In construction defects litigation, opposing parties often present widely divergent assessments of the nature, cause, and extent of purported deficiencies. Such conflicting presentations may well be founded on reasonable analyses by impartial experts who simply have honestly differing perspectives of the underlying facts and logic of the case. Alternatively, some consultants simply may not truly understand the issues being litigated. However, as demonstrated with the following “case studies,” there are building enclosure experts (plaintiff and defense) who willingly advocate findings that exceed the bounds of honest reason and basic credibility. Often, these egregious advocates misuse traditional statistical analysis or the qualitative sampling precepts of industry standard ASTM E2128, Standard Guide for Evaluating Water Leakage of Building Walls.1 CASE STUDY 1 – PHOENIX, AZ Consider a 50-building apartment complex in Arizona where, at 200 second-floor entry landings (Figure 1), improperly attached and terminated metal flashings (Figure 2) provided multiple routes (Figures 3 and 4) for damaging rainwater migration down to the stucco-wrapped engineered wood beams supporting these stair landings. As seen at all 200 of these beams, evidence (for example, staining and efflorescence per Figure 1) of trapped moisture and underlying damage (Figures 5 and 6) could be readily seen at the wrapped stucco.2 As this case slowly proceeded through state and federal litigation processes, AVELAR personnel testified that these conditions compromised these buildings’ minimum expected “service life”3 in violation of applicable building codes, industry standards, the contracted project specifications, and the permitted architectural drawings. In contrast, opposing 26 • IIBEC Interface March 2021 Figure 1. Case Study 1 – Typical entry stair landing at 50-building apartment complex in Phoenix, AZ. defense consultants asserted that all such incomplete waterproofing and flashing work complied with local construction practices. (In essence, these parties argued that the water-damaged wood beams simply represented uninsured “acts of God.”) While these local consultants may truly have believed that such poor craftsmanship was the local industry “standard” for lowest-bid contractors at large-scale multifamily residential projects, we strongly disagreed.4 Further, despite doing no destructive testing of its own,5 the defense presented an economist to argue that the lack of randomized statistical sampling rendered our extrapolative findings invalid. In response, we cited the purposeful expert-driven “qualitative” (non-statistical) protocols Figure 2. Case Study 1 – Removal of concrete walking surface revealed improperly attached and terminated metal flashings. Figure 3. Case Study 1 – Infiltrating water flowed under/around the “T-bar” flashing down to the wood beam below. March 2021 IIBEC Interface • 27 Figure 4. Case Study 1 – Such damaging leakage was accelerated by breaches in the waterproofing membrane. recommended by the authors of ASTM E2128, as further reviewed at Case Study 2 hereinafter. In the end, jurors at the two trials (state and federal) concluded that these various defense arguments exceeded the bounds of reason and credibility. 6 CASE STUDY 2 – SAN JOSE, CA Consider a condominium complex in San Jose, California. The multistory wood-framed, stucco-clad structure (Figure 7) was built atop a concrete podium slab7 that serves as the structural lid for the parking garage below. At the facility’s interior courtyard, a concrete topping slab8 was installed (above a waterproofing membrane) atop the podium slab. As evidenced by Figure 8, we observed multiple areas of damaging water leakage through the podium slab down into the garage. Then, per Figure 9, destructive testing at the topping slab confirmed trapped water between the waterproofing membrane and the podium slab. Finally, as exemplified by Figure 10, at 16 distinct test locations at stucco-clad wall-toslab transitions we consistently found trapped moisture and associated structural damage due to flashing and drainage deficiencies. In our summary report, we confidently extrapolated these base-of-wall performance deficiencies to the entire perimeter (approximately 1,000 linear ft.) of the interior courtyard. The defense elected to not carry out any destructive testing. During the ensuing litigation process, a 28 • IIBEC Interface March 2021 Figure 5. Case Study 1 – This damage was exacerbated by the absence of weep screeds at the stucco-wrapped beams. Figure 6. Case Study 1 – Trapped moisture at the engineered wood beams promoted structural damage and fungal growth. defense statistician whose