LAWSUITS AND OTHER WASTES OF TIME

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The following is a work of fiction.

A while back, I helped defend a previous employer against a very frustrating lawsuit. This particular case pertained to an alleged construction defect. The owner claimed that the engineer and contractor had used reactive aggregate in the concrete, and that their concrete was failing. Let’s take a step back. What is concrete? Concrete is a mixture of cement, water and aggregate. There can be other components that either accelerate or retard curing or make it more plastic. There are several additives that can be used. They are added in small quantities to increase the durability of the concrete, to fix concrete behavior and to control setting or hardening. Concrete hardens through a chemical process called hydration. There is heat given off during the curing (not surprisingly referred to as the heat of hydration). The proportions of each component of a concrete mix is established through a test-batching procedure, where various “recipes” are prepared, allowed to cure and then subject to strength testing. Since the curing process can go on for quite a while, the strength testing is typically completed at various time periods, such as 7, 14, 21 days, etc. Normally, the concrete keeps hardening over time. With luck, some of the recipes result in the required strength within the required curing time. Back to the point. In the case of this lawsuit, the owner was alleging that reactive silicates had been used in the aggregate, and that there was a chemical reaction between the silicates and cement, known as alkali-silica reaction, or ASR. If it is bad enough, ASR for sure can ruin concrete. It essentially ruins concrete because it wants to cause expansion. The concrete is usually confined, so the expansion can cause excessive cracking. In this case, the engineer correctly had completed two tests to assess the potential for ASR to occur, and those tests had ruled out ASR. However, a petrographic (microscope) test of the aggregate had indicated that the aggregate did include potentially reactive silicates, and that testing company recommended that the aggregate be tested to assess its potential for ASR. Those tests had already been completed, so the engineer had approved the use of these aggregates on the concrete mix. In my very humble opinion, I do not think that the petrographer went far enough with their warning. Reflecting back on the specific results, there was a significant amount of amorphous (as opposed to crystalline) chert (a silicon dioxide, like quartz) in the sample. Amorphous chert is usually reactive in concrete, while crystalline chert is not reactive. I wish we lived in a world where the petrographer could just come straight out and say that he wouldn’t use this aggregate to gravel his driveway. It’s my opinion that the samples tested by the different labs were provided with samples that were not similar enough to each other, although one of the testing procedures has changed since those tests were completed.

At any rate, there really wasn’t much of the concrete that could serve its original purpose and for it’s intended life. It was a very frustrating process, all the way from deposition through mediation, and finally through arbitration. Mediation was so close that I wanted to take out my personal checkbook to fund the slight gap between the owner and the rest of us. Finally, we went to arbitration.

There were a lot of surprises along the way, but none less than a missed opportunity by the owner’s attorneys. In our proposal for the work (which was signed as being accepted, and became our contract), we discussed in good detail all of the work that we would be performing. Included in the proposal was the following statement:

[We] will ensure the Contractor’s compliance with the technical specifications.

Can we do that? No. We can’t even ensure that the contractor will get out of bed in the morning. What can we actually do? We can assess the contractor’s work using a combination of observations and field and laboratory tests. If the contractor is out of compliance, we can work with them to become in compliance.

So, what did the attorneys do with our bold statement? Nothing. They missed a golden opportunity to crucify us with our words. I had expected them to say something to the effect of, “These guys are so audacious that they would have you believe that their intent was to actually ensure that the contractor was following the design to the very letter. That, ladies and gentlemen is a promise to perform well beyond the state of practice, which is what they should have actually promised. Now they must be hanged by that promise”.

Engineers have lists of taboo words for this very reason.

It was a miracle that the high-priced attorneys didn’t barbeque us for our words. This is the reason that you are supposed to choose your words so carefully. By the way, in this particular case, it was found that none of the parties prevailed, which was another miracle. Nobody got their legal fees paid.

Oddly/sadly, when I’m preparing project documents, I often think of how I would defend myself against a group of attorneys, should something go wrong. Try to do yourself a favor, and document project work very well, and stay away from taboo words.

There were many other things in that project that did not go as well as they should have, and many more lessons to share, but for the time being, I will leave them unsaid.

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