In June 2005, the judge ruled, allowing the defense's strength-testing evidence and excluding five out of six types of the plaintiffs' technical evidence. This decision was later widely publicized as “Judge Throws Out Junk Science.”
Vaughan points out that the judge never said “junk science,” and traces that term solely to a public relations firm's press releases. He says some of the plaintiffs' evidence was excluded, not because it was junk, but because it was cutting-edge.
Under the rule, “If it's new and it's novel, it doesn't matter whether it's right or wrong. It's not admissible,” says Vaughan. “There have been numerous instances in which the law has kept evidence out because it's not generally accepted. Then the scientific community catches up with the innovator and that kind of testimony is then accepted.”The trial
In July 2005, on the day the trial was to begin, the plaintiffs made Standard an offer which “our client couldn't refuse,” says Standard's attorney, Mark Petersen. Sources put that figure at more than $8000 per house.
Asked why the plaintiffs would settle with Standard and not with National, Petersen suggests that Standard had “some factual and expert advantages” that may have made the risk of trial less appealing to the plaintiffs. Turner recalls that Standard had concrete delivery tickets indicating what type of cement was used; none were available for National. “Some of the defendants had floods and fire that destroyed documents,” adds Turner. “We would never suggest it was deliberate. It's just odd.”
The next phase began Aug. 1, 2005, with National as the sole defendant.
Many issues were contested. Ten-year-old records were incomplete or contradictory. It was never agreed whether Type V cement, Type II cement, or Type II with fly ash had been used. There was general agreement that the strength was 2500 pounds or less. The plaintiffs argued that if Type V or Type II cement was ordered, that should have put the supplier on notice of sulfate conditions, and that a .70 water/cement ratio was not appropriate, so the producer had failed in his responsibilities. The defense argued that there was no damage to the concrete and no evidence of sulfate attack.The judge rules
Judge Velasquez ruled on Dec. 19, 2005, that “the plaintiffs and cross-complainants (homeowners) did not carry their burden to prove by the preponderance of the evidence that the concrete supplied in the construction of their homes by the defendant and cross-defendant (National) was defective,” the judge wrote.
They did not prove the concrete was incorrectly proportioned or contained the wrong type of cement. Finally, he ruled there was insufficient evidence that the concrete was damaged by external sulfate attack.
The judge's ruling contains a thorough explanation of sulfate attack, with details about the pattern of cracking, angles and shapes of cracks, and the appearance of their edges. He also notes that discovering various symptoms of sulfate attack is not enough; they must be “observed to be operating in relationship to one another.”