Are You Ready to Rumble Expert Investigation and Case Management In - - PowerPoint PPT Presentation
City Center: Are You Ready to Rumble Expert Investigation and Case Management In Litigation Over the Biggest Privately Funded Project in U.S. History CLSA NOVEMBER 30, 2017 -- NEW YORK CITY IN ONE CORNER -- PETER SHERIDAN AND LANCE COBURN
CLSA NOVEMBER 30, 2017 -- NEW YORK CITY
IN ONE CORNER -- PETER SHERIDAN AND LANCE COBURN (FOR MGM/CITY CENTER) AND IN THE OTHER CORNER -- GEORGE OGILVIE (FOR PERINI BUILDING CO.)
Capped at 26
Demolished
OWNER EXPERT INVESTIGATIONS HOTLY CONTESTED
➢ Owner’s Position: Defects Caused By Contractor/Subs Stopped Harmon; C’or/Subs Not Receive Final Payments Because of Offset ($400 mm)
Insufficient and Defective Design By Engineer (rebar would not fit); Stop Due to Economics, Not Defects; Owner’s 3d Party Inspector Approved; Right To Repair; Subs Need to be Paid
9
W11 W4 W10 W3 W17 W16 W1 W6b W6a W7a W7c W7b W9c W9a W9b W13 W12 W14 W15 W2 W5 W5 LB10
Shear Wall, Typ. Link Beam, Typ. Floor Slab Column Shear Wall, Typ.
Link Beam Locations
Bar Missing Tie Bar hooks cut
Interior ties missing
GENERIC LINK BEAM CROSS SECTION AS- DESIGNED VS. EXAMPLES OF ERRORS (1-4)
LB11, Level 6 Reveals
longitudinal bars placed high
19
CONSEQUENCES
Wind Load – Deformed Shape As Designed (Exaggerated)
= Lateral Deflection (Drift) = 8.0 inches Shear Wall W17 Shear Wall W16 Link Beam LB8 and LB12 Between W17 & W16 Each Floor Level
Wind Load – Deformed Shape As Built (Exaggerated)
= Lateral Deflection (Drift) = 69.9 inches Shear Wall W17 Shear Wall W16
➢ Five Rounds of Inspection and DT Occurred from 2008-2011 ➢ Early structural engineer-directed DT by contractor (pre-Phase 1); next three phases
were court approved and tested 236 of 1680 structural elements.
➢ Locations for testing, chosen not based on a “blind draw” but “based on their
structural significance,” revealed the defects were “random” (contested by Contractor) with no discernable “pattern of defects” other than defects found in the same elements (link beams, columns, floors, shear walls, etc.)
➢ Using statistical extrapolation, the Owner’s expert opined on how the Harmon would
perform in a seismic event.
➢ISSUE – None of the pre-Sept. 2012 testing had been done on randomly selected elements ➢Nevada Rule – As a “gatekeeper” a judge in Nevada must decide if an extrapolation is based on a “statistically valid and reliable representative sample.” ➢Court Order – “the manner in which the tested locations were chosen renders it impossible” to decide that the sample used was “a statistically valid and reliable representative sample that would be appropriate to present to a jury.”
➢Testing Dates: Phase 4 -- March to May 2013 ➢Sample Size Before Phase 4: 236 of 1680 ➢Sample Size During Phase 4: 1200 (random) of 1704
➢282 page Guide for Testing Locations ➢1500 page Protocol
➢Results from Fourth Round Testing: 7294 Observed Defects ➢Parties Analyzing Impact of Defects in Two Dramatically Different Ways – Owner Looking at Impact to a Completed 48 Floor Tower; Contractor Looking at Repair to a 26 Floor Tower
➢Results from Fourth Round Testing: More Defects Observed than Even Prior “Extrapolation”; Random Selection Confirmed Prior Opinions ➢Contractor Arguments: Extrapolation based on Random Test Locations, however, Owner’s mistakes permeated testing area size, recordation of results, definition of defective (out-of-tolerance versus “condition compromising the primary function of the structural element”), and emphasizing numbers as opposed to severity of defects ➢Final Order: Testimony Allowed on Results of Phase 4 with Contractor Ability to Cross-Exam on All Prior Expert Work
➢ Documents Exchanged = 28 Terabytes (28,000 Gigabytes) ➢ 200 Non-Expert Depos over 300 days ➢ 50 Expert Depos over 100 days ➢ 3.2 Million Trial Exhibits (Can You Believe It?) ➢ Critical Immediate Issue = Hundreds of Unpaid Subs ➢ Solution: Two Tracks ➢ Resolve Liens (other than Contractor) ➢ Contractor Claims vs. Owner Claims/Offsets
➢Monthly Status Conferences at which All Pending Motions are to be Heard ➢All Related Cases Including Lien Foreclosure Consolidated for all Purposes ➢Two Tracks Created ➢No Discovery Except As Allowed by CMO
➢Identify Subs Allegedly Responsible for Defects ➢Identify Undisputed Sums Owed Subs ➢Contractor Lists All Subs with Claims ➢Contractor Deposits All Documents re These Claims ➢Owner Identifies All Subs With No Defects
➢Owner Identifies All Subs With Defects and Scope Issues
➢ Uncontested Amount Due For Each Component With No Defects ➢ Uncontested Amount Due For Each Sub ➢ Describe Defective Work, Precise Location, The Contract/CO Governing this Work
➢Contractor Creates “Close-Out” Packages ➢Subs with No Defect or Scope Issues File Partial SJ Motions
➢Special Master Appointed to Handle All Discovery Disputes ➢Nevada Rule 16.1 Initial Disclosures (Correlate to FRCP 16) ➢CMO Attached Master RFPs and Commanded Exchanges of Statement of Damages and Witness List (16.1) ➢Visual Inspections on Two Days’ Notice
➢All DT Must be Approved by Court Prior to Start ➢Limit of 120 on Additional RFPs, Rogs, and RFAs ➢Seven Month Limit on Issuing Subpoenas to Third Parties ➢Final Notice of Defective Work Due Six Months Later ➢Trial Contemplated 15 months after CMO Issued
QUESTIONS?