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Where a design-builder filed suit against the project owner (animal fee manufacturing plant) to collect the balance of fee that was being withheld, the owner countersued for almost $2 million alleging that contractor breached the contract’s requirements for concrete strength and placement of rebar in the concrete.  An expert witness testified for the owner that based on ground penetration surveys done on a number of walls within the plant finding horizontal reinforcement with highly varying concrete covers and spacing (and testimony form employees concerning how they installed the rebar), it was his opinion that the bin walls of the plant were weakened to such an extent that 4,440 square feet of bin wall should be torn out and replaced.  The design-builder filed a motion to have the testimony excluded based on failure of the expert to survey every wall that was recommended for replacement instead of just a sample of walls.  Objection was also made to the fact that the expert did not present his opinion “with absolute certainly.”  In denying the motion, the court found although only a small segment of walls was tested, the expert’s results were uniform and consistent, and they confirm eyewitness evidence that the contractor ignored its contractual obligations when placing the rebar.  The court, therefore, concluded that the expert’s opinion was amply supported and not merely “unsupported speculation” as argued by the contractor.  Younglove Construction, Inc. v. PSD Development, LLC, 2011 WL 1004916 (N.D. Ohio, 2011).

Comment:  This case is instructive with regard to the use of expert testimony and the question of whether sampling or surveying is sufficient to justify an expert opinion concerning areas that were not part of the surveyed areas.  On the underlying issue of non-compliance with the rebar placement specifications, the decision does not dwell at any length.  Since this was a design-build project, however, it seems likely that the rebar specification was drafted by the design-builder (or an engineer working as a subcontractor to the design-builder).  If that is so, the owner is alleging here that the design-builder was in breach of contract for failing to follow its own plans and speculations.   It is important to note that just because the design-builder is the creator of the plans and specifications does not mean that it can later ignore them.  Once plans and specifications have been approved by the project owner, the design-builder contractually commits to designing and building the facility consistent with the approved plans and specifications.  To do otherwise, without adverse consequences, would require a contract modification or change order approving the changes or deviations to the plans and specifications.    Likewise, if the owner provides bridging documents containing partial design documents, the design details contained in those bridging documents must be met unless a change has been agreed to in writing.  A good example of a contractor having to rip out and replace work that did not meet the design details of the bridging documents is found in the case of Dillingham Construction v. U.S., 33 Fed.Cl. 495 (1995).

About the author: Article written by J. Kent Holland, Jr.,  a construction lawyer located in Tysons Corner, Virginia,  with a national practice (formerly with Wickwire Gavin, P.C. and now with Construction Risk Counsel, PLLC) representing design professionals, contractors and project owners.  He is founder and president of a consulting firm, ConstructionRisk, LLC, providing consulting services to owners, design professionals, contractors and attorneys on construction projects.  He is publisher of ConstructionRisk.com Report and may be reached at Kent@ConstructionRisk.com or by calling 703-623-1932.  This article is published in ConstructionRisk.com Report, Vol. 14, No.1 (Jan 2012).

Copyright 2012, ConstructionRisk.com, LLC