Construction defect expert witness swimming pool spa

In-ground swimming pool expert witness Paolo Benedetti - How a construction defect expert can keep you out of court.

Avoid Litigation

An expert should have as their primary purpose - honest representation of the facts and settling the dispute without litigation.

Face it, no one wants to litigate the facts of a dispute and leave the decision to an uninvolved third party (mediator, arbitrator, judge or jury).

Just the Facts 

If the facts are clearly stated along with the supporting code or industry standard, then the parties are likely going to settle.  A defendant would be foolish to litigate a case and exposed themself to punitive damages when construction defects are clearly detailed.

Most cases are settled out of court once the damages are agreed upon.  Once the responsibility for the defects has been assigned, then the expert must determine the repair or replacement cost.

Determining the Costs of Repair  

Sometimes determining the costs of repairs is relatively straight forward.  But on complex cases where the entire project must be removed and an entirely new project must be built, determining the exact costs is based upon the experts experience.

Why can't exact costs be determined?  The specifications for the replacement project have not been defined.

If the original project was not built to code and was devoid of soils reports, proper engineering and code compliance, then these will need to be incorporated into the new project.

To determine a repair or re-constructon budget the expert will use their experience to estimate the cost of correctly building a like project.  

The plaintiff may even be liable for a more expensive replacement & modified project.  Why?  The new project may differ because it will now include code compliant construction, materials and details that were originally omitted or are now required.

How can the plaintiff be liable for meeting new codes and standards?  If the plaintiff hadn't initially created a defective project, then the project would not be subject to reconstruction... and therefore not subject to the current codes and laws. 

Hire an expert witness who will assist you on staying out of court! 

Paolo Benedetti 
Aquatic Artist, Consultant & Construction Defect Expert Witness 
"Creating water as art."™ 
Aquatic Technology Pool and Spa 
©www.aquatictechnology.com

Ceramic Tile Faulty Installation Swimming Pool Expert Witness

Faulty ceramic tile installation in swimming pool is forensically investigated by expert witness Paolo Benedetti.

Standards to live by 

The workmanship standards for ceramic tile installations in swimming pools are published by the TCNA, ANSI, and various aquatic organizations.

Some states have published MINIMAL acceptable workmanship standards, tolerances & variances.

Benchmark

These standards become the benchmark by which a project is judged.  The tolerances and variances are compared to what was done in practice.

As the project is disassembled, the various layers are analyzed for proper materials, application and workmanship.  
Were the layers the correct materials for the intended use?
Are they the proper thickness?
Were they installed correctly (trowel marks knocked down)?
Proper amount of contact or coverage?
Were proper curing practices and times adhered to?

Case Study 

I inspected a faux stone ceramic tile deck.  The joints were uniform and there was minimal lippage.  The homeowner was complaining of a "hollow loose" sound as people with hard soled shoes walked on the tiles.

I interviewed the contractor who described his installation method and materials.  He provided receipts and pictures of his in-progress work to verify his claims.  Everything looked correct...

When I tapped on the tilework with an axe handle, I could also hear a hollow sound.  Granted, some tiles can resonate hollow due to their structure.  But this was bad.  They actually sounded loose, though they appeared to be bonded securely.

With the permission of both parties, I removed some tiles at the edge of the patio.  The problem immediately became apparent...

The gauge marks in the thinset that were created by the notched trowel were not knocked down.  This resulted in the tiles only having 60-70% coverage/contact at best.  Way below the TCNA standards.

The contractor had no option but to remove and reset the entire tile veneer.  It was the right thing to do.  

Had the tile been set correctly, then the sounds would have been blamed on the structure of the actual tiles.  The contractor would have been vindicated.

Litigating an obvious error only wastes time and money, makes attorney's wealthier and creates ill-will with the client.  In this case clear minds prevailed and the contractor did the right thing.

Paolo Benedetti 
Aquatic Artist, Consultant & Construction Defect Expert Witness 
"Creating water as art."™ 
Aquatic Technology Pool and Spa 
©www.aquatictechnology.com

Expert Witness Swimming Pool Spa Construction Defect Litigation Mediation

Swimming pool and spa expert witnesses always need to be looking out for the client's best interest!