doctorate was in the field of quantitative sociology9 asserted that these documented conditions simply could not be considered “representative” because our team’s sampling and evaluative methods had not been carried out in accordance with statistical sampling protocols. In deposition, he opined, “What they would have to do is lay out the linear feet of the integration of the membrane with the podium walls. . . . Do you test 3 feet? Do you test 5 feet? Whatever. Break it up into numbered segments and randomly select . . .” He further testified, “I don’t believe there is an industry standard for how to do this. There is a right way and a wrong way to do it, and what I’ve given you is the right way to do it.” As further reviewed below, such fervent and unsupported righteousness by defense statisticians employed for construction defects litigation commonly is based upon unintended logical fallacies and associated “circular reasoning.”10 March 2021 IIBEC Interface • 29 Figure 7. Case Study 2 – Transition from the stucco-clad walls to the “topping slab” and underlying “podium slab.” The Original & Best Performing Liquid Flashing R www.apoc.com • (800)562-5669 Ideal for Roofing, Waterproofing & Building Envelope Applications Fast Install with up to 50% Labor Savings Solid Monolithic & Waterproof Configuration Use on Vertical or Horizontal Applications Available in Multiple Sizes & Containers R In short, despite having no construction experience of any kind, he fully rejected the purposeful expert-driven qualitative (nonstatistical) protocols recommended within industry standard ASTM E2128: • Section 5.2: “The protocol in this guide is not based on conventional hypothesis testing and quantitative random sampling. . . . The objective of this guide is qualitative, purposeful, and intended to address the question of why, how and to what extent a building leaks.” • Section 5.3: “It is not assumed or expected that all locations with similar design, construction and service characteristics will be currently performing in precisely the same manner. . . . The evaluation of water leakage of building walls is a cognitive process in which technically valid conclusions are reached by the application of knowledge, experience and a rational methodology to determine the following: 5.3.1 The intrinsic properties of the wall. 5.3.2 The cause(s) and mechanism(s) of leakage. 5.3.3 The applicability of findings to similar un-inspected or un-tested locations on the building.” CASE STUDY 3 – EAST COAST Consider a massive 800-unit, 100-building condominium complex in the northeastern United States. The project was developed in five distinct construction phases over a ten-year period using differing contractors and subcontractors. At every building, the primary cladding system is vinyl lap siding with smaller sections of traditional three-coat stucco, adhered masonry stone veneer, and composite panels. To evaluate the extent of alleged construction defects, the homeowners association hired an East Coast building enclosure consulting firm that drilled 4,762 pairs of holes (that is, on average, 47.6 pairs of holes per building) through these multiple claddings in order to insert insulated pins to measure moisture content (MC) levels at the underlying wood-based sheathing or framing. From these MC readings at the 100 buildings, a total of 64 test-cut locations were selected for destructive examination. The conditions exposed by these test cuts were key factors in the principal architect’s claims that most of the cladding systems at this complex should be replaced (or partially reinstalled). It was asserted that these qualitative extrapolations were consistent with the cognitive sampling protocols of industry standard ASTM E2128.12 We were hired by the defense to assess the credibility of these extrapolations. Upon review, we found this architect’s analyses contained blatantly bloated advocacy. For example, of the 1,047 readings taken through the vinyl lap siding, only 18 measured 20% MC or higher. Further, this architect’s projectwide siding extrapolation was supported by only six test openings (of which five were taken at only one construction phase of this five-phased, ten-year, multi-contractor project). Then, perhaps recognizing the absurdity of extrapolating from such limited destructive sampling, he further claimed that a purported windowsill flashing deficiency (seen only at three test openings at the adhered masonry stone veneer-clad walls) necessitated reflashing (with associated cladding remediation) all 9,000 windows at all exterior cladding systems throughout the entire complex. Even more remarkably, while the architect’s crew had inspected sill