Posted on: 7/16/2012
Ewing E. Sikes, Royston Rayzor Vickery and Williams
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Dealing with design professionals in construction defect cases can be a daunting task for many attorneys. This is especially true of attorneys with no technical background and/or limited experience with construction defect cases. Further complicating the matter is the fact that many times, opposing counsel will attempt to conflate alleged design errors with alleged construction errors in an effort to spread blame. Likewise, design professionals who are witnesses or defendants in the case may attempt to minimize their role in an effort to lessen their potential liability. All of this, of course, can lead to jury confusion and, subsequently, larger verdicts against the contractors. As a result, this article focuses on dealing with design professionals, such as architects and engineers, from the perspective of a defense attorney representing a contractor.
1) Design Professionals Who Are Parties/Potential Parties to the Case
a. Design Team Versus the Construction Team
The first task of any attorney representing a contractor is to understand the role of the design professional and be able to explain it to a jury. In this regard, most commercial construction projects are awarded under a competitive bidding process. In this scenario, the owner hires an architect who puts together a “Design Team.” This Design Team is made up of various engineers who in turn specialize in different disciplines to design the building. These disciplines can include electrical, mechanical, structural, civil and geotechnical engineering. Thus, the owner will have one contract with the architect who, in turn, will have separate contracts with the various engineers. In some cases, the owner may hire one or more of the engineers separately but even then, the architect typically is expected to head up the “Design Team” as the owner’s representative.
Once the Design Team has been assembled and the design completed, the owner will then ask general contractors to submit competitive bids on the design. The general contractor will then submit bids using subcontractors who specialize in the various trades needed to complete the building. The owner then chooses the general contractor based on cost and qualifications. This selection results in a separate contract between the owner and the general contractor. The general contractor will then enter into subcontracts with the various subcontractors and head up the “Construction Team.”
Thus, under the competitively bid scenario, the owner has two separate contractual chains. One chain is with the Design Team and the second is with the Construction Team with no privity of contract between the two. However, both teams are expected to work together to complete the building. Indeed, the architect typically has contract administration duties that require approval of the general contractor’s pay applications. Likewise, the architect sometimes takes on additional construction monitoring services. Nevertheless, it is important to stress the difference between the two contractual chains as most design professionals will agree that design errors are properly attributable to the Design Team and not the Construction Team. However, by the time the building owner has brought a lawsuit, the problems and/or perceived problems with the building are severe enough that the owner does not care who is responsible, as long as the problems are addressed. Thus, sometimes the owner’s attorney may try to assign design errors to the Construction Team and construction errors to the Design Team.
In an effort to mitigate against this tactic, it helps to have each design professional explain in deposition his or her role to reinforce with the jury the fact that the construction is a collaborative effort and that the role of the design professional is very different from that of the contractor. This can be accomplished by having each design professional create a flow chart showing his/her connection to the building owner and having him/her define his or her role within the chain. Additionally, in an effort to limit their liability, many design professionals will agree that their role is confined to their specialty and that they are entitled to rely upon the expertise of the other design professionals. Once they agree to this proposition, they have to agree that the same logic applies to members of the Construction Team. In other words, if an architect is entitled to rely upon the expertise of a mechanical engineer, then the same holds true for members of the Construction Team.
Finally, these types of witnesses should be used to stress the owner’s obligations with respect to building maintenance and operations which, in turn, can be used to establish contributory negligence on the part of the owner where applicable.
b. Pin the Owner and Design Profession Down Early
It’s important to remember that many design professionals have eroding “claims made” insurance policies, which means that they may have limited insurance coverage, depending upon the amount of defense costs already incurred and other claims made on the policy. If so, this can result in these parties making an early exit from the case. Under this scenario, it may be difficult to secure testimony from these parties once they’ve settled or if they are a nonparty. Thus, you should consider adding them into the case if they are a nonparty and/or taking their deposition early if you determine that the design professional in question is needed or useful to your case. However, if you intend to bring a design professional into the case, keep in mind that some states have certificate of merit requirements that require that your complaint/petition be accompanied by an affidavit of a design professional in the same field, setting forth the alleged misconduct supporting the causes of action sued upon. Failure to file a certificate of merit can result in a dismissal of your claim.
