Klemke Trial Testimony – Part 1 of 2

Tim Valine

March 16, 2017

902

This scenario involving the expert testimony in the Klemke matter, to be clear, is only from the general contracting expert’s point of view. The knowledge TVCI had acquired through investigation of this matter, is from a construction view point. There were several attorneys, paralegals, experts in other disciplines and first hand witnesses who testified on behalf of our mutual clients, the general contractors, that deserve the majority of the credit for the outcome of this case. Of course, the clients who performed their contracted work correctly and within the standard of care for general contractors deserve all of the credit. Sometimes explaining what is, is, can be more difficult than explaining away others misplaced, inaccurate or unfounded criticisms.

The plaintiffs claimed that they had been damaged/ injured from exposure to open laboratory acid waste pipes in the Bioscience Building at UCSD. The claim was that as a result of a tenant improvement performed by the general contractor and a few select subcontractors, inadvertently glass acid waste pipes were left open on the ends at two locations in the lab. The gases that escaped from the pipes while the plaintiffs were occupying and working in the lab caused the alleged injuries.

Noxious odors were tracked down by UCSD personnel, the two locations were identified as areas where work was performed as part of a 2005 lab remodel and the pipe ends were in fact found to be uncapped. Case work and plumbing work had been completed in the areas where the uncapped pipes were located.

The case was set for trial, with the plumbing subcontractor’s counsel leading the legal efforts in that they were the party allegedly whom left the pipes uncapped. The case work (cabinets and shelving) contractor was also a main target in that they allegedly covered the uncapped pipes by placing new cabinet boxes, filler panels and counter tops per plan but obscuring visibility of the open plumbing lines. TVCI represented the TI general contractor, the GC counsel, as was TVCI, along for the ride leading up to trial with the subcontractors taking the lead in the trial prep, exhibit binders etc. As in all best laid plans, everything went awry when, at the TRC, the subcontractors settled leaving the GC counsel and experts to prepare for trial in a few short weeks/days.

TVCI had performed inspections way back at the beginning of the case, March 2011, shot photos at the site, listened while the plaintiffs and their counsel illustrated what had occurred at the lab that caused the alleged injuries. At the site inspection there were mechanical engineer experts, architectural experts, general contractor experts, as well as a few MD experts. They were analyzing and evaluating where the scope of work was performed in the 2005 era in relation to the hidden open pipe ends. They all pretty much had concluded the pipes were in the areas where the remodel work was performed. So, generally, they all had accepted the conditions as caused or that came into existence during the 2005 tenant improvement project by our clients, the general contractors.

Many questions still remained, which TVCI was not asked to evaluate, in that they are outside of our expertise. Some of these subjects include, can exposure to noxious odors cause injury/damages, temporary, permanent or otherwise. What was coming out of the open pipes exactly? What evidence exists that anything dangerous or harmful to human health ever did come out of the open pipes? What evidence exists that the plaintiffs were harmed? On and on, many questions were going to go to the jury. TVCI was focused on the issues we can opine on and within our designated expertise. This was a simple formula, understanding the specifics of the work to be performed based on the plans, the contracts, the testimony of persons most knowledgeable from the construction time frame and the physical evidence left on and at the site at the time of our inspections.

Sometimes the smallest, seemingly most insignificant observation, photo, whatever, can lead to a monumental epiphany, changing the course of a thought process, outside the box thinking that brings into question the given accepted understanding of everyone in the case. Now, convincing the attorneys we were working with and the jury is another thing all together.

Our intent was to determine logically how this could or did occur first, because re-creating how it happened can help in evaluating allocation of fault i.e. who did what wrong first, then chronologically anyone who further contributed to the situation, covering it, hiding it, ignoring it etc. To further complicate these considerations, there was a major building remodel in the 2000-2001era, that included work in both of the lab areas where the pipe ends were found to be uncapped. A much bigger project and a much more involved full building remodel had taken place that had nothing to do with the parties involved in this matter. So now our goal became just as before but instead of understanding the specifics of the work to be performed based on the plans, the contracts, the testimony of persons most knowledgeable from the construction time frame and the physical evidence left on and at the site at the time of our inspections from the 2005 era, we also needed to know the same about the remodel that occurred in the 2001 era.

One location where the pipe end was left uncapped was easier to explain as to how and why the pipe end would have been left open than the other. Starting with the easy one, this pipe was behind cabinet boxes and drawers almost four feet away from where the contract scope required a new cabinet box and an under counter knee work space lining. The knee space also included an electrical outlet under the counter. Off the left of this new work space was a series of drawers and cabinets that were from original existing work, not part of the 2005 remodel. The back of these cabinets is set away from the wall, they have a false back leaving 5 – 8 inches between the back of the cabinets and the plaster covered walls. This space is for running plumbing pipes, gas lines, vacuum lines and electrical conduit.

Though the 2005 work was to be done 4 feet to the right, the plaintiff’s experts still suggested, in fact, testified that the pipe is made up of pre-established lengths and that someone in the 2005 work had removed a length that interfered with the new cabinet box. The experts testified that whatever length of pipe that was previously connected to the open end, used to run into the new cabinet area and must have been removed because it interfered with the new cabinet work location. Suggesting that they then either forgot to cap the open end or intentionally left it open.

There is no reasonable or logical explanation for any worker, party, subcontractor, or for anyone to leave the pipes open on the ends. If the plumbers found uncapped pipes that needed to be addressed or capped, the plumbing firm wrote up a change order and they got to bill for the extra, something like $390.00. If the cabinet guys found it, the pipe would not be within their scope of work, but they would simply alert the TI general contractor, the plumber or the school inspectors, where again the plumber would write up the extra, and on they would go. The trades and the general contractor make more money as these extras add up, so what the plaintiff’s expert was suggesting is counterintuitive.

The TVCI approach at this location was simply proving that the addition of the new cabinet knee space area and electrical conduit or box did not expose the open end of the pipe because it was behind cabinets that were not removed as part of the 2005 scope of work. The plans were specific to this set of facts, the cabinets covering and obscuring the observation of a plumbing pipe end open, and not capped, had clearly not been removed or disrupted through this construction era. No plumbing work at this location based on the plans and scope and no cabinets removed or disrupted at this location was a simple basic pitch, we added some sarcasm to reinforce our view and opinion. I followed the plaintiff’s expert’s suggestion that someone had uncovered the 4’ pre-established pipe length that had intruded into the new knee space area with a cap on it or not, but that the individual had removed it for whatever reason. I queried, so what did the tradesperson do with the extra 4’ piece of glass pipe? If the tradesperson supposedly was so irresponsible that he did not report that the pipe was intruding into an area he needed clear, instead of reporting the issue up the chain, he would have to cover his tracks by somehow hiding the 4’ piece of glass pipe. I explained to the jury, does he think the guy put it under his coat, or hid it in a can of demolition debris? All of this just to avoid what? Making more money for the companies they are working for? The suggestion that someone, during the process, had observed the uncapped pipe and told no one, made no sense. I even got a little chuckle out of the jury when I suggested the culprit hid the pipe under his coat on the way out the door at the end of his shift.

Review the photos TVCI captured and some of the trial exhibit photos. They will help illustrate what was visible or obscured, new cabinets or old, as well as a few more details that our expert eyes focus on.