flashing at only 1 of the 5,300 windows at the vinyl-clad walls, and the conditions exposed at this window had not revealed the purported flashing defect, this architect’s fully burdened costing analysis for vinyl siding remediation (not including additionally claimed costs for reflashing these 5,300 windows) still exceeded $5.7 million. Similarly questionable analytical incongruities riddled the firm’s summary report. We advised our client that these assertions were not consistent with the protocols of ASTM E2128, which advises: “The conclusions and findings from an evaluation must be rationally based on the activities and procedures undertaken and the information acquired, if they are to be considered legitimate and substantiated.” We further reported: “For their findings to be considered substantive, building envelope professionals must avoid any degree of biased advocacy that hides, distorts, or selectively interprets the collected data. An absolute cornerstone of the qualitative survey process is the credibility of the researcher. The trustworthiness of the qualitative analysis corresponds directly to the trustworthiness and demonstrated competence of the investigator.”13 CASE STUDY 4 – JACKSONVILLE, FL Consider a 31-building condominium complex in Jacksonville, Florida. The homeowners’ association hired a respected local engineering 30 • IIBEC Interface March 2021 Figure 8. Case Study 2 – Extensive water leakage through the podium slab was seen at the ceiling of the parking garage. 32 • IIBEC Interface March 2021 firm to carry out a building enclosure investigation relying upon multiple industry standards, including ASTM E2128; ASTM E2266, Standard Guide for Design and Construction of Low-Rise Frame Building Wall Systems to Resist Water Intrusion;14 and ASTM E2018, Standard Guide for Property Condition Assessments: Baseline Property Condition Assessment Process.15 During our later review, we found this engineer’s building enclosure assessment process to have been consistent with the investigative and evaluative protocols of ASTM E2128. As has become increasingly common, the defense elected to do no destructive testing of their own, instead hiring a statistics professor from an Arizona university who opined that plaintiff expert’s analyses were not valid because the qualitative investigaton had not been carried out in conformance with the protocols of “hierarchical statistical analysis” (commonly used for clinical trials that evaluate the efficacies of medical or educational treatments). We were commissioned to explain to the court the irrationality of this defense statistician’s assertions, which we demonstrated were founded upon logical fallacies and associated circular reasoning that served to thoroughly discredit the professor’s analyses. Like most statisticians who wander blindly into the defects litigation arena, a freely admitted lack of practical construction knowledge or experience had not constrained the professor from confidently opining: • The term “extrapolation” never can be employed for any evaluative process except randomized statistical sampling; therefore • Because plaintiff expert’s extrapolative processes and the qualitative protocols delineated by ASTM E2128 were inconsistent with random sampling, these methods were intrinsically invalid. This argument is fundamentally flawed because it begins with a demonstrably unproven premise (that, despite the industry-accepted methodologies of E2128, random statistical sampling is the only legitimate approach for construction defects inspection and evaluation processes) that leads circularly to a predetermined conclusion. We advised our client that “extrapolation” certainly encompasses far more than the self-promoting definition of a special interest group. Consider, for example, how well Merriam Webster’s definition (“to infer values of a variable Figure 9. Case Study 2 – Trapped water was found atop the podium slab (under the waterproofing membrane). Figure 10. Case Study 2 – Trapped moisture and resulting damage were found at the basewall transitions. in an unobserved interval from values within an already observed interval”16) comports with E2128’s investigative and extrapolative protocols. In our firm’s litigation experience, defense statisticians have strived to craft via circular reasoning an illusory “straw man”17 opponent (a pretend incompetent statistician) that they then can readily rebut from the confines of their offices while fully side-stepping the actual merits (or lack thereof, as seen previously in Case Study 3) of the plaintiff expert’s extrapolative findings. In our opinion, this approach constitutes close-minded intellectual laziness masked