Report Characterizes Consumer Spending on IAQ

Associations Forge Certification Consolidation Plan

By Invite Only, the Summer Feast of the Mavericks

Legal Advice By Michael Bowdoin

Word on the Street 

TEXAS: MOLD IS OLD
The number of mold exams being taken in Texas has dropped fairly steadily since an initial three-month rush to licensure. From January to March 2005, the first three months exams were offered as part of the state’s mandatory licensing program for mold professionals, saw a total of 207 exams administered with 136 passing scores (66 percent). Each month since March, the number of exams administered has noticeably tapered off, with attendance in July reaching an all-time low of only 27 exams split among three categories.

Also notable is the incidence of high failure rates among those taking exams. For instance, a new record was set in July for highest failure rate – 80 percent – for any category in a given month. Of 15 people taking the Mold Remediation Contractor exam that month, 12 failed. However, there is an increased chance of passing for those taking exams after Sept. 1, when a law going into effect lowers the minimum passing grade for mold exams from 80 to 70 percent. Of the 12 test takers who failed the Mold Remediation Contractor exam in July, eight scored between 70 and 79 percent. These star-crossed students would have received official state licenses had they taken their exams two months later!

OLD MAN, TAKE A LOOK AT MY LIFE. I’M A LOT LIKE YOU ...
Children with asthma whose fathers have a history of the disease are at significantly greater risk for serious airway constriction than children whose fathers have no such history, according to an article published in the first issue of the September 2005 American Thoracic Society’s peer-reviewed American Journal of Respiratory and Critical Care Medicine. Reporting the results of a five-year study, researchers with the Channing Laboratory at Brigham and Women’s Hospital in Boston said that paternal asthma was strongly associated with childhood airway hyperresponsiveness (AHR), an exaggerated constricting response to various stimuli that characterizes asthma. “Among individuals with asthma, AHR is directly correlated with pulmonary symptoms and disease severity,” said Dr. Benjamin A. Raby, the study’s lead researcher. “It is also an important determinant of long-term outcome, not only with respect to asthma symptoms, but also to airway growth and maturation, as well as lung function decline.” While other studies have demonstrated that parental history of asthma affects children, the authors of this latest study note that they are “the first to suggest that a parental history of asthma influences the natural history of airway responsiveness among children with established asthma, and the father’s asthma history may be the predominant familial determinate of this relationship.”

A NEW LOOK FOR ASBESTOS REMOVAL
The U.S. Environmental Protection Agency is planning to conduct a study on a proposed “wet method” of asbestos removal next year. The inexpensive process involves “amended water suppression” to “trap asbestos fibers and minimize their potential release to the air,” the EPA said last month. “A technical team of EPA scientists and engineers is being assembled to peer review and further refine the demonstration protocol. A site-specific Quality Assurance Project Plan will be developed. EPA’s Office of Research and Development in conjunction with Region 6 will oversee the study.”

THE SECOND DECADE OF NORA
“For the past nine years, the National Occupational Research Agenda (NORA) has served as a framework to guide occupational safety and health research ...” according to a page on the Web site of the National Institute for Occupational Safety and Health. “Now NIOSH seeks your help in creating the new NORA,” the text continues, sharing ways to garner stakeholder input on goals, objectives and plans for the second decade of NORA. Building Ecology Research Group’s Hal Levin, author of the report discussed on the front page of this newspaper, recently helped to promote the announcement on the IE Quality group with his own personal plea. “There is very little attention to indoor air quality and indoor environment at present,” he posted in the group Aug. 9, “but this could be changed if a sufficient number of convincing and useful comments are received.” Levin continued, “Since indoor air quality is the subject of the majority of requests for health hazard evaulations [sic] NIOSH currently received, it should seem obvious that NORA would focus on indoor environmental health. However, there does not seem to be any clear plan to move forward in the direction of increased focus on the non-industrial indoor environment.”

