Inside this Issue
- A1 - Expert Testimony Required for Suits against Design Firms
- A2 - City is Third Party Beneficiary of Design Subcontract Despite Contract Wording Stating no Third-Party Beneficiaries
Article 1
Expert Testimony Required for Suits against Design Firms
See similar articles: breach contract | Expert Testimony | Expert Witness | Negligence
Project owner (RTI) hired an architect, an engineer and various contractors to construct a clinical research facility for animal health research trials. After completion, the Owner encountered numerous problems with the facility and filed suit against the designers and contractors. It alleged the designers as well as the ceiling installer performed negligently and breached their contracts. Summary judgment was granted by the trial court and affirmed on appeal, based on the Owner’s failure to produce a qualified expert witness. RTI International Metals, Inc. v Pro Engineering, Inc., 2025 South Dakota 64 (2025).
Problems that were claimed by RTI were several. It claimed it learned that if it adjusted the air pressure in individual rooms, the entire system would have to be rebalanced, which would take two to three days each time an adjustment was made. To address this issue, RTI determined that the Facility required pressurization monitors or sensors, which were not originally recommended. The pressurization monitors were subsequently installed. However, RTI then noticed that when the air pressure of individual rooms was adjusted, the suspended ceiling would move up and down, which allegedly caused wires to snap and a portion of the ceiling in some of the testing rooms to collapse.
During initial operation of the Facility, it was discovered that there was a contamination problem in the Facility. It was then determined that the air was flowing in the wrong direction—backwards from the dirty air room into the clean room because the HVAC contractor wired the primary controllers of the HVAC system backwards.
RTI hired Architect to provide architectural and design services. In its suit, it alleged that the Architect recommended a suspended vinyl ceiling for the Facility, but that it failed to determine, in consultation with the Engineer, the ceiling specifications required to withstand the changes in air pressure or to recommend ceiling products in compliance with those requirements. RTI alleged that the suspended ceiling moved up and down due to the air pressure changes, which eventually caused the ceiling to collapse, necessitating replacement of the suspended ceiling with a hard ceiling in several of the animal testing rooms.
RTI’s CEO testified that the Engineer’s “engineering design and specifications for setting of the system did not achieve RTI’srequested system need for airflow direction and ability to adjust pressure within rooms as needed.” In particular, RTI alleged:
“The system did not tie in the clean corridor to the animal rooms and dirty corridor for the ability to maintain and/or change air pressure. Engineer’s plans did not give proper specifications for the equipment needed to precisely adjust.
Clean hallway system was not filtered nor was volume regulation. Improper instructions were given as to how the system was to be balanced. No allowance for changing of office and shower area pressures.”
The CEO further testified that Engineer’s plan was inadequate for RTI’s purposes because it could not easily switch the airflow set up. The CEO claimed that the engineer never informed RTI that air pressure changes would affect the suspended ceiling. RTI claims the engineer assured it that it would be able to change the airflow in one room and not another, but didn’t inform RTI that it would have to rebalance the system each time the airflow was changed.
RTI also sued the ceiling tile installer that had been hired to install a suspended ceiling. Although the Architect had recommended a vinyl-type ceiling, the ceiling tile company recommended an all-aluminum suspended ceiling, either with or without a gasket. RTI selected the all-aluminum with gasket ceiling recommended by the ceiling tile company, which later installed the ceiling. RTI claimed that due to the improper design and installation, the air-flow system did not operate as intended under the contract.
NOTE: This article will only address the court’s decision concerning the three firms mentioned above argued that RTI’s claims were grounded in the professional duty owed by these entities respectively, as the engineer for the HVAC system and the architect for the project. The defendants argued that expert testimony was necessary to establish the standard of care for the design and installation work completed on the project.
In response, RTI maintained that an expert was not required because the issues were not beyond a layperson’s comprehension and that if an expert were necessary, its CEO was qualified to offer testimony on those issues.
The circuit court issued a written memorandum decision, granting summary judgment to all defendants, but addressing each defendant’s motion for summary judgment in turn. As to Architect, the circuit court stated:
“RTI makes claims against [the Architect”] for breach of contract which is essentially aprofessional negligence claim and breach of implied warranty.” The circuit court noted that while [the Architect”] identified an expert to testify that “[the Architect”] complied with the professional standard of care,” RTI offered only [the CEO’s], whom the circuit court found was not qualified to offer expert testimony on the “proper standard of care” for an architect.”
The court also concluded that RTI’s lack of expert testimony was fatal to RTI’s claims against Pro Engineering, stating, “this type of professional negligence claim requires expert testimony to establish what the standard of care is, how the defendant’s design breached the standard of care and how the breach also caused the damages that resulted.” It reiterated that the CEOwas “not qualified as an expert to provide this testimony as required by the law.” The court applied this same reasoning to the other firms motions for summary judgment.
On appeal, RTI didn’t take issue with the circuit court’s characterization of its causes of action as sounding in negligence, but instead, argued that expert testimony was not required, and if it was, its CEO was qualified to provide the expert support for its claims.