by self-reverential certitudes unsupported by any construction-knowledgeable authority,18 industry association,19 or government agency.20 SUMMARY DISCUSSION IIBEC’s Code of Ethics well defines the moral and ethical duties of building enclosure experts: “Members and registrants . . . shall maintain the highest possible standard of professional judgment and conduct. Members and registrants shall conduct their practice honestly and impartially, serving with integrity their clients, employers, and/or the public. Learned and uncompromised professional judgment should take precedence over any other motive.”21 Unfortunately, as exemplified by these typical case studies, IIBEC professionals will encounter a wide range of litigation consultants whose assertions greatly exceed the bounds of expert reason and credibility. There will always be monetary rewards for those willing to promote extreme positions intended to game the litigation process. Interestingly, we often find those attorneys (plaintiff and defense) who actively encourage egregious advocacy will justify this approach by vilifying the purportedly malign misconduct of the other side. Still, the seemingly nefarious intent of the opposition may merely reflect nothing more than a lack of codes and standards training. As suggested above in Case Study 1, certain defense-only consultants may truly believe that rainwater leakage and resulting structural decay are acceptable outcomes at cost-conscious production home projects. Similarly, as well typified in Case Studies 1, 2, and 4, those defense statisticians hired to discredit qualitative extrapolations carried out in conformance with ASTM E2128’s protocols profess to operate in a different plane where their formulaic calculations will always trump expert-driven knowledge and field experience. Whether these consultants are economists, quantitative sociologists, or advanced practitioners of heirarchial statistical analysis, their acknowledged lack of practical construction knowledge is seen as being irrelevant. Any contrary assertion will be discounted during the litigation process via narrowly self-referential circular reasoning. By contrast, in Case Study 3, the plaintiff architect’s exagerrated extrapolations did appear to evidence knowingly compromised professional judgments unworthy of a building enclosure expert. In all such instances: “For their findings to be considered substantive, all qualitative researchers, including building envelope professionals, must avoid any biased advocacy that hides, distorts, or selectively interprets the collected data. The mantra of the qualitative researcher must be: ‘It is what it is.’ In other words, the data tell the story, even if this story differs from the desired or expected findings.”22 As IIBEC members, we must strive to resist both unsupported certitudes and ethically compromised advocacy by practicing expert-driven analysis derived with professional integrity from applicable code requirements and associated industry standards. March 2021 IIBEC Interface • 33 Purchase Your Copy! Visit iibec.org to purchase. Printed Version Printed Version IIBEC Member: $399.00 IIBEC Nonmember: $459.00 IIBEC Member: $75.00 IIBEC Nonmember: $95.00 Digital Version IIBEC Member: $59.00 IIBEC Nonmember: $79.00 IIBEC Member: $349.00 IIBEC Nonmember: $429.00 Digital Version Reserve Your Copy! REFERENCES 1. ASTM E2128, Standard Guide for Evaluating Water Leakage of Building Walls. ASTM International. Conshohocken, PA. https://www.astm. org/Standards/E2128.htm. 2. The absence of “weep screeds” at the bottom corners of these beams certainly exacerbated the resulting water damage and fungal growth. 3. ASTM E2266, Standard Guide for Design and Construction of Low-Rise Frame Building Wall Systems to Resist Water Intrusion. Section 4.2: “This guide is based on the assumption that building wall systems are supposed to maintain their structural integrity for a period in excess of a traditional 30-year mortgage, and by extension, that water intrusion over that period is restricted to such a degree that water-induced structural damage is avoided. In essence, the expectation is that a frame wall’s watershedding functionality will remain viable over a period in excess of a traditional 30-year mortgage, given that the building is not subject to abuse, and receives a reasonable level of maintenance.” https:// www.astm.org/Standards/E2266.htm. 4. Murphy, C. and L. Haughton. 