SCHOOL GETS ITS DAY
A school district in Hidalgo County, Texas, has effectively been reimbursed for a mold remediation project it conducted three years ago at a high school in San Juan, according to reports last month. In 2002, the mold remediation cost the district $10.2 million; the settlement was for $11.2 million. An Aug. 2 report by KRGV News Channel 5 in Weslaco said the Pharr-San Juan-Alamo Independent School District had filed a lawsuit blaming Landmark Organization, the Austin-based construction company that built PSJA High School, for design problems the district says led to mold. The Monitor, a South Texas-based newspaper, also reported on the settlement Aug. 2, citing a prepared statement from Landmark in which the company disagreed with the decision by the panel of judges to force the parties to settle their lawsuit. “It appears that the arbitration panel gave undue weight to the amount of money PSJA school district spent on what Landmark Organization believed to be questionable remedial work,” said a portion of the Landmark statement included in The Monitor’s coverage. Both news sources said the district’s lawsuit also named a number of subcontractors – 44 in all, according to The Monitor.          

Report Characterizes Consumer Spending on IAQ
Findings Show Annual Expenditures May Reach $20 Billion
By Steve Sauer

Americans may spend as much as $20 billion each year on various indoor air quality products and services, according to a conservative estimate recently prepared under a contract with the U.S. Environmental Protection Agency. A report tallying Americans’ yearly expenditures in an assortment of categories related to indoor air quality places nationwide spending on IAQ within a range of $12 billion to $20 billion.

This chart, based on figures in Hal Levin’s report, shows the nine categories of IAQ products and services that comprise the estimated expenditures of $15.9 billion. “Considering the large uncertainties and approximate nature of the estimates, a range of $12 to $20 billion is considered most useful,” Levin states in the report. “It represents roughly ± 25% around the central approximate estimate of $15.9 billion.”

In the months since three membership and certification organizations announced plans to unify themselves and to consolidate their programs and activities, leaders of all three associations have been working to overcome one of their biggest challenges: the consolidation of their certification programs.

Last month, a committee of representatives appointed by the American Indoor Air Quality Council, Indoor Air Quality Association and Indoor Environmental Standards Organization reached agreement on a certification consolidation plan. Under the plan, the certification programs currently offered by IAQA and IESO would be administered by AmIAQ effective Jan. 1, 2006.

“The certification integration is going along very well, and IAQA members will be very pleased with what we come up with,” said Joe Hughes, who is chairman of the ad hoc committee overseeing the transfer of designations to AmIAQ.

The consolidation proposal would further AmIAQ’s use of certification boards, which for years have operated under the auspices of AmIAQ. Each designation administered by AmIAQ, including those carried over from IAQA and IESO, would have its own certification board made up of industry peers.

The boards award AmIAQ certification based on a number of criteria including education, experience and testing. Persons seeking certification by AmIAQ may challenge the association’s exams and achieve certification if they meet program requirements and gain board approval.

These boards are responsible not only for awarding certification but also for overseeing exam content. As a way of avoiding conflicts of interest, membership of these boards does not include the training providers for certification-preparation classes.

IAQA and IESO officials have agreed that their certification programs will be operated under these policies and procedures previously established by AmIAQ.

Currently, IAQA offers two certification programs: the Certified Indoor Environmentalist (CIE) and the Certified Mold Remediator (CMR). IESO currently offers one certification program, the Certified Residential Mold Inspector (CRMI).

AmIAQ currently offers certification under seven different programs for IAQ professionals, mold assessors and mold remediators: Certified IAQ Consultant (CIAQC), Certified IAQ Investigator (CIAQI), Certified IAQ Manager (CIAQM), Certified Microbial Consultant (CMC), Certified Microbial Investigator (CMI), Certified Microbial Remediation Supervisor (CMRS) and Certified Microbial Claims Adjuster (CMCA).

Under the consolidation plan, most of these AmIAQ certification programs will continue to exist, and some of them will be combined with IAQA certifications.