Expert testimony is not necessary when the claimed breach is centered on the “terms of the contract and the manner of performance, as a matter within the realm of common knowledge. A combination of lay and expert testimony may suffice to prove a breach of contract in relation to a standard of workmanlike performance, but expert testimony may be necessary when the breach goes to the technical sufficiency” of the work. (footnotes omitted).
The appellate court concluded that expert testimony was needed in this case both as to the negligence allegations as well as to the breach of contract claims because the subject matter of the allegations did not fall “within the common experience and capabilityof a lay person to judge.”
The trial court explained that the breach of contract claims against the architect required expert testimony to establish the breach. It cited case precedent stating:
“[A]n architect is a “professional,” and we are of the opinion that expert testimony was needed in order to show whether the defects here should have been obvious to the Architect during the weekly inspections. Just as in cases dealing with an alleged breach of a duty by an attorney, a doctor, or any other professional, unless the breach is so obvious that any reasonable person would see it, then expert testimony is necessary in order to establish the alleged breach. The nature and extent of the duty of an architectwho agrees to conduct the inspection called for by the subject agreement are not matters of common knowledge. . . .”
“In this case, RTI alleged the Architect failed to determine the ceiling specifications required to withstand the changes in air pressure or to recommend ceiling products in compliance with those requirements. RTI alleges the suspended ceiling the Architect recommended moved up and down due to the air pressure changes, which eventually caused the ceiling to collapse, necessitating replacement of the suspended ceiling with a hard ceiling in several of the animal testing rooms. These claims are beyond the common experience and/or capability of average laypersons, who wouldlack the necessary knowledge regarding the proper design of such a Facility with unique requirements. Further, an average layperson would lack the requisite knowledge to understand how or why the air pressure changed in the Facility, the choice of ceiling materials selected for the Facility, or how the existing ceiling might be impacted by airpressure changes. We, therefore, conclude that expert testimony was necessary to establish that the Architect breached its obligations to RTI and that any breach caused damage to RTI. Without the requisite expert testimony, RTI cannot establish the elements of its claims against the Architect and the court properly granted summaryjudgment in favor of the Architect.”
Likewise, the court found the claims against the Engineer were highly technical as they center on the ability to control the airflow direction and adjust the air pressure as needed within the rooms of the Facility. Average laypersons, said the court, would not be knowledgeable regarding the type of equipment necessary to adjust pressure and airflow. Nor would they necessarily know what “volume regulation” means or why it is significant to the alleged negligence and issues with the Facility.
“Without expert testimony to establish that the Engineer “failed to provide ventilation, movement of air, reverse flow, balancing system, [and] pressurizing,” RTI cannot establish its claims against the Engineer.”
With regard to the claims against the ceiling tile installer the court concluded that most laypersons may lack adequate knowledge regarding construction deficiencies in general, the activities for which this Facility was designed are unique, requiring a particular type of ceiling. An average layperson would not have the requisite knowledge or experience to determine whether a particular ceiling was installed correctly, or what caused or contributed.
Having concluded that expert testimony was required to pursue the claims against each of the above firms the court next considered whether the plaintiff’s CEO was qualified to be an expert that could provide such testimony. The court concluded he was not qualified. As explained by the court:
“The standard of review for a trial court’s qualification of an expert witness is abuse ofdiscretion.” People ex rel. O.S., 2005 S.D. 86, ¶ 7, 701 N.W.2d 421, 424 (citation omitted).We have explained that to be qualified as an expert witness, one must have “specialknowledge, skill, experience or training” in order “to perceive, know or understand the matter concerning which the witness is to testify.” Id. (citation omitted).
The circuit court concluded: “While [the CEO] may have experience with testimony regarding animal building ventilation, this does not qualify him to be an expert regarding the appropriate ceiling that should have been designed for this project. He is not an architect and cannot provide testimony on the proper standard of care for this case.”
Concluding its lengthy appellate decision the court stated:
“[The CEO] testified repeatedly that he did not have the expertise to testify about many of the technical aspects underlying RTI’s claims against the other defendants…. He also testified he is not an engineer, HVAC installer, or supplier and that he has no engineering or actual installation experience. He acknowledged that what the “HVAC system was capable of with the sensors and without the sensors” was beyond his expertise. [The CEO] also admitted that he is not a design engineer and that he lacked expertise regarding whose responsibility it was to know or determine the correct material that should have been used for the ceilings in the Facility. As to the ceiling issues, [The CEO] testified a ceiling engineering expert was required, but that RTI had not retained an expert of that nature to inspect and opine as to what caused the wires to snap or come loose. He believed, however, it “was fairly obvious what was causing it.”
The court concluded that “The testimony by the CEO reflected a lack of technical knowledge about the requirements of the design and engineering components of several aspects of the Facility. As such, he could not competently testify about the defendants’ particular acts or omissions on which RTI bases its breach of contract and breach of implied warranty claims…. “When expert testimony is required, the failure to produce expert opinions is fatal to a litigant’s case.”