2010. “Building Codes, Industry Standards and Evaluation Reports.” Interface, (January): “An industry standard is a published document or detail that helps define the levels of design, materials, and workmanship that currently are recognized via consensus by regional or national industry associations that represent a broad spectrum of the key players within the specific industry. These consensus standards represent the minimum efforts necessary to achieve a level of quality construction that, with reasonable and timely maintenance, will provide satisfactory performance throughout the intended service life of the system.” 5. Haughton, L., T. Stokes, D.M. Field, and S. Penland. 2020. “Insurance ‘Wrap’ Policies Are Transforming the Large-Scale Building Enclosure Forensic Evaluation Process.” Interface. (April): “While we scoff at the legal gambit of using an inexperienced statistician to attack a plaintiff expert’s findings, it does sometimes make good sense for the defense to not carry out additional destructive testing.” 6. The subsequent federal trial was initiated by the nationwide carrier that had provided “excess coverage” insurance to supplement the general contractor’s $1,000,000 primary policy. This carrier, who had not even assisted the general contractor’s defense, then balked at paying the excess damages awarded at the state trial. The subsequent federal jurors ruled against this carrier’s efforts to deny coverage. 7. A concrete “podium slab” is an engineered floor system that transfers the vertical loads from a steel- or woodframed structure above to the concrete walls and columns below. The load-bearing walls of the superstructure above the podium slab commonly will not align with the load-bearing elements of the substructure below. 8. A “topping slab” is a concrete overlay designed to provide a finished floor surface and, where weather exposed, a protective covering for an underlying waterproofing membrane. 9. Deposition testimony: “It was essentially a course of study focused on measurement of the human population and also measurement of things that they 34 • IIBEC Interface March 2021 Quickly and easily detect air and water leaks in air barriers and roof membranes. Leak Tester Conforms to ASTM E1186 1-800-448-3835 www.defelsko.com DeFelsko Corporation l Ogdensburg, New York USA Tel: +1-315-393-4450 l Email: techsale@defelsko.com n Single and two-ply membranes n Liquid applied membranes and paint n Air barriers n EPDM roofing systems n Waterproofing and more March 2021 IIBEC Interface • 35 possess. I’m what’s called a quantitative sociologist, and my job is principally to do surveys of the population and to design and carry out experiments on the population.” 10. ht t ps://en.wik ipedi a . org/wik i/ Circular_reasoning: “Circular reasoning . . . is a logical fallacy in which the reasoner begins with what they are trying to end with. The components of a circular argument are often logically valid because if the premises are true, the conclusion must be true. Circular reasoning is not a formal logical fallacy but a pragmatic defect in an argument whereby the premises are just as much in need of proof or evidence as the conclusion, and as a consequence the argument fails to persuade. Other ways to express this are that there is no reason to accept the premises unless one already believes the conclusion, or that the premises provide no independent ground or evidence for the conclusion.” 11. Haughton, L. and C. Murphy. 2007. “Qualitative Sampling of the Building Envelope for Water Leakage.” Journal of ASTM International. ASTM International. Conshohocken, PA. www.astm.org/DIGITAL_LIBRARY/ JOURNALS/JAI/PAGES/JAI100815. htm: “A cardinal principle of qualitative sampling (aka inductive analysis) is that resulting causal findings and theoretical statements clearly must be emergent from and grounded in purposive (or judgmental) field observation. In other words, the expert’s step-by-step process of qualitative analysis builds toward general patterns that emerge from a series of purposefully collected datasets, instead of being derived statistically from a dataset that has been randomly generated to prove or disprove a predetermined hypothesis.” 12. Haughton, L. and C. Murphy, 2010. “Overview of ASTM E 2128, Standard Guide for Evaluating Water Leakage of Building Walls. “Interface, (February): In short, the authors of ASTM E2128 are prescribing a purposeful qualitative inquiry in which the goal of the skilled investigator is to produce findings that identify cause-and-effect relationships between building envelope characteristics and observed leakage and resulting damage.” 13. Quoted from L. Haughton and C. Murphy. 2007. “Qualitative Sampling of the Building Envelope for Water Leakage.” Journal of ASTM International. www.astm.org/ DIGITAL_LIBRARY/JOURNALS/ JAI/PAGES/JAI100815.htm. Cited within ASTM E2128. 