The owners of 19 Mission Viejo, Calif., homes have been ordered to pay $508,000 — about $26,700 each — in legal fees that Los Angeles-based National Ready Mixed Services Inc. incurred in a construction-defect lawsuit charging the producer had supplied defective, sulfate attack-prone concrete. In his July 14 ruling, Orange County (Calif.) Superior Court Judge David Velasquez noted, “Plaintiffs relied in large part on scientific evidence, the general acceptance of which was highly contestable. [Since] the scientific evidence necessary for each side to produce in the case is very expensive … there is the great temptation by plaintiffs to use the cost of litigation to bludgeon a settlement out of a defendant.” The cost to the plaintiffs is appropriate, he adds, and the award to the defendant reasonable.

Plaintiffs in the four-year-old case were seeking more than $5 million in damages tied to allegedly defective concrete for their homes' foundations. Earlier this year, Judge Velasquez ruled the plaintiffs had failed to demonstrate National RM supplied defective concrete or that the concrete had subsequently been damaged by external sulfate attack. “This judgment drives home the risk a homeowner takes when initiating litigation based on ‘junk science,’” says William Ingalsbe, Esq., National's Irvine, Calif.-based counsel. “These homeowners may now be required by law to disclose the lawsuit and the damage asserted by their attorneys, should they sell their homes.”

The defense team submitted to the court a cost bill totaling $2.2 million, including roughly $2 million for expert witness fees and related costs. The lawsuit centered on plaintiff testimony framed around tests that are not based on accepted scientific methods for the forensic examination of concrete. “In a past lawsuit, the plaintiffs' expert witnesses, using these inappropriate methods of testing the concrete, were not able to tell the difference between a concrete sample and a Tums tablet, nor could they tell the difference between a diamond and a lump of coal,” notes Geoffrey Hichborn, Sr, an expert witness for the defendant. He testified that each of the techniques used to conclude sulfate attack by the plaintiffs' experts was a subjective and non-standard method used simply to justify their predetermined and biased opinions.