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 ConstructionRisk 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 Report and may be reached at Kent@ConstructionRisk.com or by calling 703-623-1932. This article is published in ConstructionRisk Report, Vol. 28, No. 4 (May 2026).
Copyright 2026, ConstructionRisk, LLC
Article 2
City is Third Party Beneficiary of Design Subcontract Despite Contract Wording Stating no Third-Party Beneficiaries
See similar articles: no Third-Party Beneficiaries | Third party beneficiary
A City filed a lawsuit against the prime design firm (BKI”) that created the hydraulic model for a sewer System. The suit alleged the contractor breached its contract and committed gross negligence because the hydraulic model was defective. The city also sued an engineering subcontractor (Black & Veatch”). That subcontractor filed a motion to dismiss the action – arguing that no contractual relationship existed between it and the city. The trial granted the motion, but that was reversed on appeal, with the appellate court holding that despite wording in the subcontract stating there were no third-party beneficiaries, “the subcontract was clearly intended to benefit the owner of the project, the City.”
The court agreed with the City's assertions that “the subcontract between [the Prime] and [the Sub] is specifically designed for [the Sub] to perform a subset of the project, as defined in the prime agreement between the City and [Prime]; therefore, the City is a third-party beneficiary of the subcontract.” City of Shreveport v. CDM Smith Inc., Court of Appeal of Louisiana, Second Circuit, No. 56,567-CA, 2025 La. App. LEXIS 2217 *; 2025 LX 529543; 56,567 (La.App.2 Cir. 11/19/25).
The operative provision of the subcontract between BKI and B&V, § 6.7.3, states:
“6.7.3. Nothing under this Agreement shall be construed to give any rights or benefits in this Agreement to anyone other than ENGINEER and CONSULTANT and all duties and responsibilities undertaken pursuant to this Agreement will be for the sole benefit of ENGINEER and CONSULTANT and not for the benefit of any other party.”
This was intended by the parties to reflect the intention that there would be no third party beneficiaries of the agreement.
In its lawsuit, the City alleged that the Prime and Sub breached their contract with the City because their subcontract contained and constituted a stipulation pour autrui in favor of the city. In other words, their subcontract contained and constituted an agreement that established a benefit for a third party — in this case, the City.
In its motion to dismiss, the Sub filed what is called an exception of no right of action, claiming that the City had no contract with the Sub and thus no right to bring a breach of contract claim against it. It argued that a stipulation for a third party's benefit must make that intention manifestly clear, and that the agreement in this case explicitly states that “all obligations and benefits are not "for the benefit of any other party."
The City argued that the nature of the subcontract between the Prime and its Sub shows that it was intended to benefit the City, and that it contains a stipulation pour autrui. The City argues that the agreement stipulates a benefit for the City.
In analyzing the facts and the arguments, the court stated:
“To determine whether contracting parties have provided a benefit for a third person the court should consider whether: (1) the stipulation for a third party is manifestly clear, (2) there is certainty as to the benefit provided to the third party, and (3) the benefit is not a mere incident of the contract.”
“The most basic requirement of a stipulation pour autrui is that the contract manifest a clear intent to benefit the third party; absent such a clear manifestation, a party claiming to be a third party beneficiary cannot meet his burden of proof. We find that the subcontract between [Prime] and [Sub] stipulates a benefit for the City, as it is specifically geared toward services that will benefit the City. The record shows that the subcontract in question references the "prime agreement" between the City and [Prime] numerous times and also mentions "the project" (the sewage system) numerous times. Specifically, the subcontract provides that [Sub] was furnished a copy of the City's plans for the project, and would continue to receive drawings, specifications, schedules, and other materials that would be pertinent to [Sub] to provide its services under the subcontract. The record shows that the subcontract acknowledges that [Prime]’s ability to timely perform the project for the City under the prime agreement is dependent upon the timely performance of [Sub] 's services pursuant to the subcontract. Additionally, the subcontract conditions payment to [Sub] on payment by the City to [Prime]. The subcontract also provides that it will terminate automatically upon termination of the prime agreement.”
Considering these facts, the court concluded that a stipulation pour atrui exists in this case. The court stated:
“As detailed above, the record shows that the subcontract between [Prime] and [Sub] clearly manifests an intention to benefit the City. With numerous references to the City's prime agreement with [Prime], and provisions in the subcontract that relate to the performance of obligations in furtherance of that prime agreement, [Sub]’s subcontract with [Prime] clearly confers a benefit on the City. Further, the second Joseph factor requires certainty as to the benefit to accrue to the beneficiary. Here, we find that the subcontract referred specifically to the project, which was the hydraulic model for the City. Finally, the third factor provides that the benefit is not a mere incident of the contract between [Sub] and [Prime]. There is no question that [Sub] was performing work on the project that benefited the City.”
For these reasons, the court concluded that the City was a third-party beneficiary of the subcontract.
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 ConstructionRisk 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 Report and may be reached at Kent@ConstructionRisk.com or by calling 703-623-1932. This article is published in ConstructionRisk Report, Vol. 28, No. 4 (May 2026).
Copyright 2026, ConstructionRisk, LLC
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