September 10, 2012
Destructive testing is much like exploratory surgery – intrusive, expensive, uncomfortable, inconvenient and the last resort for determining the cause of a problem. Every effort should be made prior to destructive testing to evaluate the nature of the complaint. And like surgery, the expert conducting the destructive testing should know what he is looking for and be prepared for whatever he may find. This is because destructive testing, if not handled properly by attorneys and their experts, can accomplish little and may actually damage a plaintiff’s case.
The purpose of destructive testing is to uncover the causes of distress which manifest themselves within a building’s systems. The plaintiff often conducts destructive testing (when the defendant is not present) to develop, confirm and / or substantiate his construction defect claims and subsequent request for monetary damages. In this way, the plaintiff can prove his hypothesis by selecting the building components which best represent the state component failure. By interpolating and interpreting these findings, the plaintiff offers evidence that such a claim exists and supports his assertion of frequency and / or magnitude of occurrence.
The defendant, on the other hand, has no obligation to conduct destructive testing until the plaintiff has made specific claim (location, extent, causation, and repair costs) known. Otherwise, the defendant does not know where to test, what to look for and what is at stake, and runs the risk of doing the plaintiff’s work for him. Should the defendant determine it is in his best interests to conduct destructive testing to refute the plaintiff’s claims, great care must be exercised when selecting the area to be tested so as to minimize disruptions and damage, facilitate repairs and access the information most important to the investigation. Destructive testing at various locations may be necessary to substantiate frequency and degree of occurrence.
Destructive testing should be conducted by licensed, competent contractors who are familiar with the building’s plans and specifications, and are able to respond immediately to unforeseen circumstances and repair damaged areas to like-new condition. Attorneys, consultants and experts in attendance typically photograph and film the progress of destructive testing by producing a continuous record of removal for each successive layer to reveal evidence of construction workmanship, adherence to plans and specifications and existence of construction defects.
Regardless of who is conducting the destructive testing, consideration and courtesy must always be shown to those persons affected by destructive testing to minimize the negative impacts to their home and schedule. By remaining sensitive to homeowners’ needs and feelings, destructive testing, like a well-executed surgery, will be as painless a process as possible.