CAMBRIDGE MASSACHUSETTS CONSTRUCTION EXPERT WITNESS
DIRECTORY AND CAPABILITIES

Toolbox Talk Series Recap - Guided Choice Mediation

November 05, 2024 — Douglas J. Mackin - The Dispute Resolver
In the September 26, 2024 edition of Division 1's Toolbox Talk Series, Clifford Shapiro presented on Guided Choice Mediation (“GCM”) and how it can lead to better outcomes in construction disputes. GCM is an approach to mediation that focuses on early and efficient dispute resolution, which prominent mediators created as a public interest project. Shapiro described his particular variant of GCM based on his experience while acknowledging that other Guided Choice Mediators’ processes may differ from his in various ways. Shapiro’s brand of GCM focuses on ensuring that parties have reasonable expectations and appropriate settlement authority prior to arriving at a mediation. Some of the strategies to help accomplish these noble goals are (i) early mediator engagement, (ii) mediator facilitation of information exchange, (iii) mediator involvement with insurance issues (particularly important in construction defect cases, especially those with multiple defendants), (iii) pre-mediation ex parte meetings, and (iv) mediator participation in risk analysis. These strategies are not typical in the more traditional/historic approach to mediation in which mediation is scheduled based on a scheduling order, mediation statements are sent to the mediator roughly a week before the scheduled mediation (and sometimes not even shared with anyone other than the mediator), and the parties speak with the mediator for the first time on the day of the mediation. Read the full story...
Reprinted courtesy of Douglas J. Mackin, Cozen O’Connor
Mr. Mackin may be contacted at dmackin@cozen.com

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David Uchida Joins Kahana Feld’s Los Angeles Office as Partner

December 31, 2024 — Linda Carter - Kahana Feld
Kahana Feld is pleased to announce that David M. Uchida recently joined the firm as a partner in the firm’s Los Angeles Office. He is a member of the firm’s General Liability group. A client-focused and seasoned litigator, David has defended product manufacturers and suppliers in complex toxic tort and environmental litigation. David also has extensive experience defending clients in alleged asbestos, benzene, and silica exposure claims. Read the full story...
Reprinted courtesy of Linda Carter, Kahana Feld
Ms. Carter may be contacted at lcarter@kahanafeld.com

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Traub Lieberman Partner Ryan Parker and Associate Melina Lowe Win Verdict Finding No Liability in Favor of Condo Owners

April 08, 2025 — Ryan S. Parker & Melina Lowe - Traub Lieberman
Traub Lieberman Partner Ryan Parker and Associate Melina Lowe obtained a defense verdict following a five-day jury trial in Volusia County. The lawsuit was filed against Traub Lieberman’s clients, owners of a condo unit (the”Owners”) located above the Plaintiffs’ unit. The Plaintiffs alleged that the Owners were negligent and breached the Declaration of Condominium for failing to maintain their windows, which the Plaintiffs alleged caused damage to the Plaintiffs’ unit. The Plaintiffs sought over $250,000 for loss of use of their property in addition to other damages. After the Plaintiffs rested their case in chief, Mr. Parker and Ms. Lowe moved for directed verdict on several issues—and a partial directed verdict was granted—which reduced a portion of the Plaintiffs’ damages. After a lengthy trial—which included testimony from more than twelve witnesses—the Jury returned a verdict finding no liability on the part of Traub Lieberman’s clients. As a result of the verdict, the Owners have a basis to recover their attorney’s fees and costs. Reprinted courtesy of Ryan S. Parker, Traub Lieberman and Melina Lowe, Traub Lieberman Mr. Parker may be contacted at rparker@tlsslaw.com Ms. Lowe may be contacted at mlowe@tlsslaw.com Read the full story...

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“You Can’t Make Me Pay!”