Certification for IAQ, Assessment and Remediation

The certification consolidation calls for AmIAQ to administer three major certification “tracks,” namely Environmental Investigation, Microbial Investigation and Remediation Mitigation. Each track would consist of tiers of certification designations that validate a person’s experience, education and knowledge at various levels.

AmIAQ is seeking accreditation by the Council of Engineering and Scientific Specialty Boards, or CESB, for the top certification designation under each of the three tracks. To obtain CESB accreditation, an organization must follow rigorous procedures for the development, administration and maintenance of its certification programs. CESB-accredited certifications must require high levels of experience and education.

• The Environmental Investigation track would include two certification designations: the Council-certified Indoor Environmentalist (CIE), and above it the Council-certified Indoor Environmental Consultant (CIEC). The CIEC designation would be compliant with CESB requirements. Those currently certified by IAQA as a CIE would retain their CIE designation under AmIAQ’s administration after the consolidation. Those currently certified by AmIAQ as a CIAQI would have the ability to change to the CIE designation, to continue using the CIAQI designation, or to use both designations. Some current IAQA CIEs and AmIAQ CIAQCs may be eligible to grandfather into the CIEC program if they scored high on their respective examinations and meet stringent CIEC education and experience qualifications.
   

• The Microbial Investigation track would include three certification designations. The highest level, which will be compliant with CESB requirements, is the Council-certified Microbial Consultant (CMC). Next is the Council-certified Microbial Investigator (CMI), followed at the bottom of the track by the Council-certified Residential Mold Inspector (CRMI). CMC and CMI are existing AmIAQ programs, whereas the CRMI program is being brought over from IESO. Current CMCs who scored high on their examinations and meet the CESB minimum requirements for experience and education would be allowed to remain within the CMC program after CESB accreditation is achieved.
   

• The Remediation Mitigation track would include three certification designations. At the top is the Council-certified Microbial Remediation Consultant (CMRC), the program that would be CESB compliant. Next in the pecking order is the Council-certified Mold Remediation Supervisor (CMRS), followed by the Council-certified Mold Remediator (CMR). Those currently certified by IAQA as CMRs who scored high on their examinations and meet other CMRS program requirements would be eligible to move into the CMRS designation. Other IAQA CMRs can move into the CMRS program by taking a supplemental exam or by verifying field experience via a new application. There would be no grandfathering into the CMRC program.

The certification consolidation plan will be presented to the respective members and decision-making bodies at the combined AmIAQ-IAQA-IESO convention in Orlando next month. If ratified by the membership in October, the certification consolidation plan would take effect Jan. 1, 2006.

“There’s a certain brand of vapor barriers that really sucks, but I can’t say which because the conference organizers won’t let me.”

That’s something you would never hear Dr. Joe Lstiburek say at his own conference.

Instead, he would definitely go ahead and name the offending brand.

Here is a quick note to conference organizers who may be reading this: Don’t let that worry you. Lstiburek knows his limits and abides by them when he is presenting at forums with established policies that prohibit speakers from commenting on commercial entities.

He is notorious for always speaking his mind, and some might say he has the biggest mouth of anybody in all the ranks of the American Society of Heating, Refrigeration and Air-Conditioning Engineers.

But Lstiburek (whose name is pronounced STEE-brook) is not merely an outspoken person. He is also a well respected one. Over his long and distinguished career, he has disseminated plentiful expertise on the subject of building science in the form of books, journal articles and lectures. Among his many credits are his contributions to ASHRAE Standard 62 and other technical committees as well as a stint as chairman of an ASTM committee sorting out the durability of building structures after moisture intrusion.

His status as a highly regarded international authority – and, since last year, an ASHRAE fellow – doesn’t prevent him from voicing opinions. In fact, the respect countless people have for him pretty much encourages him to continue being his contentious self.

