The successful defense of the integrity of concrete used in a California development is considered a crucial courtroom win for the entire concrete industry and a setback for those who would profit from sulfate damage anxiety.
But no one is certain the victory constitutes real change in the legal landscape.
In the face of uncertainty, industry leaders are suggesting contractors protect themselves against frivolous lawsuits by becoming more educated on the issue and possibly by routinely exceeding building code requirements to ensure compliance.
Filed as Castron et al vs. Fieldstone et al, the 2002 southern California case stemmed from sulfate scaling on concrete foundations of homes in a Mission Viejo development in Orange County. Homeowners and their attorneys claimed the cosmetic scaling was exterior evidence that the foundations’ interiors had been structurally damaged and rendered defective by sulfate invasion from the soil. The homeowners asked for payment of approximately $265,000 per housing unit from National Ready Mixed Services Inc.
At the end of the 10-month trial, Superior Court Judge David Velasquez sided with the concrete company and ordered each of the homeowners to pay approximately $26,000 to help cover the expenses incurred by the company in defending itself. Considering the company’s attorneys earlier had offered each homeowner $3,000 to settle the case, the verdict was a costly turnaround in fortunes for the plaintiffs.
Significantly, Velasquez rejected several tests offered by the plaintiffs’ attorneys to prove damage to the concrete, concluding that technical experts could not validate the tests.
“Plaintiffs relied in large part upon scientific evidence, the general acceptance of which was highly contestable,” Velasquez wrote.
Industry critics of such tests call them “junk science,” meaning that they lack scientific integrity and seem to be cobbled together to reach a desired outcome. Yet the fact that what could be called spurious tests found legal standing in previous courtroom settings testifies to the murkiness of the issue and leaves the door open for legal exploitation.
The ABCs of Sulfate
Sulfate is a mineral salt compound — an oxidized form of sulfur. It is not an exotic substance and is commonly found in soils that are of marine origin. Most of the sulfate attacks associated with such soil are located in the region near the West Coast. The sulfate usually appears in the forms of calcium sulfate, sodium sulfate or magnesium sulfate. Experts said the calcium variety is the least aggressive of the three kinds of sulfates and magnesium the most aggressive.
Sulfates are soluble. It follows that water from rainfall or irrigation easily can pick up any sulfates that naturally exist in soil under a structure and transport it into the pores of concrete slabs or foundations. Once inside, the sulfate can trigger destructive activity by causing leftover compound material called monosulfate crystals to become ettringite crystals. The process expands the crystalline mass, which can induce cracking in the concrete.
“The tensile strength of concrete is so low that anything that produces expansion in concrete tends to be a deterioration mechanism,” said Terry Collins, concrete construction engineer of the Portland Cement Association.
Cracking and destruction are worse if high levels of water are part of the concrete solution. When a concrete ready-mix uses minimum amounts of water, the resulting concrete, once cured, is less permeable than a concrete mix more awash in water.
“So cement type becomes very important,” Collins said. “A high water-to-cement ratio concrete is very permeable and is not going to be durable in a sulfate environment.”
However, the concrete industry some years ago recognized this vulnerability of concrete to attack by soil sulfates. It subsequently began to produce a Type 2 and a Type 5 cement. Type 2 caps the percentage of tricalcium aluminate — which can produce ettringite — at 8 percent; Type 5 cement further limits the tricalcium aluminate to a maximum of 5 percent.
“In short, sulfate attacks can be a real problem. It is not a made-up mechanism of distress,” said Geoffrey Hichborn Sr., a civil engineer and principal member of Hichborn Consulting Group in Orange, Calif., “but the industry learned how to deal with sulfate attacks.”
Hichborn was consulted in the Castron case. His testimony was instrumental in having questionable scientific testing tossed out by the judge. However, the consultant acknowledges that sulfate damage to concrete is possible, citing the “definite damage” found in pier and grade beam construction elements of a house in California involved in another case.
“In that concrete, we positively confirmed that sulfate attack was occurring and that the concrete in the crawl space of the home was weakened by it,” he said. But, Hichborn noted, the house was 60-plus years old.
“Most recent litigation and virtually all residential litigation that has to do with tract construction has a statute of limitations of 10 years,” he said. “So virtually all the sulfate litigation in the last 10 or 12 years has involved houses generally constructed in the 10 years prior to filing of the lawsuit.”
In other words, the residential concrete generally taken to court is sulfate-resistant, which should preclude most defective concrete lawsuits.
“Of all the litigation we have seen, all of the concrete has been formulated with Type 2 and Type 5 cement,” he said.
What helps to keep the suits alive is the questionable way the concrete is tested for the benefit of juries. A principal tool is the electron microscope, which creates images that are unrecognizable and, thus, wholly dependent upon interpretation. Plaintiffs’ attorneys often interpret the images as microscopic evidence of wholesale destruction of cement that has an inappropriate cement-to-water ratio. Defense attorneys disagree.
Though evidence produced by the electron microscope appears to be losing some of its weight in the courtroom, it has persuaded numerous nervous concrete suppliers and their insurance companies to settle out of court.
