Case Studies

In complex construction litigation, no two cases are alike. Derek has the knack for efficiently clarifying his assignments according to industry criteria, and presenting his findings in concise, succinct reports, and eloquent testimony that discourages cross-examination and refutation. To his credit, most of his cases settle without trial, and typically without a refuting expert to contest his compelling reports.
Derek draws from his background in literature and critical writing to compose his expert reports. He invests each report with thorough and convincing evidence and objective opinions. His reports are a great source of pride and quality to him. Toward that end, he develops each with an imperative toward perfection that is unique in the industry.
Being a team player, Derek finds a natural tendency to take the lead, or captain the various cases assigned to him. This is especially helpful to attorneys who do not specialize, or have limited experience in contesting complex technical construction disputes. Indeed, many attorneys take copious meeting notes from Derek’s presentations that often turn up in their own argument documentation.

Delay Case Study

A few years ago, I provided expert witness construction project delay services at arbitration for a case involving a pair of New York pre-war building co-op Boards v. a contractor who significantly delayed an underpinning project, in Tudor City, NY. The project was tricky, in that it involved drilling 3” bores, for tie-back rods, through a retaining wall and foundation of a nine-story building, with only six-and-a-half-feet working room clearance between an adjoining building and itself.

The trouble was that the drilling of the tie-backs took months longer than anticipated. I asked for the contractor’s schedules and updates, which were generated by a spreadsheet. These schedules did not use the critical path method (CPM), and were not proper ‘modern’ GANTT charts – though they could have been in 1910, when the first GANTT was developed from a spreadsheet. At best, a spreadsheet may be based on, or represent, a bona fide GANTT chart, but never a CPM schedule in and of itself.

Because the contractor’s schedules were never base-lined, or nailed down; not subject to being changed – his updates were merely tracking past progress, and forecasting what might be ahead. Though it was elementary to compare his schedules, this didn’t explain what took him so long.  If the delay was not due entirely to design changes (resequencing by engineer), or weather days, then it could only be that his resources or equipment were under-represented. He manned the job as well he could in the narrow alley; however, he switched equipment: as a courtesy submittal, the engineer had asked for an equipment submittal, prior to the work starting.

The submitted equipment was a truck-mounted mobile drilling rig that needed approximate fourteen-foot working clearance. In lieu of that equipment, the contractor opted to use a few light-use bolt-down rigs, of the type electricians or plumbers might bore through concrete slabs. It was a puny 25 amp drill that locked up in the rock, and continually burned and shredded bits. It had a maximum capacity rate (feet-per-minute, or FPM) that was a fraction of the rig the contractor said he would use to achieve the promised rate of production. The contractor could not satisfactorily indicate why he never notified the engineer of the change, or got a bigger rig that would fit in the alley. By the measure of the equipment production rates, it was now elementary to understand the cause of delay, and rebut the claim.

Defect Case Study

An elderly couple had purchased from a developer a “luxury” condominium near New York’s Lincoln Center. However, upon taking possession, they soon noticed myriad defects – gaps in wood trim joints, gaps in wood flooring, protruding screw heads, et al., which they brought to the developer’s attention several times, without incident. They sought a construction defects expert NY, at which point I was asked for help.

Subsequently, I inspected the premises, which were purported as luxury, or high-end living. Defects were epidemic, and poor workmanship was apparent everywhere. Even the design plans were minimal, and thoughtless. I conducted my inspection, and drafted my defects report – which was voluminous for this project, and it was issued to the developer. Twice, the developer sent in a few men with nail-sets and paint brushes for a couple of hours to repair the defective works, and each time failed to remediate the conditions. The developer finally gave up – saying he could not make the buyers happy – as if to say the defects were their fault.

It soon became apparent that

a) either the developer didn’t have the resources to make good on the work, or

b) he no longer cared about the sale. Given that position, the couple used the leverage of my report and cost-to-cure estimate, to receive a substantial rebate, without litigation, which they put toward the restoration of their new apartment. They are happily enjoying their apartment to this day, thanks to their construction expert, who prepared irrefutable and bulletproof field reports and cost estimates.

Product Defect Case Study

In 2017, I was retained as a building product defect expert to provide an expert report on a defective ADA shower seat in a well known hotel. The seat caused injury to a guest when she attempted to lower the seat from a vertical stowed position to a cantilevered seat, while in the shower stall. The seat hinge had no resistance, allowing it to free fall and strike a knee of the guest.

Because I had installed similar seats, and presided over many installations, I had expertise in the subject in question – the proper installation, working order, and maintenance of the equipment. I knew from experience, that the seat – which weighed between 15 and 20 pounds – could not have been intended to free fall in the way described.

I conducted a site inspection in which I observed the seat free-fall from the stowed position without any resistance to slow its travel. There were bolts that controlled the tension by means of compressing a gasket, but the heads were stripped from over tightening, and inoperable.  

Because the seat was discontinued, I was, at first, unable to find documentation on it. My research on the internet turned up a similar unit on EBay that came from a fixture warehouse that had burned, and sold off the contents. I purchased this seat, and brought it to my laboratory workshop.

The seat was shipped pre-tensioned, and it was clear this was the intended operation. I painstakingly disassembled and reassembled the seas, photographing each step, and finally mounted it on plywood for exhibit. Although I was called to testify, opposing carefully avoided any discussion on my findings; however, my testimony was enough to induce a quick settlement for the plaintiff I represented.

Standard of Care Case Study

A husband and wife wished to build a stunning beach house with all the amenities. The design was completely bespoke, custom, and called for exotic materials in a luxurious setting.  The couple retained a local – but prominent – architect to design the house. However; after some two years, they still found themselves without construction drawings, and no engineering drawings whatsoever. The architect far exceeded his budget without informing the clients, despite never capturing their design intent.

Finally, the couple lost faith in the architect, and sought to discharge him, but not without a sizable refund. The architect countered with trumped up billing statements showing volumes of drafting hours.

The attorneys retained me to prepare an expert opinion as to the standard of care of the architect, and how the level of surface was sub-par to the point where he was in breach of contract.

My years in the field as a mechanic and project manager gave me advanced knowledge of constructible drawings, but even moreso my years as an estimator, in which I had reviewed tens of thousands of drawings – far more than any architect. I reviewed copious versions of sketches, renderings, and endless permutations of scribbled designs, all of which amounted to no constructible drawings.

An arbitrator held a conference in which I presented my findings that the architect unilaterally overcharged, despite not following instructions, and rendered nothing close to a finished product, despite a two year sequester. Opposing were clearly uncomfortable with my testimony, such that they elected not to pursue further defense. A sizable settlement was made to the clients that day, by the architect.

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