As a principal of the Massachusetts-based architectural and consulting firm Building Science Corporation, Lstiburek is in high demand for numerous speaking engagements each year in the United States, Canada and beyond.

But none of these speaking engagements is as, well, “down-home” as the one he holds every year in his current hometown of Westford, Mass. Each summer since 1997, associates of his have flown in to one of two airports located less than an hour’s drive from this picturesque suburb with a population of 21,000, to go to a hotel for some conference sessions dealing with building science. Then the group heads over to Joe’s place to indulge in food and drink in his backyard. Hence was born the tradition of Summer Camp.

This once-simple pastime has over the course of nine years evolved into a full-fledged extravaganza. This time, it was more formally regarded as the Ninth Annual Westford Symposium on Building Science. But attendees still call it Summer Camp, and Lstiburek still calls himself camp councilor. Playing into the metaphor, the house he owns with Betsy Petit, his wife and fellow Building Science Corp. principal, is dubbed “the official summer camp clubhouse.”

Some attendees were brave enough to attend two nights of pre-conference parties beginning July 30. Three full days of intense technical sessions took place Aug. 1–3, with celebrations following each night that were every bit as intense.

The technical sessions, paid for by modest course fees that also support overhead expenses for the evening networking opportunities, are daylong discourses inviting listener feedback and participation. Lstiburek, this year hobbling with the aid of crutches due to a recent skiing accident in New Zealand, spoke Aug. 2 at great lengths about the ventilation of multifamily residences, drainage planes, HVAC systems, and vapor barriers – including ones he does not pretend to like. He also riffed for several minutes about some ways to improve upon the IAQ recommendations of ASHRAE Standard 62.2 with a proposal he likes to advocate because it does more to protect occupant health.

Also lending his lecturing services as a keynote speaker was Terry Brennan, president of Camroden Associates in Westmoreland, N.Y., since 1985, and an oft-cited government consultant on mold and moisture issues. During his Aug. 1 address, Brennan brought up what he feels are some inadequacies in the U.S. Green Building Council’s LEED programs, to which he was a contributor. He hinted toward ways the programs could evolve to include more of a sharp focus on indoor air quality in the future.

The crowd hearing these speakers’ comments and benefiting from the dialogue is made of up people from all walks of life: design engineers, architects, insurance companies, lawyers, consultants, health professionals, government officials, and many more. Together, they do not comprise any single membership organization. Attendees are there at Summer Camp by invitation only. They definitely share a common interest in building science. Conversations at lunches, during breaks and at the backyard after-parties vastly differ from tenuous “So, when’d you fly in?” small talk. Attendees are knowledgeable in their respective fields, generally willing to share information with others, and ultimately swift in taking advantage of every networking opportunity available over the course of three days and three nights or longer.

While there is little doubt that such interesting conversation would be happening no matter what the setting, it is assumed that one of the major reasons people keep coming back is because the backyard celebrations each night of Summer Camp’s duration turn out to be a big, gluttonous feast.

Copious amounts of expertly prepared food and fermented beverages are offered, and partaken of, to great excess. The head chef is restoration-industry mainstay Pete Consigli, with assistance and guidance from the watchful eye of his mother. An accommodating catering staff lends support wherever necessary. Others from the spectrum of indoor air quality and building science offer assistance with their own particular specialties, be it Texas barbeque, East Coast-brewed beers or New Jersey corn.

Inside the clubhouse, many pick up musical instruments and play. Many of those who cannot play music choose to sing. Those who cannot sing music turn to dancing. Those who cannot dance are obviously in the wrong place. Even Lstiburek ditched his crutches for a “miraculous” moment to dance with his main squeeze. As Lstiburek danced with his wife, Betsy Petit exclaimed, “It’s a miracle! He couldn’t so much as get off of his feet all week while we were preparing for this, and now suddenly he can dance!”