Always "ON"

An expert witness needs to always "be on."  They must be smart when gathering information for a client or a case study.  

If they are posting questions in an on-line OPEN FORUM (that appears in internet search results), they can potentially compromise their integrity as an expert witness.  If the client's situation ever results in legal proceedings (litigation, lawsuit, arbitration, contractor's licensing board), their credibility may be called into question.  An attorney will have a field day with that! 

If the expert doesn't know something, for goodness sake don't broadcast it around the globe.  Worse yet, don't rely upon the free opinions of any fool with a computer.

Don't be afraid to ask for help

No matter what credentials an expert witness has, a court will not put much faith in an "expert" that solicits data, information or opinions in public forums.  If something is beyond an expert's scope & personal knowledge, then they must be willing to admit that.  The client should always be prepared to hire another more qualified "expert" to assist.  Frequently, facets of a case study become so focuses, that specialized disciplines are required.

I hire geologists, testing labs, structural & mechanical engineers, materials scientists, etc, to assist on cases all the time.  Clients are told in advance, that the assistance of additional experts may be required as the facts are revealed.

Private Communications

Care must be exercised when gathering opinions, scientific data and research materials.  The specific identifiers of the client, case or location should be avoided.  Telephone calls, private messages & direct emails should be used, instead of "open public forums," blogs, groups or websites.

Legal Strategy

At the point of initial contact, the expert witness must ascertain if the client is involved in a potential legal situation (or that may develop into one in the future).  If litigation may result, the expert witness is best off hired by the client's attorney and NOT DIRECTLY by the client. 

This has important legal consequences!  When under the attorney's employment, any work the expert does under the direction of the attorney, becomes "the attorney's work product." 

The attorney's work product IS NOT SUBJECT to discovery.  The client may not want to disclose some or any of the expert witnesses' findings.  The attorney won't have to reveal the experts findings - if the findings are not in the clients' best interest.

Internet postings & discussions are in the "public domain" and can come back to haunt the expert, because they NEVER go away. 

Paolo Benedetti - Aquatic Artist, Consultant & Construction Defect Expert Witness 
"Creating water as art."™ 
Aquatic Technology Pool and Spa 
©www.aquatictechnology.com

Cracked glass tiles - Don't always blame the installation!

Swimming pool and spa expert witness, Paolo Benedetti discusses cracked glass tile and why it is not always the fault of the installer or installation practices.

Material Defects

Tessellated stresses and microstresses (cracks, cracking and stress fissures) in glass tiles and mosaics that contain recycled glass as a portion of it's formulation, are problems that many tile mosaic manufacturers simply do not understand or want to admit.  Most are not even willing to subject their tiles to any thermal shock performance testing. They bury their heads in the silica... hoping that the problem will go away.   It won't... 

If the manufacturer's never test their tiles for thermal expansion stress cracking, then they can continue to "play dumb." This allows them to "blame" the installation, because they know that it will be difficult and costly for an installer or property owner prove that there are materials or manufacturing issues. However, the underlying problem actual lies in their manufacturing process and/or the improper mixing of dissimilar materials.

With so many companies jumping on the environmentally "green" bandwagon, many are manufacturing products that are not durable. They simply do not understand the material science and physics of glass.

It will only take an Act of Congress, Consumer Product Safety Commission, a State Attorney General or a Class-Action Lawsuit to enforce minimum quality and performance standards upon these manufacturers.

Lack of Quality Control and Education

Almost all of the manufacturers fail to understand the importance of a homogeneous mix of virgin materials with the recycled materials. The recycled materials must be mixed thoroughly with themselves and with any additives or raw materials that are added.

If there are portions of the batch that are not homogeneous, there will exist a differential blend of material throughout the finished product. The laws of Physics dictate that different materials have different rates of thermal expansion.

Because these different materials expand at ever-so-slightly different rates, and because glass is not elastic, this stress will cause stress cracking or fissures.