Another evidentiary tool to which Hichborn objected in the Castron case was a SIMCO computer model. It purported to take a concrete specimen’s environmental and materials data, assign parameters to water flowing through the concrete, simulate a sulfate attack and predict when the concrete would fail. Judge Velasquez ruled that the computer model didn’t meet the standard of accepted science in such matters.
What adds to the complexity of the issue is that factors besides the sulfate itself seem to affect the life of concrete. Tests conducted by the Portland Cement Association for more than a decade concluded in 2003, and showcased these other factors. The tests indicated that concrete repeatedly exposed to a sodium sulfate solution and then dried out is far more apt to be attacked by the sulfates than is concrete continually submerged in the same sulfate solution. The wet-and-dry sequence itself seems to incite the sulfate attacks. Variable temperatures also seem to be a factor in deterioration rates.
So the answers to sulfate attacks do not come easy. Two prominent authorities on concrete are Adam Neville and Robert E. Tobin. Neville is an international consultant whose headquarters is in London; Tobin a Wyoming native who, upon his induction into the University of Wyoming college of engineering hall of fame, was described as “the ultimate concrete technologist.”
In 2004, the two men volunteered the view that the industry’s “knowledge of sulfate attack on concrete is woefully inadequate.” Even so, they see no credibility in the lawsuits. Last year, they concluded in a piece for Concrete Construction that, “with the exception of a handful of problematic homes, we found no damage caused by, or consequent upon, sulfate attack … So, the situation is that, in homes 10 to 20 years old, no structural damage has occurred and no concrete needs to be replaced.”
Suits Mostly in California
Estimates of money paid so far by the industry in court awards and pre-trial settlements ranges from $300 million to $1 billion, nearly all of it in California. There seem to be two reasons for the concentration of cases in that state: geological and legal.
“Every region has its own local geology,” Hichborn said. “In California, much of the geology that was laid down was sedimentation from the seas. Sea sediment generally contains sodium sulfates; other environments are less commonly associated with sulfates in the soils.”
His statement suggests the sulfate threat in the United States is a coastal problem. Yet in previous epochal periods, oceans ranged far inland in what is now the United States. They did so apparently without leaving behind the residual sulfate material that is generously evident in some regions of California, which seems to be the mother lode of sulfate. Though Tobin has found sulfate incrustations on concrete in Montana and Wyoming, the presence in those locations has been purely cosmetic.
Sulfate attacks are virtually unknown on the East Coast, at least in the experience of some contractors who would know if it were a common phenomenon. Brent McMahon, who oversees business development for Miller & Long Concrete Construction, said he only has “heard about it in a theoretical sense. I’ve not seen anything like it.”
That is significant because the Bethesda, Md.-based Miller & Long is the largest concrete contractor in the United States.
“I have yet to hear about it (sulfate attacks) around here,” McMahon said, “and I have asked folks in the engineering department and they haven’t seen anything about it. If it were around here, at least we would have heard about it.”
Will Atkinson at Tri-City Contractors Inc. in Raleigh, N.C., expressed similar unfamiliarity with the sulfate issue. Tri-City specializes in concrete walls and basements, waterproofing and poured flatwork. Said Atkinson in response to an inquiry about sulfate damage: “I haven’t seen any sign of it around here.”
No Harm to Concrete Roads
Though miles of concrete are placed next to soil in roadway pavement projects, sulfates also have had little impact on that industry, according to Robert Rodden of the American Concrete Pavement Association.
“At this point, it is pretty rare in pavements,” Rodden said. “Because we know the soils, we act to remediate any problems that could happen using Type 5 cement.”
Rodden, the association’s director of technical services, said that in instances where soil surprises the engineers and the unexpected occurs, it is “generally speaking more of a cosmetic issue around the jointing and doesn’t affect the whole cross-section of the roadway.” In such cases, a contractor is able to mill out the sulfate-damaged joints and pour new concrete in the localized area.
Such occurrences are “not common,” Rodden said.
Neither are legal challenges. “This [sulfate damage] is not one of the top 10 issues we are being asked to address.”
The other factor that concentrates sulfate damage lawsuits in California is the aggressive activity of construction defects law firms, including Kasdan Simonds Riley & Vaughan LLP. Kasdan Simonds has won millions of dollars for homeowners over claims of sulfate damage. Because the firm also has an office in Phoenix, Ariz., some concrete industry leaders expect similar sulfate courtroom challenges to migrate across the border.
The law firm’s Web site lays out its basic premise on the issue: “In the past few years it has become increasingly obvious that the foundations of many homes and other buildings in certain regions of California are slowly, irreversibly being destroyed by a white, powdery substance called sulfate.” The site goes on to speculate that “…possibly tens of thousands of homes, apartments and condominiums along the coastal and inland areas of California are built on sulfate-laden soils that can, under certain conditions, destroy the concrete foundations.”
The prospect of lawsuits emanating from “tens of thousands” of homeowners is what keeps Kasdan Simonds and other California attorneys working the issue. Robert Garbini, president of the National Ready Mixed Concrete Association, believes the “opportunistic” nature of the issue is fueling the legal engine.