Finally, you should send the owner a request for admissions, asking them to admit to design errors and complaints against culpable design professionals in question before these parties settle and the owner changes its theory of the case to focus solely on construction errors.
2) Dealing with Design Professionals Acting as Adverse Expert Witnesses
There are several ways to attack adverse design professionals acting as expert witnesses. First, it’s important to decide if you want to engage in a full frontal attack. Such an attack may make sense if you know that the expert wasn’t given all of the information and/or made a mistake by failing to consider a piece of evidence. Under such a scenario, you may be able to get the opposing expert to change his/her opinions without having to discredit the professional—thereby allowing you to use that witness to your advantage.
Alternatively, you may want to consider a more subtle attack by attacking the expert on a collateral matter, such as questioning his/her qualifications and/or methodologies in an effort to make a Daubert challenge and have the expert stricken. Such an attack may include getting the expert to acknowledge that he/she did not exclude all possible causes for the alleged damage in question. For example, many experts fail to delineate between damages associated with design errors versus damages associated with construction errors. Additionally, many design professionals hold themselves out as experts beyond their qualifications. In this regard, it is important to remember that simply being an architect or engineer does not qualify the expert to testify on matters associated with means and methods of construction, other issues of general contracting or invasive testing (i.e., water testing for leaks). Such subjects require additional expertise and each opposing expert should be examined in deposition for a possible Daubert challenge on these issues. You should consult with your own experts about what strategies work best for your case.
Further, most design professionals will acknowledge that the practice of their various disciplines are governed by state statutes and ethical rules within their respective states. These statutes and rules define the practice of architecture and engineering and also regulate who can engage in such activities. This is important because, as stated above, most design professionals when pressed on this issue will acknowledge that design deficiencies are the responsibility of the design team and not the construction team. However, many adverse expert witnesses refuse to delineate what percentage of the fault/damages are attributable to the Design Team versus those attributable to the Construction Team. In those situations, the expert’s opinions are subject to being stricken on a Daubert challenge as the expert is either unable or unwilling to tell the jury how to apportion damages fairly.
Additionally, many jurisdictions define the practice of architecture/engineering to include giving depositions and provide rules for engaging in such activity. For example, in Texas, the Engineering Practices Act and related rules require that an engineer shall be objective and truthful, which means that the issuance of any oral or written assertion in the practice of engineering shall not be fraudulent, deceitful or misleading. Moreover, such statements should not create a misleading impression in the issuance of oral and/or written assertions while engaged in the practice of engineering. See Texas Administrative Code (TAC) 22 TAC Section 137.57. Additionally, the engineering rules in Texas also require that “opinions which are rendered as expert testimony and contain quantitative values shall be supported by adequate modeling or analysis of the phenomena described.” See 22 TAC Section 137.59. Thus, design professionals are subject to being cross-examined and later challenged for failing to test and/or improper testing and for failing to consider other factors that could have caused the issues complained about.
Finally, you should also check with the expert’s state board to see if the expert in question has had any grievances filed against him or her and/or whether he or she has been the subject of any disciplinary action. Most of this information is available on the web or via a Freedom of Information Act request, directed to the board in question.
In conclusion, approach your case with the idea that the typical jury will not understand the intricacies of how a commercial building is made. Take the time to use each witness as a vehicle to explain the procedure in deposition since you never know who will actually be called to trial. Then decide early in the case what evidence you will likely need from the Design Team and formulate a plan to get it. Finally, talk with your own experts and formulate a strategy to attack the opposing experts with your strongest points. With these tips in mind, you’ll be well on your way to handling design professionals in your case.
Ewing E. "Eddie" Sikes is a senior partner with Royston, Rayzor, Vickery and Williams, LLP in the Rio Grande Valley office. He can be reached at Eddie.Sikes@Roystonlaw.com.