Inconsistent Temperatures

Adding to the problem, is another law of physics. Thermal expansion occurs within matter at a rate in proportion to the temperature. In an installed application there exist temperature gradients throughout glass tile. The surface is heated or cooled at a rate that is faster than the back of the material.

Remember: the back of the material is usually mounted against a cool concrete structure. When the surface of the glass is exposed to the sunlight or swimming pool, it heats up at a faster rate than the back of the tile. 

This "temperature gradient" can cause cracking within the tiles. Coupled with the use of recycled materials and you have the formulation for failure.  The thicker the tile, the greater the problem.

Material Size and Thickness

We've established that there can be a temperature gradient within a singular tile. Physics also dictates that thicker tiles will have greater degrees of temperature gradient than thinner tiles, from top to bottom.

Stresses will be less likely to occur in smaller format tiles (1x1's) than in larger format tiles (3x3's, 4x4's, 6x6's +). Irregular sizes (rectangles, triangles, circles, etc.) can also create unusual stresses within the glass tile. This is not to say that they will not occur in small tiles - they do. Given that a small tile may crack, it is almost guaranteed that larger formats of the same tile will crack.

This occurs because the edges remain cooler than the center, creating gradient temperatures across a larger surface area. On a smaller tile, the gradient is less as the core is closer to the edges.

Thicker tiles also contribute to the gradient temperature issue, as thicker tiles cause "shading" of neighboring tiles, allowing the sides and edges to remain cooler than the core or surfaces.

Add coatings to the glass, and you have further altered the possible temperature gradients, by absorbing or reflecting heat in an irregular fashion.

Unknown Raw Materials

Just because a manufacturer receives all of their "raw recycled glass" from one source, does not automatically mean that it is all the same. If a manufacturer uses only recycled soda bottles from one brand of soda - there is no way on God's Green Earth that they can be 1000% certain that all of the bottles are EXACTLY the same.

The soda bottle manufacturer may change formulations ever so slightly from batch to batch, manufacturing temperatures may vary slightly, or even their raw minerals or suppliers may vary slightly.

Since most manufacturer's rely on the "say so" of their supplier to verify that all of the bottles are the same, there is another source of doubt as to the "quality" of the recycled glass. Because the recycled glass is already ground up (aka: "cullet"), there is no means to test the glass to verify the veracity of their claims. It could have soda bottles, old windows, automobile glass (argh!!!), beer bottles, food jars, or contain labeling contaminates such as cobalt (like is found on Corona bottles).

If there is the slightest piece of heat-resistant glass (borosilicate glass, aka Pyrex) present in the cullet, it will alter the viscosity of the fluid in the furnace when it is remelted.

Add to the variance equation, the fact that there may be multiple suppliers of soda bottles to the bottler - each with their own formulation and raw material suppliers, and you have sufficient material variances to wreak havoc with the performance of glass mosaic tiles.

The recycled glass association's standards allow variances in the cullet mix, proof again that there are contaminates and variables in the "raw recycled glass." 

Here are their acceptable standards:

"PROCESSED (FURNACE READY) FLINT CONTAINER GLASS CULLET SPECIFICATIONS

Composition: Soda-lime-silica container glass.
Container Glass Cullet Colors Segregation: Flint Cullet
Flint 95-100%
Amber 0-5%
Green 0-1%
Other Colors 0-.5%
Total NON-Flint Cullet = <5>Size: Various sizes from whole glass containers to -100 Mesh.
However, the ideal material size is 3/8" to 3/4" with a 10% minimum
of fine particles. Material size is based upon buyer and
seller's agreement.
Contaminant Listings:
Outthrow Materials: Organic Matter, allowable percentage
based upon buyer and seller's agreement.
Prohibitive Materials:
Ferrous Metals
Nonferrous Metals
Ceramics (such as cups, saucers, dinnerware, pottery, etc.)
Other Glass (for example, plate window glass, heat-resistant
glass—such as Pyrex—and lead-based glass—such as
crystal ware, television tubes, vision ware, etc.)
Other Materials (such as bricks, rocks, etc.)"

