When an expert is called upon to provide testimony in a construction defect case involving water leakage, it’s often assumed that they’ve conducted their testing using ethical, scientifically-backed standards to recreate real-world conditions. That’s not always the case. Chris Matthews, President of GCI Consultants, provides his advice on how to hire and work with an expert to conduct credible and ethical water infiltration testing that will help you prove your case.
Nothing On The Building Envelope Is Infallible.
In order for your testing to be credible, it has to be realistic.
If something is designated fireproof, for example, and you hit it with a flamethrower long enough, it’s going to catch on fire. Bulletproof glass, when shot with enough rounds from a high-caliber firearm, will eventually be compromised.
Similarly, if you conduct water infiltration testing on a window to see if it will leak, and you blast it with a firehose, you’ll get it to leak.
This approach does little for you in litigation, says Matthews:
“Windows, for example, are designed and certified to a certain standard. From a practical and legal standpoint, making them leak by sheer force proves nothing. The key is re-creating the conditions that existed in the building on the day of the damage, and then conducting your testing in a controlled environment. It also involves taking into consideration the age and condition of the windows themselves.”
The Water Infiltration Testing Process
At GCI, we’ve been conducting water leakage investigative testing on windows, doors, roofs, and curtain walls for decades. We have a five-step proven process that we follow for all of our water leakage testing, including testing that will be presented as expert witness testimony.
1. Pre-Testing Discovery
Before we go on-site, we review all of the documentation about that building. This includes its original construction and repair history, maintenance records, before-and-after photographs and videos, and weather data from that day.
2. On-site Visual Investigation
After we’ve taken a look at the building’s history and understand that data, we do a visual investigation of the building damage. Here we’re looking for clues: wet drywall, holes, mold. We bring along the proper equipment such as moisture meters, borescopes, and other investigative tools to provide additional data on the water damage.
3. Protocol Development
Our next step is to develop an appropriate protocol based on our historical research and our on-site visual investigation. This is where we’ll decide which testing methodologies will replicate the problem in an ethical and accurate way.
4. On-site Water Infiltration Testing
After the discovery phase is complete, our experts will show up on-site to conduct the testing. We’ll sequentially isolate various components and likely remove finish materials to view inside cavities and trace the leakage paths back to the sources.
5. Analysis & Reporting
Finally, we develop a comprehensive report on our findings. This includes all of the relevant data needed to support your case.
Consider Your Building’s Age and Condition
Before the water leak event and damage event occurred, your building may have been showing signs of fatigue or compromise -and that’s important in the context of your testing and in your defect case.
As we mentioned earlier, you need to start with the understanding that your glazing system has been designed to withstand a designated amount of stress.
Matthews advises: “If your building is ten years old, there’s going to be degradation. It’s been exposed to a decade of UV light, weather, operational wear-and-tear, so that should be taken into account.”
Since almost all construction defect cases involve older structures, we’re likely investigating a building that has been around long enough for people to notice the early warning signs of a problem – like condensation on the windows or fogging. So it’s possible that the building went into a storm event with windows that were already somewhat compromised, but early warning signs of a problem had been ignored or left in disrepair.
“You need to be realistic about what your windows can withstand and what their condition was before the leakage event. Our job as experts is to form an opinion based on the data and part of that data is your building’s conditions prior to the event,” says Matthews.
Water Leakage Testing Red flags
Do not work with an expert who exhibits any of the following:
- Conducting testing that is based on original performance levels
- Testing that results in a hard pass/fail
- Testing that is not based on industry standards such as ASTM or AAMA
- Testing that was done with a “Just Make It Leak” mindset
- Testing that was done without consideration for the real-world weather data on the day(s) when the leak occurred including wind speed, wind direction, rainfall, and temperatures
According to Matthews, there are unethical or ill-informed so-called experts out there and you need to be prepared if you face them in court:
“It’s conceivable that if I’m representing a window manufacturer, for example, and the opposing team’s expert shows a video he shot of their product leaking, a jury is going to think: ‘Wow. We should give that building owner lots of money to make this right.’ However, it’s my job to help the jury understand that just because they saw my client’s product leaking in a video that doesn’t mean there is a problem with the window. A leak is not a straight line to liability.”
How To Use Water Infiltration Testing Results Successfully In Litigation
Matthews says that many people assume that water around the window opening means that the window itself leaked. That’s not always the case:
“There could be something structural going on that has nothing to do with the window leaking. Before you enter into litigation, it’s a good idea to understand and present your arguments completely.”
If you do have grounds for a construction defect lawsuit, you’ll need to work with your expert to understand the damage and its causes.
When defending against claims of contribution to water leakage, your expert needs to be experienced and knowledgeable enough to correct errors or incomplete/improper testing and analysis of causes of leakage provided by others.
“Our job to look at everything objectively and use data to provide an unbiased opinion, regardless of what side we are on – plaintiff or defendant,” says Matthews.
Finally, no matter which side of the case you find yourself on, make sure you hire an expert that you can trust and then get out of their way:
“Construction attorneys trust us because we have spent years investigating the building envelope and its individual components and how they impact each other. We’re well-versed in our testing methodologies, analysis, and conclusions and can explain them clearly and concisely to judges and juries who are not technical experts. That results in us being able to provide compelling, credible testimony about our reporting that has helped our clients to succeed on thousands of cases.”
Next Steps:
Qualifying a potential expert witness for a complex construction case can be a daunting task, download the Qualifying Questions To Ask Your Potential Expert Witness Checklist and use it to ensure that you’re selecting the right expert for your next case.
