Have any of you had your deposition taken or testified at a construction defect or product liability trial? If so, what were the circumstances of your involvement and your thoughts on the process?
1 Like
Ron:
By âconstruction defectâ, do you mean materials, workmanship, or both?
Mike,
A construction defect can occur in either or both.
Ron
A former employer made and sold exhaust parts for engines used in yachts.
Our warranty specifically stated that we would make modifications as needed at reasonable cost,
but if anyone else modified our stuff in any way, the warranty was immediately null and void.
A third party chopped up some of our OEM ârisersâ and re-used the complicated sections as part of a
âcustomâ system he sold to a boat owner. The resulting product resulted in the boatâs fiberglass mufflers overheating and all but melting, at sea. The owner sued the third party, who in turn sued us for
providing a defective product.
Our warranty didnât really protect us. We were forced to retain an âadmiralty lawyerâ, for $15,000, and eventually to contribute another $25,000 or so toward a settlement with the owner, not counting our costs for sending me to inspect the boat and then to testify at a court- mandated hearing before
a professional arbitrator. All over a product that we sold to an engine manufacturer for $600.
The experience was enlightening and disappointing.
In my college days, I got a ticket for inadequate mufflers on my very old Hillman Minx, and went before the local judge, who drove a nice Jaguar E-type. He asked âguilty or not guilty?â. I asked him if there was a third choice, and he explained about ânolo contendereâ, so I took that and explained that things were always falling off my car, the problem was already fixed, and he should know all about it because he drove a Brit car too. He let me off with no penalty, and suggested that I consider attending law school after graduation.
Iâve always wondered if I should have taken his advice; a lot of lawyers on all sides made a lot of money from our âdefectiveâ product.
@MikeHalloran
MikeâŠgood story. Very typical of product liability.
Of all of the dispute resolution methods, arbitration is the worst in my opinion. Courts are often mandating arbitration, but they often require non-binding arbitration (useless on its own, but it gives both parties a chance to see what a trial might be like). Sounds like yours was binding arbitration.
Many times, insurance companies will settle cases, even those without merit, just to get rid of the nuisance value.
Mike,
Iâm trying to see where the loophole came from.
Were the products sold by your company intended to require modifications before they could be installed? I am also thinking about the ways to install the exhausts on other boats that would cause damage, but not need an 3rd party modification to have the same effect.
But it opens up old wounds so forgive me for prying.
About four years ago I was involved with helping a homeowner who had issues with the quality of the concrete for a new foundation that a local concrete supplier had supplied.
The issue was adding water on site to the mix in the truck, uncontrolled to make the concrete flowable, and dealing with a loss in strength and additional shrinkage in the process. Embeds were also wet set into this pour to include STAB hold downs, but that was not the issue in the suit, only the concrete quality.
Problem for the homeowner was that this situation was a âgood old boysâ situation where the concrete contractor, supplier and building department officials were working together, to the homeowners detriment. I had my opinions, but the powers to be were too much and, in short, the suit was dropped after a lot of concrete cores were taken and tested with no firm data to present⊠Never went to court.
Have been to court on two other issues though over the years, but not material or workmanship related issues.
Our products were sold on a âmade to fitâ basis. If we measured the boat, and they didnât fit, we would fix them for free. If the owner measured the boat and the parts didnât fit, weâd work something out.
In this particular case, our products were delivered with the engine, and interfaced to the boat via a piece of large rubber hose. ⊠so the engine manufacturer was also dragged in as a defendant.
A âriserâ is a piece that takes hot exhaust gas, sends it on an upward path, then sends it downward, and through a âmixerâ that introduces water into the flow to protect the rubber hose and the typically fiberglass plumbing that carries the exhaust/water mixture out of the boat.
The short pipe and elbows between the engine and the mixer are usually jacketed, or covered with insulation and a rigid thermoset jacket so that you donât get burned by leaning on the assembly.
In this particular case, our product was a simplified version of a riser, comprising a jacketed elbow and a mixer, normally installed so that the effluent of the mixer was facing in a generally downward direction, in which orientation, the mixers worked just fine. Since the turbos were near the very top of the engine, there was no other logical way to install them.
The third party, a local âmarine exhaust expertâ (there are few barriers to entry), rigged up an installation where an elbow at the turbo exit directed the exhaust downward to another elbow down near the crank plane, and welded on our mixers with the axes horizontal, followed by the usual rubber hose, etc.
I donât remember if the third party assemblies were jacketed or insulated, but it didnât matter; our mixers did not work well with their axis horizontal, and had never been used that way by us.
Shortly after my arrival at the exhaust manufacturer, we did have mixers that worked very well with their axis horizontal, but the âdump elbowsâ had been sold to the engine manufacturer as standard parts for decades and used without complaints, so no one had seen any compelling reason to substantially change their design. Actually the two dump elbows on the boat had slightly different designs, since the two engines were built at different times, and I had made an incremental improvement in that time gap. The third partyâs face lit up when the incremental improvement was revealed during arbitration discovery, but I said something to the effect that every manufacturer makes incremental improvements to every product without notice, and further said that neither of the extant parts would work properly as he had installed them.
A somewhat related story that didnât go to court.
We made risers for a much bigger boat built on the West Coast. It got our new, high efficiency mixers, and our usual âno modification allowedâ warranty.
Unknown to us, the boatyard cut off the stainless elbows feeding the mixers, and substituted silicone hose elbows, in order to fit the risers through the door in the engine room. In prior boats, risers had been installed when there was no door assembly in the bulkhead, which has a much larger hole where the door assembly is bolted in.
Those silicone elbows are normally limited to ~5psi max, and burst at around 15 psi. We found out the latter when they burst at sea trial, and the engine room started filling with seawater, very rapidly.
I then explained to the boatyard that our high efficiency mixers were also high pressure mixers, normally producing ~22 psi of backpressure on the engine cooling water system at WOT.
We happily changed the riser design, and subsequent sets of risers, to locate the feed elbows in a different position, so that they would go through the open door with no difficulty. Issues like that are why the warranty prohibits modification without our knowledge.
@MikeHalloran
Mike,
Good outcome on that last one. In construction, if a lot of the contractors would recognize their problems and fix them through proper supervision on the front end and correction of defects on the back end, there would be a lot less litigation.
Thanks for the case historyâŠexperience is a great teacherâŠunfortunately it often comes at someone elseâs expense.
I have been deposed related to a construction defect. I was the expert hired by the insurance carrier that represented the contractor. It was related to improper construction of a masonry wall. I didnât mind the process, the deposition took place some time after the inspection. Iâve been deposed several times nowâŠthe more times deposed the less nervous I am. I always try to make sure Iâm prepared.
Mike,
Sorry to take so long to respond. Iâve been tied up to my ears with litigation.
Yes, the more exposure you have to depositions and the litigation process, the better youâll feel about them. I have somewhere between 150 and 200 depositions behind me a 28 trials.
You are rightâŠpreparation is key. Donât let your client bully you into taking shortcuts because of cost for your preparation. Do what you feel comfortable with. Itâs your license and reputation, not your clientâs. In the end, no client is ever worth compromising your reputation.