Launch Slideshow

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Judgment Day

Judgment Day

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    Joe Ferrentino, attorney with Newmeyer & Dillon

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    Michael Turner, attorney with Kasdan Simonds

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    Judge David C. Velasquez

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    William Ingalsbe, attorney with Monteleone and McCrory

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    Concrete has deteriorated due to sulfate attack.

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    Left: Batchman Richard Bowman (left) talks with Tim Toland, president of National Ready Mixed Concrete Co., at its plant in Van Nuys, Calif.

Indeed, while defending an earlier case, the Newmeyer & Dillion law firm researched Kasdan Simonds' previous concrete cases. According to Ferrentino, they investigated 150 to 200 houses that had won either judgments or settlements for sulfate attack. “We didn't find any that had a building permit to repair the concrete,” says Ferrentino.

“I challenge the Kasdan firm to point out homeowners who have taken this money they've gotten and used it to repair their concrete,” adds Ingalsbe. “I believe they've used it for vacations, to buy cars, and to send their kids to college, but not to repair concrete. That tells me that these cases do not have merit.”

Trying to settle

Settlements from all the other defendants probably amounted to $60,000 to $70,000 per home, according to Ingalsbe and other sources. During the trial, one homeowner testified that he received about $20,000, the rest having gone to pay the attorneys and their experts.

The concrete producers actually tried to settle the Castron suit. In April 2004, National offered $1000 per home, which was rejected. Standard made a similar offer. The plaintiffs were demanding $10,000 per home for the concrete complaint. In June 2004, National increased its offer to $3001 to settle. Ingalsbe recalls that the plaintiffs rejected it and increased their demand to $25,000.

The settlement demands stand in stark contrast to the monetary claims made in the trial, where the plaintiffs asked for more than $200,000 per home for repairing the concrete, alternate housing, loss of use, and related expenses.

Their proposed repair method involved isolating the concrete from the surrounding environment with an epoxy grout, including drilling holes in slabs and injecting epoxy underneath. Around the foundation perimeter, they proposed digging a trench and installing .45 water/cement ratio concrete, married to the original foundation with steel dowels.

This method was actually first suggested about eight years ago by Geoffrey Hichborn Sr., president of the Hichborn Consulting Group and a nationally recognized concrete expert who was a key defense witness in Castron. It was suggested by the defense in a different case, as a less expensive alternative to jacking up the house and replacing all the concrete. What they had expected to do with a $25,000 settlement remains unsaid.

Junk science

In a pre-trial hearing, the defendants asked the judge to exclude much of the plaintiffs' scientific evidence under California's Kelly-Frye rule, which is intended to prevent a jury of laymen from being overwhelmed by scientific evidence which they are not qualified to evaluate. The plaintiffs also challenged one of the defense's methods.

On Nov, 29, 2004, the day the Kelly-Frye hearing was set to begin, the plaintiffs waived the right to a jury trial, but Ingalsbe convinced Judge Velasquez to hear the expert testimony anyway and rule on its admissibility.

The evidentiary hearings took five months. Ingalsbe and Hichborn argued that the plaintiff's methods were not “generally accepted in the relevant scientific community,” and in some cases, that the tests were not performed properly.