14. ASTM E2266, Standard Guide for Design and Construction of Low-Rise Frame Building Wall Systems to Resist Water Intrusion. ASTM International. Conshohocken, Pennsylvania. https:// www.astm.org/Standards/E2266.htm. 15. ASTM E2018, Standard Guide for Property Condition Assessments: Baseline Property Condition Assessment Process. ASTM International. Conshohocken, Pennsylvania. https:// www.astm.org/Standards/E2018.htm. 16. Merriam-Webster.com Dictionary, s.v. “extrapolate.” https://www.merriam- webster.com/dictionary/extrapolate. 17. ht tps://en.wik ipedi a . org/wik i/ Straw_man: “A straw man is a form of argument and an informal fallacy based on giving the impression of refuting an opponent’s argument, while actually refuting an argument that was not presented by that opponent.” 18. E.g., ASTM STP 1493, Repair, Retrofit and Inspection of Building Exterior Wall Systems. 2009. Edited by Jon Boyd and Paul Johnson. ASTM International. Conshohocken, PA. https://www. astm.org/DIGITAL_LIBRARY/STP/ SOURCE_PAGES/STP1493.htm. 19. Searls, C.L. and T.N. Stubblefield. 2013. “Investigation of large-scale building envelope leakage.” Forensic Engineering 166. Institution of Civil Engineers. London, United Kingdom: “The building envelope investigation is not based on conventional hypothesis testing and quantitative random sampling, but rather on scientifically valid principles of qualitative analysis (ASTM, 2012; Haughton and Murphy, 2007). The building is known to leak, and the purpose of the investigation is to determine why it leaks, the extent of leakage and possible repairs. This is done through a process of observation, testing and analysis using the engineer’s experience. Investigation is a problem-solving process that is often not linear.” 20. Building Enclosure Rehabilitation Guide: Multiunit Residential Wood- Framed Buildings. 2011. State of Oregon Housing and Community Services. Salem, Oregon. www.oregon.gov/ohcs/ hd/mf h/pdfs/building_enclosure_ rehab_guide_combined_final.pdf): “From this perspective, it is favorable to utilize information-rich sampling, rather than random, blind sampling. This methodology is well established in the field of qualitative analysis. In their paper, Qualitative Sampling of the Building Envelope for Water Leakage, Lonnie L. Haughton and Colin R. Murphy provide a useful lay discussion of qualitative analysis and its direct benefit with use in the building assessment industry.” 21. International Institute of Building Enclosure Consultants. Code of Ethics. https://iibec.org/membership/code-ofethics/ 22. Haughton, L. and C. Murphy. “Qualitative Sampling of the Building Envelope for Water Leakage.” Journal of ASTM International. 2007. ASTM International. Conshohocken, PA. www.astm.org/ DIGITAL_LIBRARY/JOURNALS/ JAI/PAGES/JAI100815.htm. Lonnie Haughton, MCP, LEED AP, is a senior partner with AVELAR, a forensic architectural, engineering, construction, and codes consulting firm in Walnut Creek, California. (Founded in Oakland in 1976 as Richard Avelar & Associates, the firm has rebranded and relocated in 2020.) Haughton is a California-licensed general contractor and one of about 950 code professionals certified by the International Code Council as active Master Code Professionals. His paper, “Qualitative Sampling of the Building Envelope for Water Leakage,” published in the October 2007 issue of the Journal of ASTM International, is cited within industry standard ASTM E2128. Lonnie Haughton, MCP, LEED AP 36 • IIBEC Interface March 2021 IIBEC HAS MOVED Please note our new address when sending any correspondence to HQ, and make sure to update your company’s records. IIBEC 434 Fayetteville St., Suite 2400 Raleigh, NC 27601 An AI program is being developed that, when combined with footage from unmanned aerial vehicles (UAVs), could be used to conduct automated investigations of building enclosures, possibly identifying problems earlier. Thornton Tomasetti Damage Detector (T2D2) is a machine-based learning system that uses an image-analysis algorithm to search for and identify damage to building façades and roofs. The system was invented by Badri Hiriyur, director of Thornton Tomasetti’s CORE.AI lab. The T2D2 has been fed numerous photos from Thornton Tomasetti’s archives to teach it to identify problem areas. The company stresses that this technology is not meant to take the place of a qualified engineer conducting inspections, but rather to enable more frequent, automated inspections that might be able to identify possible problem spots and bring them to the attention of an inspector. It is hoped that this early intervention will help catch potential concern spots before they cause significant damage. — ENR AI Could ID Construction Defects Early Image courtesy of T2D2. 2021
