Aquatic Technology Pool & Spa, "Creating Water as Art."™

Aquatic Technology Pool & Spa, "Creating Water as Art."™
Pools as an art form - the way it should be!

Sunday, December 2, 2012

Selecting an Expert Witness for Pool & Spa Dispute Resolution

Selecting the best expert witness for your case requires that you know the type of expert you are dealing with.
There are 3 kinds of experts in the swimming pool & spa construction fields.  There are practicing experts, professional experts and professionals limiting their liability & financial exposure.

Practicing Experts

Practicing Experts are individuals who are still deriving a majority of their income as swimming pool & spa contractors or construction consultants.  These individuals are at the top of their game, as they are still actively involved in the trade.  They are utilizing modern and state of the art construction techniques, materials and methodologies on a daily basis.

Their active involvement in the construction fields, keeps them appraised of current trends and cutting edge equipment.  Their constant exposure to a multitude of high-end projects keeps them on the cusp of construction technologies.

What they are "doing in practice" defines who they are, what they believe and what they stand for.

Professional Experts

Professional Experts are just that... full-time paid experts.  The problem here may be one of sheer credibility.  They may have been a great builder at a past point in time.  But, there is a high likelihood that they are out of touch with current methodologies, practices, technologies, costs and ever changing codes & standards.  Their budgetary estimations may be outdated, having a basis on historical costs.

Being a professional expert alludes to merely being a "paid prostitute," "willing to say anything for a buck."  There are no current practices or projects which define their work ethic, workmanship, abilities and standards, and which therefore validate their opinions.

Exposure Limiting Experts

Exposure Limiting Experts must remain involved as experts, in order to limit their financial exposure and legal liability for their marginal past practices.

These experts are the most dangerous to a project and pose the greatest risk to the successful outcome of a dispute or litigation.  Many of these experts are "retired" structural engineers or ex-heads of large high volume swimming pool construction firms.  

Their past practices in "volume production" are what pose the greatest risk in the successful litigation of a construction workmanship or defect case.  It is virtually impossible to deliver high quality code compliant construction projects at volume levels.

Therein lies their dilemma as an expert.  They cannot agree that low strength concrete, generic mail-order structural engineering, lack of special inspections and structural engineering not based upon soil conditions are valid construction practices.  To do so, would expose themselves, their past employers, their firms and their past clients to liability and unknown financial exposures.

A structural engineer cannot admit that 1,000's of structural engineering plans that he sold without regard to the soils conditions is irresponsible.  A structural engineer cannot testify that 2,400 PSI concrete is insufficient, when he sold thousands of such mail-order generic plans.  The ex-President/CEO of a large swimming construction company who built thousands of pools based upon those very plans, cannot now testify that soils reports are required to obtain valid structural engineering or that 2,400 PSI concrete is insufficient.

These experts are the most dangerous.  They must protect the firms they used to work for - and in which they may still have a financial interest.  They must protect their professional licenses.  They may make "expert opinions" based upon the potential exposure the answer will create for them - not what is based upon scientific or legal fact.

These "retired" professionals are the ones that require the closest examination.  You may never become aware of their personal "conflicts of interest" based upon marginal past practices.

But other experts will be aware of these conflicts.  And these personal conflicts will be exploited to your disadvantage.  It is what attorney's do!

If an expert's past opinions, construction and business practices were marginal and high volume, then there is a high likelihood that they are not going to be able to act as an "independent expert witness."  In the very least, any "expert opinions" they render will be suspectIn the very least, their credibility will be called into question.

Practicing Experts are obviously the right choice! 

Paolo Benedetti
Aquatic Artist, Consultant & Construction Defect Expert Witness 
"Creating water as art."™ 
Aquatic Technology Pool and Spa 

Pools & Spa Construction Defect Analysis - Decades of Experience

Construction Defects Analysis - What exactly is a "construction defect?"

Concrete swimming pool and spa construction expert Paolo Benedetti discusses what constitutes a "defect" or a "deviation" and the related responsibilities.

Exactly what is a defect or deviation?

A "defect" is an aspect of a project that is installed in conflict with any of the following:
  • building codes
  • local ordinance or law
  • industry standards
  • accepted trade practices 

A "deviation" is an aspect of a project that is installed in conflict with any of the following:
  • manufacturers recommendations or instructions  
  • project specifications or designs
  • plans
  • contractual requirements 

Defects may be further broken down into "lack of knowledge," "installation errors," or "component failures."  Many times there are overlapping causes of project defects - the most common being ignorance that results in installation errors, that then affect the ability of materials to perform properly.

Deviations may affect the performance of materials, the functionality of the project or the project's appearance and finish.  They may eventually cause some sort of failure, whether it be structural, performance or aesthetic. 

A defect is always the result of some sort of deviation.  However, a deviation may not always result in a defect.   For example, if an installation is performed perfectly and the materials fail to perform, then the materials experienced a deviation from the quality standards.


Building codes are the laws that govern how construction projects are to be designed, engineered and built.  Like traffic laws, how stringently they are enforced is dependent upon the local authorities.  And, just like when there is a traffic collision, various obscure laws may be enforced after the fact... even laws you were not aware of!

Building codes often make reference to or may even directly incorporate various industry or trade standards and workmanship guidelines.  Any referenced standards become a "second tier" of the building codes that are also legally binding.

Local ordinances are laws, codes or requirements that have been adopted by the local jurisdiction.  They create more restrictive standards than those adopted by the broader authority.  An example, is a county that requires stronger glass windows than required by state law.

Industry standards and accepted trade practices only become law when they referenced in an existing code or ordinanceIf there is a dispute regarding workmanship, defects or deviations, then in civil or administrative hearings these are incorporated into the collection of enforceable standards.


The structural engineer has the responsibility of designing the project to overcome the anticipated loads and to exceed the current building codes.

The contractor then executes the engineer's design.  It is the contractors responsibility to ensure adherance to the applicable codes.  They have the additional burden of ensuring that all work is performed to the highest code or standard that is applicable to any aspect of a project.

When installed materials fail to perform correctly, then the contractor does not bear any liability, provided that they adhered to the highest applicable standard.

This is why, when codes, standards, plans, specifications or manufacturer's instructions are in conflict with one another, the strictest standard shall prevail.

It's all about liability and responsibility!

Paolo Benedetti 
Aquatic Artist, Consultant & Construction Management
"Creating water as art."™ 
Aquatic Technology Pool and Spa