Construction litigation is a vast and varied practice area. There are countless disputes that can arise over the course of a building project that may require legal action—and a wide range of expert consultants. But recently, three specialties have emerged as highly valued areas of expertise for attorneys taking on these cases. Experts in Occupational Safety and Health Administration (OSHA) standards, American National Standards Institute (ANSI) guidelines, and commercial building codes have each proven to be in great demand for ongoing construction-related litigation. For actively practicing professionals in these areas, the iron has never been hotter for striking into legal consulting with your specialized expertise. Here, we’ll explore the types of construction cases requiring OSHA, ANSI, and building code expertise and how experts can participate.
OSHA Standards Experts
The U.S. Occupational Safety and Health Administration (OSHA) sets and enforces protective workplace safety and health standards. OSHA standards govern workplace safety for construction, agriculture, maritime, and general industry environments. Construction sites, by their nature, present many potential hazards. These include falls from heights, scaffold or trench collapses, electrocution accidents, and lack of general safety precaution enforcement. It falls to an employer to protect their employees and abide by OSHA standards.
In particular, ladder and stairway falls are common, yet very preventable, construction injuries. In fact, falls cause 33.5% of construction site fatalities. Given the stakes of a construction fall, these events can easily become a lawsuit requiring expertise on OSHA guidance. For example, imagine a scenario where a construction worker slips and falls from a ladder and becomes paralyzed. In this case, OSHA experts will be key to opine on workplace safety conditions and operating standards for ladders.
OSHA experts will be asked to discuss whether the ladder itself was defective or whether the workplace premises were safely maintained. Experts will also be called upon to discuss the choice of ladder for the task at hand, plus whether any grease or dirt could have contributed to a slip and fall. Analysis of the ladder and rungs’ structural integrity, steps, and cleats can also come into play for this type of case. OSHA experts will advise the attorney prior to trial and may even testify at trial to provide their expert opinions on the workplace safety factors that contributed to an injured employee.
ANSI Guidelines Experts
One area of construction safety that can be often overlooked is hearing protection. Loud building site noises can leave workers with serious injuries, and even permanent hearing loss, if proper precautions aren’t taken. This area of construction litigation requires input from experts in the American National Standards Institute (ANSI) guidelines. ANSI is a non-profit organization that facilitates volunteer industry leaders in developing standards that set a level of quality and safety across an entire industry. Compliance with these standards is voluntary but is often cited in evaluating quality and safety issues.
ANSI experts have been crucial to ongoing litigation surrounding one particularly high profile hearing protection dispute: 3M combat earplugs. Already, the company has agreed to pay over $9 million to the Department of Justice to settle allegations that it knowingly sold the U.S. military dual-ended combat earplugs without disclosing defects that limited the effectiveness. In the wake of this settlement, veteran and construction worker lawsuits are on the rise.
Multiple plaintiffs have suffered hearing loss, tinnitus, and auditory processing disorder (APD), allegedly due to 3M’s faulty earplugs. The earplugs were designed for military use and marketed to prevent harmful, loud noises while allowing the users to hear softer noises. Due to negligent design and testing, the plugs were too shallow and did not form a proper seal in all subjects to meet the required noise reduction rating, leaving them exposed to harmful sounds and increasing the risk of auditory issues.
Experts are currently needed to opine on whether these faulty earplugs violated ANSI guidelines. In particular, attorneys are looking to ANSI experts to interpret ANSI’s S3.19 standards which provide ratings on a product’s level of predictable protection. It will be important for judges and juries to understand these standards and whether the earplugs were properly tested at an authorized testing facility before being sold. Such testing is required before an ANSI Noise Reduction Rating (NRR) label can be applied to a product. There are complicated formulas for testing earplugs based on the situations in which they will be used and it will be crucial to adequately explain these critical industry safety standards.
Commercial Building Code Experts
Every commercial construction company dreads the arrival of a building inspector. Citations for even the smallest code noncompliance can cause delays that put the project behind schedule. The nightmare scenario, however, is a civilian injury on a construction site. Imagine a case where a civilian falls through an emergency hatch in a portion of a commercial building that is still under construction and suffers severe spinal injuries. Attorneys will look for an expert with knowledge and experience with building codes for commercial construction sites to mount an affirmative case or rebuttal.
A building code expert will need to determine whether everything was up to code and whether additional safety precautions should have been taken. Early case assessments will sweep through all the possible problems that could have contributed to the plaintiff’s serious injuries. Certainly, experts will delve into the most common commercial code violations as reported by the International Code Council. These common problems include workers failing to follow manufacturer instructions for installation or a contractor’s lack of code knowledge. But it’s precisely this kind of specialized knowledge from a building code expert that can help an attorney build their strongest possible case.