If Lstiburek really neglected to participate in preparations as his wife suggested, it was not obvious to attendees. What was obvious, however, was that Summer Camp was once again very well planned and executed without a hitch. In its first-ever review of the occasion, IE Connections in 2000 plastered a photo of the “clubhouse” on its front page with a headline hailing the Westford Symposium as “The Best of IAQ.”

The newspaper is not likely to retract that moniker based on the quality of the technical sessions and celebrations held in 2005.

LEGAL ADVICE BY MICHAEL BOWDOIN
Expert Witnesses: Knowing When You Don’t Know

Michael Bowdoin
Partner
Brown Sims P.C.
Houston, Texas

My grandfather was raised in the cotton fields of central Texas and the oil fields of South Texas and lived through the Great Depression, both World Wars, the Korean War, the Vietnam War, and the Middle East war. Despite the incredible advances in knowledge, science and technology he had seen in his lifetime, he had a favorite expression regarding human nature: “A fool is a man who believes his own rhetoric.” But in place of “rhetoric,” Granddad used a much more colorful, and perhaps agricultural, term common among rural Texans.

Years later, my legal mentor would use a similar approach when training young associate attorneys in the discipline, the art and the science of law practice. The most important skills young attorneys could master, she told us, were to “develop the ability to recognize when you don’t know something” and “to ask for help from someone with more knowledge or experience.”

I believe that expert witnesses testifying about indoor air quality can benefit from the wisdom of these two mentors, one educated in the school of hard knocks and the other educated in one of the finest law schools in the United States.

Over the last four or five years, there has been a tremendous advance both in the technology applied to and training associated with IAQ investigations. I read at least three or four expert witness reports a week in the course of my practice of law. In addition, I have read countless curriculum vitae relating to the professional qualifications, training and experience of the authors of these reports. It never ceases to amaze me how many opinions I see proffered by these experts regarding fact patterns, cause-and-origin determinations, coverage disputes, and actual and consequential damages that contain blatant flaws or omissions and are clearly outside their professional areas of expertise.

The purpose of this article is to present a basic fact pattern regarding a disaster involving or resulting in IAQ issues and a cleaning-and-restoration company’s improper response to this disaster. Based upon the failed dry-out, the building owner is forced to sue the restoration company for the resulting cost of cleanup, repair and diminution in value.

The Disaster

The Hazzard County Courthouse was built in 1927 and has become the center of cultural life in Hazzard County, Texas. The old courthouse has been affectionately named “Big Red” by the local residents due to the bright red color of the bricks cladding its facade. The building was first renovated in 1940 when the entire building was fireproofed and insulated with an asbestos-containing flame-retardant material. The building was again renovated in 1965 with the addition of a “modern” air-conditioning system. On Sept. 11, 2004, an inmate awaiting trial in a small holding cell started a fire causing extensive smoke and soot damage. The building sprinkler systems responded by flooding the building with hundreds of gallons of water.

A local county commissioner recommended his sons’ new company, Disasters-R-Us, to remove the water and to clean the interior of the building and its contents, removing all the floor coverings. The company, which had never attempted a job of this size and complexity, was forced to employ several fly-by-night subcontractors who had no experience in drying. These subcontractors failed to dry the interior wall cavities, leaving wet insulation and standing water in the stud tracks.

Approximately four months after the cleanup was completed, a number of office workers began experiencing unexplained symptoms that suggested sick-building syndrome (dizziness, breathing difficulty, eye and nose irritation and headaches). Complaints began to increase, and mold growth appeared through vinyl wall coverings on the exterior walls. An indoor air quality consultant, hired to perform an extensive investigation of the building, said the interior walls of the structure had never been thoroughly dried, and there was massive mold growth in the interior wall cavities.

The Assignment

You receive a phone call from the county attorney and county commissioner requesting that you investigate the situation on behalf of the county, provide your expert opinions regarding the adequacy of the drying procedures and also the cost and scope of any potential solution. The county has decided to file suit against Disasters-R-Us and all of the subcontractors involved in the dry-out and cleaning of the building.

