Consider two typical scenarios in construction defect litigation:
Scenario A: In a 35-home construction defect lawsuit arising from a large project in Sacramento, plaintiffs’ expert picks six windows at six separate homes for spray testing. Our insured is the stucco subcontractor. Our expert attends plaintiffs’ testing. Our expert reports that none of the windows selected for testing showed any evidence of water leakage in the past. There are no stains on the window sills or on the drywall below the windows. When the plaintiffs’ expert removes the drywall below the windows, there are no stains on the framing. The plaintiffs’ expert runs the spray test. At two of the six homes, water from the spray rack enters into at least one of the stud cavities below the window. Plaintiffs’ expert uses this result to claim that 1/3rd of the windows at the litigated homes will require repair, due to the 1/3rd “failure rate” observed during investigative testing.
Scenario B: In a 40-home construction defect lawsuit arising from a large project in Fresno, plaintiffs’ expert picks ten windows at ten separate homes for spray testing. Our insured is the stucco subcontractor. Our expert attends plaintiffs’ testing. Our expert reports that none of the windows selected for testing showed any evidence of water leakage in the past. There are no stains on the window sills or on the drywall below the windows. When the plaintiffs’ expert removes the drywall below the windows, there are no stains on the framing. The plaintiffs’ expert runs the spray test. None of the windows leak. However, at each window, plaintiffs’ expert sees unsealed staple penetrations through building paper. He also sees reverse laps of sill flashing paper at two of the windows. He uses these observations to claim that 100% of the windows at the litigated homes will require repair due to “defects in building paper installation” observed at 100% of the windows inspected.
In defending against either claim, you will of course argue that the absence of water stains on the drywall and framing below the windows means the windows do not leak in a real rainstorm and therefore do not require repair. This common sense argument may be bolstered by referring to ASTM (American Society for Testing & Materials) Standard E2128-12, “Evaluating Water Leakage at Building Walls.” This standard was first published in 2001 and most recently updated in 2012. It is a 36-page page technical manual which details how to carry out a window leak investigation. Of most immediate importance to construction defect practitioners, the standard states that investigative testing, such as the spray testing described in our two scenarios, should not be carried out absent evidence of prior leaks at the window to be tested. ASTM E2128-12 provides, at paragraph 22.214.171.124:
“The primary purpose of investigative testing is to recreate leaks that are known to occur. Investigative testing is not intended to demonstrate code compliance or compliance with project documents unless such deviations are actually related to the leakage problems.”
In our two scenarios, there is no evidence that prior leaks have occurred at any of the windows tested. Rather, the plaintiffs’ experts conducted blind experiments to see if they could make the windows leak or, at the very least, uncover technical violations of building code or project standards. ASTM E2128-12 states, however, that “investigative testing is not intended to demonstrate code compliance.” It should only be used to recreate leaks “that are known to occur.” Accordingly, in defending against plaintiffs’ claims in this case, we would argue that the investigative testing carried out by the plaintiffs’ expert violated ASTM E2128-12.
ASTM standards are considered the gold standard for building investigation. For instance, plaintiffs’ window experts typically testify at deposition that they conduct their window spray testing in “strict compliance” with ASTM Standard E1105, “Standard Test Method for Field Determination of Water Penetration of Installed Exterior Windows.” However, ASTM Standard E1105 merely explains how to conduct spray testing. It does not discuss when to conduct it. ASTM E2128-12 makes clear that spray testing should not be conducted absent evidence of prior leaks at the window to be tested. Accordingly, in both scenarios described above, defense counsel may wish to file a motion in limine to prevent the plaintiffs’ expert from testifying as to the results of his investigative testing on the grounds that the investigative testing violated ASTM E2128-12.
Copies of ASTM E2128-12 may be downloaded for $59 here.
Paul T. McBride is a Partner with Kring & Chung, LLP’s Sacramento, CA office. He can be contacted at (916) 266-9000 or firstname.lastname@example.org.