Building Code Expert Witness’s Inspection Questioned Over Building Code Rules

A condominium association filed a lawsuit against its insurance company for property damages sustained during a hurricane. The defendant retained a building code expert witness to opine on the degree of the hurricane damage.

Zach Barreto

Written by
— Updated on November 3, 2021

Building Code Expert Witness’s Inspection Questioned Over Building Code Rules

Court: United States District Court for the Southern District of Florida, Miami Division
Jurisdiction: Federal
Case Name: Royale Green Condo Ass’n v. Aspen Specialty Ins. Co
Citation: 2008 U.S. Dist. LEXIS 48334

The plaintiff complained about the expert’s inability to conduct testing in compliance with specific building code rules. The court noted that this affected the weight of the expert report, not the expert testimony admissibility.

Facts

The plaintiff, a condominium association, sued the defendant insurance company to claim damages sustained to its property from a hurricane. Then, the plaintiff brought a motion to exclude the evidence of the defendant’s expert witness. The plaintiff alleged the assessment of the severity of harm to property sustained by the plaintiff was unreliable and irrelevant. Therefore, the plaintiff claimed the probative interest of the defendant’s report was considerably greater than the danger of undue prejudice.

The Defendant’s Building Code Expert Witness

The plaintiff sought to dispute the effectiveness of the defendant’s expert visual inspection system in general. However, the plaintiff’s primary complaint was the defendant’s expert’s inability to conduct both uplift resistance and moisture level checks in compliance with the Florida Building Code rules.

The defendant argued that the building code expert opinion was relevant. According to the defendant, the expert’s opinion helped determine the degree of damage to properties caused by Hurricane Wilma. The expert compared the damage to damage incurred by prior hurricanes, such as Hurricane Andrew. The defendant argued that the decision was reliable. The inspection methodology used by the defendant’s building code expert witness was reasonably reliable to make the exclusion unsuitable.

Discussion

The court noted the plaintiff questioned the reliability of the defendant’s building code expert witness’s methodology in general. However, the crux of the plaintiff’s case appeared to be the expert’s inability to conduct the necessary checks in compliance with the Florida Building Code. However, the court noted that the building code expert witness performed a thorough visual inspection. Additionally, the defendant’s building code expert witness did make roof cuts to analyze the moisture content. Furthermore, the expert made roof cuts to evaluate how the insulation coating had been removed over the fastener’s heads. The defendant’s building code expert even looked at the uncovered fastener heads for uplifting.

The court further recognized that the challenged opinion was not based on pure conjecture. The opinion tended to be based on a detailed visual examination of the plaintiff’s properties. However, challenges to the investigation’s inadequacy were regarded more as challenges to the weight of the facts rather than admissibility. The court cited Quiet Tech. DC-8, Inc. v. Hurel-Dubois U.K. Ltd in this observation. Consequently, any defects in the expert’s evaluation resulting from the inability to conduct testing in compliance with specific test procedures affected the expert report’s weight. These possible defects were more suited to be tested during trial rather than being excluded in Daubert hearings.

The plaintiff also argued that some parts of the building code expert witness’s opinion were irrelevant. Nevertheless, the plaintiff did not reference any case law to support this argument. The plaintiff simply argued that the sections were irrelevant. The court noted that, according to Rule 401 of the Federal Rules of Evidence, the standard for relevance was liberal. The court cited Daubert in this observation. Additionally, the court saw the reasons why such portions could be relevant. As such, the court dismissed the plaintiff’s assertion of irrelevance.

Ruling

The court denied the plaintiff’s motion to exclude the building code expert witness’s testimony.

Key Takeaways for Experts

It’s critical for experts to be aware of applicable building codes when conducting an inspection. In this case, the plaintiff argued that the expert didn’t conduct the inspection in compliance with the Florida Building Code. The court noted that this affected the weight of the expert report rather than the expert’s admissibility. Your inspection methodology must be thorough. To prevent opposing counsel from discrediting your methodology, it’s important to be cognizant of specific rules that affect the inspection.

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