You agree to accept the assignment. Now, what do you do? Knowing that this assignment will ultimately involve litigation, you must be aware of a number of issues at the onset. Although expert classifications vary from state to state, and each state has its own procedural and evidentiary rules, I will utilize Texas law in this analysis.

Types of Experts

As an expert witness, you may be either a testifying or consulting expert.

A testifying expert is an expert who may be called to testify as an expert witness at trial. Testifying experts can further be subdivided into retained and non-retained. Different discovery rules apply depending upon whether or not the expert is retained.

If an expert is retained, he or she is employed by or otherwise subject to the control of the party retaining him or her. Examples include doctors employed to give an opinion in a malpractice case and an accident reconstruction expert retained in car accident cases. Any communication involving or work performed by a retained testifying expert is discoverable by the adverse party.

If you are not retained, employed by or otherwise subject to the control of the party, you are a non-retained expert. Examples include emergency-room doctors, an accident investigator for the department of public safety, and another party’s expert who intends to be called to testify. Non-retained testifying experts and their opinions and reports are still discoverable.

The second form of expert is the consulting expert. Consulting experts are classified as either consulting-only or consulting-plus experts.

A consulting-only expert is an expert who has been consulted, retained or specifically employed by a party in anticipation of litigation or in preparation for trial but who will not testify at trial. The consulting expert has no first hand factual knowledge about the case; however, he may know second hand factual knowledge acquired through the consultation. The consulting expert’s work product is not reviewed by the testifying expert. Nothing regarding a consulting-only expert is discoverable.

A consulting-plus expert is an expert who was hired as a trial consultant but lost her status as consulting only because her work was reviewed by the testifying expert or because she became a fact witness.

A consulting expert whose mental impressions and opinions are reviewed by a testifying expert is treated like a testifying expert. This expert’s work is discoverable to the same extent as a testifying expert. A consulting expert who obtained knowledge about the case either firsthand or in some way other than in consulting about the case is treated as a fact witness. By comparison, when a consulting expert, at the request of a party, examines a photograph of an accident site, that expert does not become discoverable as a fact witness.

As you can see, the specific terms of your engagement by the county, the time at which you were engaged, the purpose of your engagement (whether to testify or simply consult), the types investigations you will be conducting, and the nature of your opinions must all be considered prior to your retention. You should consult with the county attorney prior to and during your employment regarding strategic advantages and disadvantages involving the use and disclosure of your professional opinions. Remember that any written correspondence, reports, investigation material reviewed or source material used may be discoverable if your status as an expert is not tightly controlled.

Who Is an Expert?

Theoretically speaking, everyone is an expert in something. So, how do we determine who qualifies to be an IAQ expert? Federal Rule of Civil Procedure 702 provides a clear answer. It states that an “expert” is a person qualified by knowledge, skill, experience, training or education to assist the trier of fact in understanding the evidence or determining a fact issue when scientific, technical or other specialized knowledge would be helpful. In IAQ cases, experts determine:

1. the cause of the problem;

2. the scope or parameters of the problem;

3. type of contamination present;

4. the remediation or correction of the root cause of the problem and the symptoms of the problem;

5. the process undertaken to solve the problem; and, finally,

6. post-remediation testing.

Who Hears the Expert?

In order to influence the trier of fact in a lawsuit, the expert must get past the gatekeeper. This is where the Daubert case comes into play. Daubert vs. Merrill Dow Pharmaceuticals Inc., 509 U.S. 579 (1993), provides that trial court judges are the gatekeepers with respect to the admission of expert witness testimony. Further, all scientific evidence must be reliable and relevant. The Supreme Court listed the four non-exclusive factors to be considered in determining reliability as:

1. whether a theory or technique has been tested;

2. whether a theory or technique has been subjected to peer review and publication;

3. the technique’s known or potential rate of error; and

4. the general acceptance of the theory or technique by the relevant scientific community.