Unpredictable Results

Most of the models for predicting the performance characteristics of glass formulation rely on multiple regression analysis or by additivity equations. But the primary principle for utilizing these mathematical predictions, is that you know the formulation of ALL of the raw materials - totally impossible when using recycled glass!

As with any quality control procedure, these equations are the same: garbage in, garbage out. Since they cannot possibly ascertain the chemical composition of 100% of the recycled glass cullet, they are forced to either "guesstimate" or use a random sample of the cullet (and assume that it is all the same!). This is where the variability begins... right on the loading dock!

Why so Random?

Because the materials are not thoroughly mixed, it reasons that there are areas of the sheet of glass, wherein there exists higher concentrations of heterogeneous material. Because the mixing may be more thorough in one batch than the next, concentrations throughout the glass may vary, and tiles may be mixed with other batches of the same color, the resultant cracking in tiles will appear to be totally random.

It may not occur in every color or size of the same tiles. It may appear in adjacent tiles or they may appear in isolated tiles. But there is often a major commonality... the cracking is not linear. Tesselated stresses may transfer into an adjacent tile.

However, if the cracks are directly in line with each other and through a minimum of 3 tiles, then thermal stresses are probably not the cause. Linear cracking through multiple (3+) tiles is probably the result of substrate flexing, movement, physical trauma or thinset shrinkage.  This is not to say that tesselated stresses can not coincidentally align across 3 tiles.  There is a statistical probability of this occurring in 2 adjacent tiles, so 3+ has become the rule of thumb.

If the cracks are not through the entire tile, then there is a high probability that it is not installation related. This is "clearly visible" on opaque tiles - if they look like fissures within an ice cube, then they are probably thermal stress cracks.

Remember, the larger the format of tile, the lower the tolerance for substrate movement and the greater the chance of thermal stress cracking. The problem is compounding itself!! Example: A lot of grout joints in 1x1 mosaic tiles across an area are a lot more forgiving than rigid 12x12 tiles!

Larger format tiles are also subject to greater stresses from thinset shrinkage.  The larger area creates greater tension on a large format tile verses a small mosaic.  This has been demonstrated in a number of high quality thinsets.

Getting it Mixed Right

There are a few approved methods to ensure that recycled glass is utilized correctly. However, it requires that the glass formulation is mixed thoroughly.

One method is to actually mix the molten glass with a mixer, something that is difficulty, costly and dangerous. Most manufacturers utilize linear kilns - a conveyor belt within a long furnace. This makes mixing molten glass in this method impossible.

The second method, involves multiple stages and involves grinding the glass multiple times. First the recycled glass is ground as small as possible (cullet). The finer it is ground, the more thoroughly the blend can be mixed. Virgin materials are mixed into the mixer along with the ground recycled glass. This mix is then fired into glass utilizing a linear kiln.

Unfortunately, this is where most manufacturer's end their processing. They form their tiles and ship them out the door.

To ensure that the various glass formulations are thoroughly blended, there are two more stages of processing required.

To ensure a thorough homogeneous blend, the glass that is made during the first stage above, is process again. It is broken up and ground up as fine as possible. This fine pulverized glass is again thoroughly mixed. Now it can be fired and made into consumer ready glass mosaic tiles.

Ensuring that there is a homogeneous mix entails additional processing and a double firing of the glass, which is costly. The production time, energy and labor costs more than double! Therefore, most manufacturers who utilize recycled glass merely skip this step.

Some manufacturer's add chemical that they claim solve the issue of homogeneous blending. However, it is statically impossible to prove that the end result will be a homogeneous and isotropic blend. And since there is a very high probability that the cullet is contaminated, there is no means to chemically treat for all possible variations - Who's fooling who???

Principals Founded in Physics and Material Sciences

These are not my hypothesis or mere suppositions... something that I made up.