“We’ve been watching this whole situation. Let me just say this: if you look at the number of lawsuits, the majority come from one particular law firm… You have got one guy who is pretty skilled at scaring the heck out of people.
“Every time you get a new judge or new jury, there is nothing like going before a jury and saying, ’Look at these cracks’ and ’These houses are going to fall down.’ There is no truth to that,” Garbini said. “The judge in this last case (Castron) finally did say, ’Hold on a second. What is going on here?’”
What’s going on?
Kenneth Kasdan, the principal partner of Kasdan Simonds, said his company simply is trying to exact a new sense of responsibility from concrete construction companies. Kasdan’s firm — which has been involved in more than 100 sulfate lawsuits — was on the losing side in the Castron courtroom battle. However, he noted that the developer, subcontractor and one concrete supplier in the dispute settled with his clients before he faced the other supplier in court.
Kasdan said in a telephone interview from his Irvine, Calif., office that the industry is wrong to say there is no sulfate damage problem today. He said that it does exist and much of it is a consequence of failure to meet construction codes.
“Contractors should be paying much closer attention to code requirements, particularly in areas where we have sulfate soils,” he said. “They should be paying much more attention to cement-to-water ratio, to durability. They just need to pay attention to the codes.”
He added that he believes there have been “plenty of attempts to get the code relaxed and I think that is a gross disservice to consumers of a product.”
Kasdan faulted the concrete industry at various levels for knowing the performance of its product, yet willfully using unsuitable types and mixes of concrete.
“For them to bring in — in a sulfate environment — a cement with a [high water-to-cement] ratio is a disgrace. The solution is simple: provide high-quality, durable concrete.”
As for the cost of durable cement, the attorney uses the example of a client of his who received two bids for his home, one bid using sulfate-resistant cement, the other with ordinary cement. The difference was $143, Kasdan said.
“That is the cost difference. The average home in California costs $500,000. Would you pay $143 more for durable concrete?”
More than one industry official has said that not a dime of the millions of dollars won in judgments against concrete producers and suppliers has been used to repair the “damaged” homes, which suggests that no real damage has occurred. Kasdan wholly rejects that view.
“Developers say that, but they simply are lying. I have homes that have had footings replaced, foundations replaced, slabs replaced,” he said. “They can live in their Never Never Land, but if they provide bad concrete, they are going to be sued.”
Issue Will Remain on Table
Whether rooted in geology or legalism, the problem of sulfate damage challenges is not disappearing any time soon. Industry leaders caution against contractors relaxing in the glow of the Castron case outcome.
“Each company has got to make its own decision on these things,” Garbini said. “As an industry official, I can’t say [because of anti-trust implications] that we need to band together. People simply should educate themselves about the issue, be prepared, have good technical information.”
To help Ready Mixed Association members access information, Garbini and staff have created a legal resource center to place in one location all materials on the various lawsuits.
“The depositions, the deliberations, the expert testimony — all of it is public information. There is nothing proprietary about it.”
Garbini doesn’t hold out much hope for legal reforms that would reduce frivolous lawsuits.
“People talk about that all the time, but they have talked about it for years. We can’t seem to get any real substantive litigation that curbs damages and so forth.”
Geoffrey Hichborn, the civil engineer and consultant in the Castron case, recommends that builders over-build.
“For new construction, because the threat of concrete litigation is so high and so common, many of the builders have elected to utilize concrete that plaintiffs claim the code requires… We don’t believe that code section applies to the concrete, but if the developer uses substantially more expensive concrete, a plaintiff no longer has an argument. So the first way to avoid this problem is to build with more expensive concrete and pass those costs on to future homebuyers.”
Hichborn also has devised a barrier that “encapsulates and isolates” concrete in sulfate soils. It is a water-proofing material that is injected through holes in an existing concrete structure to protect it from water-borne sulfates. However, he said the technology is being used “very, very sparingly.”
Terry Collins, the concrete construction engineer of the Portland Cement Association, seems torn between what he deems to be unworthy lawsuits and the responsibility of contractors.
“I can’t speak for the association, but my position is that, typically, until you can show me damaged concrete, I am not comfortable that litigation is appropriate.”
That said, Collins believes contractors should face reality.
“In California, people are suing because someone reports not getting concrete that complies with a code. From my standpoint, it is up to the builders to consider whether they are going to meet the requirements of a code, or risk sometime in the future having to go in and pay the huge costs of mitigating the problem. They squeak pretty loud now about spending extra money on the cement, but they will squeak a lot louder 20 years or so down the road having to mitigate.
“I’m never going to argue the code inasmuch as it is tied to life safety issues. That’s what engineers are here for, to assure life safety.” Still, he adds, “until there is damage, litigation is not appropriate.”
Collins also said contractors should not hold out hope for a new cement product that will solve the issue.
“I am not aware of any research and development to make a magic bullet for this issue. Nor do I see it as necessary with appropriate designs and current state-of-the-art materials… You either make really good concrete or you leave the concrete susceptible.” CEG