Daubert is the current law of the land and is applicable in all U.S. courts. Before an expert witness’s testimony may be considered by the trier of fact, it must meet all four prongs of the Daubert test. Clearly, Daubert affects many IAQ professionals including the expert who collects the data, the lab that analyzes the data, the expert who testifies in court, and the consultant who ultimately manages the process and end result. 

What Do Lawyers Need from an Expert?

What is the most important criterion or consideration for the county to consider in choosing you as an IAQ expert? The county will expect you, through oral and/or written means to be able to influence the trier of fact (judge or jury) and thereby affect the ultimate outcome of the case.

When the county hires an expert, it is seeking sound, reasoned expert opinions. Experts should “call it like it is” and not tailor their opinion to favor the party who is paying their bill. It is the expert’s job to apply the reasonably prudent standards of his or her profession to the given fact situation and provide the parties in the case with technical or scientific opinions that are both well-reasoned and verifiable.

If the opinion of the expert is not even seen by the trier of fact, the parties in the case have been done an immense disservice. This leaves the county with a large bill and no ultimate results to show for all of the expert’s time and expense. Such was the case in Melinda Ballard et al. vs. Fire Insurance Exchange et al., wherein the jury was never allowed to consider any evidence regarding the personal injuries allegedly sustained by the plaintiffs. In this case, which many see as a watershed event in mold litigation, the questions concerning “toxic mold” and resulting health effects were never even addressed by the jury.

How Will You Be Judged?

As an expert witness, the opposing side will attempt to discredit you and your opinion in any way possible. Personal shortcomings and family issues are generally not considered by the courts. With the exception of “crimes involving moral turpitude” (whatever that phrase means), convictions for perjury and other major offenses, all minor criminal matters should also not be admissible to impute your professional opinion or reputation.

Areas often overlooked but that may provide fertile fodder for your impeachment involve your company’s Web site (past and present), previous deposition testimony, previous reports, previous invoices, graduate thesis and dissertations, articles and publications authored or edited and association with various professional groups (either defense- or plaintiff-oriented).

With regard to the specific disaster referenced above, your credibility will be judged on:

1. your timely responsiveness in beginning your investigation;

2. the scientific methodology utilized and its consistency with industry standards;

3. your objective approach to investigation and analysis;

4. reasonable alternatives investigated, considered and rejected;

5. results reached and rationale supporting your results;

6. the presence and treatment of potentially hazardous materials (asbestos);

7. documentation of health and safety issues involved, including those raised by the building occupants;

8. the complexity of the internal drying of the building and the drying results;

9. verification of microbial contamination and scope of remediation; and, finally,

10. your fees and expenses charged for professional services.

Conclusion

As an expert, you will also be required to carefully evaluate the need to call in additional expertise. In the fact pattern above, collateral issues involve proper drying and desiccation methodology, asbestos disturbance and removal, soot removal, health effects, heating, ventilation and air-conditioning systems, and financial analysis of economic damage models.

Unless the required technical expertise to evaluate each of these widely divergent areas reside in one individual or company, additional expertise must be obtained. You, as the expert, must anticipate the limitations present and seek help. As stated earlier, one major problem confronting experts of any discipline is the tendency to proffer opinions outside their areas of expertise. If you proffer an opinion outside your area of expertise, you have made a critical mistake.

Lastly, remember that there can be 10 experts testifying in a case with 10 different opinions, each of which can be valid. The expert who prevails must be able to best articulate and support his or her position before the trier of fact.

Michael Bowdoin is a partner with the law firm of Brown Sims P.C. in Houston, Texas. He and his firm specialize in representing defendants in regulatory and administrative law, commercial litigation, construction law, real-estate law, insurance law, and toxic tort/hazardous substances litigation including silica, asbestos, mold, chemical, and drug exposure. He can be reached by e-mail at mbowdoin@brownsims.com or by phone at (713) 629-1580.