These are facts based upon over hundreds of years of the investigation of physics and material sciences. In fact, the phenomenon of glass stress cracking from non-homogeneous blending was discussed in scientific papers as far back as the 1890's! Many organizations have investigated this phenomenon:

National Institute of Standards and Technology
Corning Glass Works
M.I.T.
The American Ceramic Society
SciGlass
International Symposium on Glass Problems and countless foreign entities.

The Lack of Standards and Differential Expansion

The development of tessellated stresses in glass tiles that utilize recycled material will continue to occur, until manufacturers are held to some standard for thermal shock performance.

If they subject their tiles to the CTIOA (Ceramic Tile Institute of America) thermal shock testing (who's tests are designed for ceramic tiles - which do not apply to the performance testing of glass tiles), they only have to submit a mere 5 tiles for testing.  This is not a representative sample of the tile's performance.  Again - simple statistical analysis...

Nor is allowing the testing of ONE size of each product line, representative of the entire products line's performance. Glass of different colors contain different chemicals and formulations, and glass tiles of different sizes perform differently. Given their choice, the manufacturer's will submit clear glass 1x1 tiles, who tests will then be proffered as representative of an entire product line.

Manufacturer's are not required to re-certify or submit subsequent production lots for verification of continued compliance and quality control. As the recycled glass (raw materials) change from day to day, so will the final product's performance - yet they will still be relying upon those initial test results.

The CTIOA testing also tests the tiles in their "loose" unmounted state. Now who buys tiles to throw them loose into a pool? They should be tested in their mounted condition, with approved setting materials. Yes, multiple variables and various manufacturers. At least they'd have testing data for compatible setting materials.

Performance standards for glass tiles are currently being developed.  

And by whom?  A committee of the manufacturers!


Paolo Benedetti - Aquatic Artist, Consultant & Construction Defect Expert Witness 
"Creating water as art."™ 
Aquatic Technology Pool and Spa
©www.aquatictechnology.com

Select the Best Pool & Spa Construction Defect Expert Consultant Witness

How to select the Best Pool & Spa Expert for your project or defect case.

There are 3 kinds of experts in the swimming pool & spa construction fields.  There are practicing experts, professional experts and professionals limiting their liability & financial exposure.

Practicing Experts

Practicing Experts are individuals who are still deriving a majority of their income as swimming pool & spa contractors or construction consultants.  These individuals are at the top of their game, as they are still actively involved in the trade.  They are utilizing modern and state of the art construction techniques, materials and methodologies on a daily basis.

Their active involvement in the construction fields, keeps them appraised of current trends and cutting edge equipment.  Their constant exposure to a multitude of high-end projects keeps them on the cusp of construction technologies.

What they are "doing in practice" defines who they are, what they believe and what they stand for.

Professional Experts

Professional Experts are just that... full-time paid experts.  The problem here may be one of sheer credibility.  They may have been a great builder at a past point in time.  But, there is a high likelihood that they are out of touch with current methodologies, practices, technologies, costs and ever changing codes & standards.  Their budgetary estimations may be outdated, having a basis on historical costs.

Being a professional expert alludes to merely being a "paid prostitute," "willing to say anything for a buck."  There are no current practices or projects which define their work ethic, workmanship, abilities and standards, and which therefore validate their opinions.

Exposure Limiting Experts

Exposure Limiting Experts must remain involved as experts, in order to limit their financial exposure and legal liability for their marginal past practices.

These experts are the most dangerous to a project and pose the greatest risk to the successful outcome of a dispute or litigation.  Many of these experts are "retired" structural engineers or ex-heads of large high volume swimming pool construction firms.  

Their past practices in "volume production" are what pose the greatest risk in the successful litigation of a construction workmanship or defect case.  It is virtually impossible to deliver high quality code compliant construction projects at volume levels.

Therein lies their dilemma as an expert.  They cannot agree that low strength concrete, generic mail-order structural engineering, lack of special inspections and structural engineering not based upon soil conditions are valid construction practices.  To do so, would expose themselves, their past employers, their firms and their past clients to liability and unknown financial exposures.

