lewis Brisbois
Ms. Lubert may be contacted at Jana.Lubert@lewisbrisbois.com

The Condominium Warranty Against Structural Defects in the District of Columbia

September 07, 2017 — Nicholas D. Cowie - Maryland Condo Construction Defect Law Blog
The District of Columbia Condominium Act contains a statutory warranty that protects condominium associations and their unit owner members from structural defects in newly constructed and newly converted condominiums. The warranty is backed by a condominium developer’s bond, letter of credit, or other form of security from which monies can be drawn upon if the developer fails to make warranty repairs. This article discusses how the warranty against structural defect works and how to make claims against the developer’s security to fund warranty repairs. THE CONDOMINIUM WARRANTY AGAINST STRUCTURAL DEFECTS Condominium developers in Washington DC are required by statute to warrant against structural defects in the condominium common elements and each condominium unit. District of Columbia Condominium Act (“DC Condo Act”) 42-1903.16(b). Read the court decision
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Reprinted courtesy of Nicholas D. Cowie, Cowie & Mott, P.A.
Mr. Cowie may be contacted at ndc@cowiemott.com

Arbitration: For Whom the Statute of Limitations Does Not Toll in Pennsylvania

June 03, 2019 — Gus Sara - The Subrogation Strategist
In Morse v. Fisher Asset Management, LLC, 2019 Pa. Super. 78, the Superior Court of Pennsylvania considered whether the plaintiff’s action was stayed when the trial court dismissed the plaintiff’s complaint after sustaining the defendants’ preliminary objections seeking enforcement of an arbitration clause in the contract at issue. The Superior Court—distinguishing between a defendant who files a motion to compel arbitration and a defendant who files preliminary objections based on an arbitration clause—held that, in the latter scenario, if the defendant’s preliminary objections are sustained, the statute of limitations is not tolled. This case establishes that, in Pennsylvania, plaintiffs seeking to defeat a challenge to a lawsuit based on a purported agreement to arbitrate need to pay close attention to the type of motion the defendant files to defeat the plaintiff’s lawsuit. In Morse, the plaintiff entered into a contract with Fisher Asset Management (Fisher) in 2008 for investment-advisor services. The contract included a provision stating that any dispute, claim or controversy arising out of the agreement between the parties shall be determined by arbitration. In June 2009, the plaintiff filed a complaint against Fisher and two of its employees in the Court of Common Pleas of Allegheny County, alleging breach of fiduciary duty, breach of contract, negligence, and other claims. The defendants filed preliminary objections to the complaint seeking dismissal on grounds that the contract between the plaintiff and Fisher required that the dispute be determined by arbitration. The court sustained the preliminary objections and dismissed the complaint. The plaintiff did not appeal the court’s ruling. Read the court decision
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Reprinted courtesy of Gus Sara, White and Williams
Mr. Sara may be contacted at sarag@whiteandwilliams.com

Is a Text a Writing?

June 10, 2024 — Michael Yelle - Ahlers Cressman & Sleight PLLC
Is a text message a writing? Project communication is constantly evolving, and text messages are an increasingly common way teams share pictures, video, and provide project updates. When texting is part of the communication flow on a project, contractors and owners might text approvals for extra work, notices of changed conditions, or other information that could be a basis for a change order. In a text exchange about a compensable event, the notice, reply, and approval are all saved on the phone. But contracts often contain specific requirements for a contractor or subcontractor to request changes and authorization to proceed may be specifically required in writing. For example, the Associated General Contractors of Washington – 2018 Standard Subcontract says the “Subcontractor shall make no claims for extras unless the same shall be agreed upon in writing by Contractor prior to performance of any such extra work.” (emphasis added). The AGC subcontract doesn’t define “writing,” so the subcontractor and contractor might wonder if a text message exchange about a potentially compensable event was an “agreement in writing.” Read the court decision
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Reprinted courtesy of Michael Yelle, Ahlers Cressman & Sleight PLLC
Mr. Yelle may be contacted at michael.yelle@acslawyers.com

Colorado Senate Bill 13-052 Dies in Committee

May 10, 2013 — David M. McLain
On April 17, 2013, the Colorado Senate Judiciary Committee voted, along party lines, to postpone indefinitely SB 52. Here is a link to the Denver Business Journal's story regarding the bill and its untimely demise: "Lawmakers kill lawsuit limits on condo defects." Unfortunately, it will be at least another year before the legislature will have the ability to provide some much needed relief to the Colorado construction industry. Read the court decision
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Reprinted courtesy of David M. McLain
Mr. McLain can be contacted at mclain@hhmrlaw.com

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