by Eric J. Miersma
By now, anyone in the concrete industry in Southern California is probably familiar with the case Castron v. Fieldstone Pacific Limited Partners (Orange County Case No. 02CC00007). For those of you unfamiliar with this case, it involved a lawsuit by the owners of twenty-five Mission Viejo, California homes against the builder, concrete subcontractors, and concrete suppliers. The case went to trial with plaintiffs for nineteen of the homes and one of the concrete suppliers. The plaintiffs alleged defective construction of their concrete slabs claiming, among other things, that the concrete had an excessively high water/cement ratio, contained the wrong type of cement, and had been damaged by sulfate attack. The Court found in favor of the concrete supplier and denied any recovery to the plaintiffs, who then received the concrete supplier’s demand for reimbursement of its defense costs.
Although a defense victory is always welcome news, the Castron case is more interesting for the Court=s pre-trial rulings on evidentiary issues. Plaintiffs sought to introduce evidence of test results obtained through Scanning Electron Microscopy, water/cement ratio analysis, the STADIUM computer model, moisture domes, Rapid Chloride Permeability Test, and Vapor Transmission Test. The defense challenged these tests under California law which establishes the Court as the “gatekeeper” tasked with preventing junk science from being considered by the Court or jury. In California, the standard for admissibility of a new scientific test or methodology is: (1) whether the science is generally accepted by the relevant scientific community, (2) whether the expert is properly qualified, (3) whether the expert used the correct scientific method. (People v. Kelly (1976) 17 Cal.3d 24.)
After one-hundred and twenty days of testimony by more than twenty experts, the Castron Court excluded evidence of all the tests except for Scanning Electron Microscopy. The Court found, in general terms, that the excluded tests were not generally accepted by the relevant scientific community for the purposes for which they were used, and the correct scientific procedures were not followed. While a complete technical analysis of the Court’s ruling on each test is beyond the scope of this article, the ruling regarding moisture domes is illustrative. Plaintiffs’ attorneys often use moisture domes (Vapor Emission Tests) to support claims that the concrete is too permeable, porous and contains an excessively high water/cement ratio. However, moisture dome testing was originally designed for use by the flooring industry to determine the suitability of concrete for the installation of flooring and has not been generally accepted by the scientific community as a measure of vapor transmission through a concrete slab for purposes of determining permeability, porosity, or water/cement ratio.
Unfortunately, the Castron case is not a published decision meaning it cannot be cited as legally binding precedent. Its importance lies in the knowledge that judges are acting as gatekeepers and keeping junk science out of the courtroom. Plaintiffs’ attorneys who use these tests may now more carefully consider the risks of expending thousands of dollars on testing that may ultimately be excluded by the Court. My own recent experience defending a concrete subcontractor resulted in a good settlement when the Orange County judge assisting in mediation and familiar with the Castron rulings was receptive to my insistence that the plaintiffs’ evidence would not be admissible at trial. Interestingly, the same plaintiffs’ attorney, in a later case involving different homes in the same project, elected not to invest in concrete destructive testing.
If you should find yourself a defendant in a construction defect lawsuit, and faced with seemingly overwhelming, expensive and highly technical scientific testing offered against you, remember the Castron case. Take heart that courts can and do fulfill their obligations as gatekeepers and keep the barbarians at bay.