A structural engineer cannot admit that 1,000's of structural engineering plans that he sold without regard to the soils conditions is irresponsible.  A structural engineer cannot testify that 2,400 PSI concrete is insufficient, when he sold thousands of such mail-order generic plans.  The ex-President/CEO of a large swimming construction company who built thousands of pools based upon those very plans, cannot now testify that soils reports are required to obtain valid structural engineering or that 2,400 PSI concrete is insufficient.

These experts are the most dangerous.  They must protect the firms they used to work for - and in which they may still have a financial interest.  They must protect their professional licenses.  They may make "expert opinions" based upon the potential exposure the answer will create for them - not what is based upon scientific or legal fact.

These "retired" professionals are the ones that require the closest examination.  You may never become aware of their personal "conflicts of interest" based upon marginal past practices.

But other experts will be aware of these conflicts.  And these personal conflicts will be exploited to your disadvantage.  It is what attorney's do!

If an expert's past opinions, construction and business practices were marginal and high volume, then there is a high likelihood that they are not going to be able to act as an "independent expert witness."  In the very least, any "expert opinions" they render will be suspect.  In the very least, their credibility will be called into question.

Practicing Experts are obviously the right choice! 

Paolo Benedetti
Aquatic Artist, Consultant & Construction Defect Expert Witness 
"Creating water as art."™ 
Aquatic Technology Pool and Spa 
©www.aquatictechnology.com

Pools & Spas Expert Witness - Construction & Design Defects

Construction Defects Analysis - What exactly is a "construction defect?"

Concrete swimming pool and spa construction expert Paolo Benedetti discusses what constitutes a "defect" or "deviation."

Exactly what is a defect or deviation?

A "defect" is an aspect of a project that is installed in conflict with any of the following:

• building codes
• local ordinance or law
• industry standards
• accepted trade practices 

A "deviation" is an aspect of a project that is installed in conflict with any of the following:

• manufacturers recommendations or instructions  
• project specifications or designs
• plans
• contractual requirements 

Defects may be further broken down into "lack of knowledge," "installation errors," or "component failures."  Many times there are overlapping causes of project defects - the most common being ignorance that results in installation errors, that then affect the ability of materials to perform properly.

Deviations may affect the performance of materials, the functionality of the project or the project's appearance and finish.  They may eventually cause some sort of failure, whether it be structural, performance or aesthetic. 

A defect is always the result of some sort of deviation.  However, a deviation may not always result in a defect.   For example, if an installation is performed perfectly and the materials fail to perform, then the materials experienced a deviation from the quality standards.

Laws

Building codes are the laws that govern how construction projects are to be designed, engineered and built.  Like traffic laws, how stringently they are enforced is dependent upon the local authorities.  And, just like when there is a traffic collision, various obscure laws may be enforced after the fact... even laws you were not aware of!

Building codes often make reference to or may even directly incorporate various industry or trade standards and workmanship guidelines.  Any referenced standards become a "second tier" of the building codes that are also legally binding.

Local ordinances are laws, codes or requirements that have been adopted by the local jurisdiction.  They create more restrictive standards than those adopted by the broader authority.  An example, is a county that requires stronger glass windows than required by state law.

Industry standards and accepted trade practices only become law when they referenced in an existing code or ordinance.  If there is a dispute regarding workmanship, defects or deviations, then in civil or administrative hearings these are incorporated into the collection of enforceable standards.

Responsibilities

The structural engineer has the responsibility of designing the project to overcome the anticipated loads and to exceed the current building codes.

The contractor then executes the engineer's design.  It is the contractors responsibility to ensure adherance to the applicable codes.  They have the additional burden of ensuring that all work is performed to the highest code or standard that is applicable to any aspect of a project.

When installed materials fail to perform correctly, then the contractor does not bear any liability, provided that they adhered to the highest applicable standard.

This is why, when codes, standards, plans, specifications or manufacturer's instructions are in conflict with one another, the strictest standard shall prevail.

It's all about liability and responsibility!
 
Paolo Benedetti 
Aquatic Artist, Consultant & Construction Defect Expert Witness 
"Creating water as art."™ 
Aquatic Technology Pool and Spa 
©www.aquatictechnology.com