January 28, 2025 — Daniel Lund III - Lexology
Several years ago, Louisiana enacted a law prescribing a mandamus proceeding for unpaid contract sums purportedly owed by a public entity to a contractor – Louisiana Revised Statute 38:2191. The statute tackles both progress payments and final payment, distinguishing between the two and allowing withholding of a progress payment when there is “reasonable cause” to do so. On the other hand, at least one Louisiana appellate decision held on the topic of final payment: once a final payment amount is “due” per the statute – based upon passage expiration of the lien period following “formal final acceptance” – the act of making the final payment is purely ministerial and not subject to defenses. According to that court, a defense to payment based on assessed liquidated damages – because the damages were disputed by the contractor – could not trump the essence of the statute allowing the contractor to pursue mandamus to collect the final payment. More recently, on a public works levee project in Lafourche Parish, a dispute arose during the work concerning the means to secure material for constructing the levees. The net effect of the dispute entailed a major change in the contract price. Read the full story...
Reprinted courtesy of Daniel Lund III, Phelps
Mr. Lund may be contacted at daniel.lund@phelps.com

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Newark Trial Team Obtains Affirmance of Summary Judgment for General Contractor Client

January 21, 2025 — Lewis Brisbois Newsroom
Newark, N.J. (December 31, 2024) - Days after obtaining an Appellate Division victory affirming a “no cause” jury verdict, Newark Partner Afsha Noran and Managing Partner Colin Hackett obtained a second appellate court victory affirming a trial court's dismissal of a complaint against another firm client, a general contractor. The team had previously obtained summary judgment at the trial level on the grounds plaintiff could not establish a prima facie case against the client. The plaintiff appealed the grant of summary judgment and dismissal of her claim to the Appellate Division. Read the full story...
Reprinted courtesy of Lewis Brisbois

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Texas Allows Wide Scope for Certificate of Merit

January 07, 2025 — Lian Skaf - The Subrogation Strategist
The purpose of certificate of merit (sometimes referred to as affidavit of merit) statutes is to identify frivolous claims before the court wastes time and resources during litigation. More common in medical malpractice cases, several states have enacted similar requirements for professional negligence claims dealing with construction-related issues. While a subrogation attorney should not be bringing a frivolous case to suit anyway, the requirement adds another step in the process that plaintiffs need to properly navigate. Chapter 150 of the Texas Civil Practice and Remedies Code requires that in an action arising out of professional services by a licensed or registered professional, claimants must file an affidavit from a qualified expert attesting to the theories of recovery, the negligence and the factual basis for the claims. The expert must be competent, have the same professional license or registration as the defendant and practice in the area of practice of the defendant. In Janis Smith Consulting, LLC v. Rosenberg, No. 03-23-00370-CV, 2024 Tex. App. LEXIS 7961, the Court of Appeals of Texas, Third District (Court of Appeals) addressed a challenge from the defendant as to the sufficiency of the plaintiff’s certificate of merit in an interlocutory appeal. The Court of Appeals affirmed the lower court’s dismissal of the defendant’s motion to dismiss based on the allegedly improper certificate of merit, holding that the plaintiff’s expert was sufficiently qualified to certify the legitimacy of the case. Read the full story...
Reprinted courtesy of Lian Skaf, White and Williams LLP
Mr. Skaf may be contacted at skafl@whiteandwilliams.com

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Keep an Eye Out on What Your Insurance Policy and Contract Says

February 19, 2025 — David Adelstein - Florida Construction Legal Updates
There is a very good reason the contract requires the party providing a service (e.g., subcontractor) to name the paying party (e.g., general contractor) as an additional insured under its liability policies (e.g., CGL policy) on a primary and non-contributory basis. There is also a very good reason why you, as an insured, should read the contracts you sign with the party providing a service for you. In other words, keep an eye out on what your insurance policy says and what your contract says! This is an ABSOLUTE!! If you want to know the good reasons, look no further to the recent case of Colony Insurance Co. v. Titan Restoration Construction, Inc., 2025 WL 45160 (Fla. 4th DCA 2025). In this case, a general contractor’s CGL policy contained an endorsement that stated there would be no coverage UNLESS the general and subcontractor executed an agreement containing, “A requirement for the [subcontractor] to name the insured [general contractor] as an additional insured under their Commercial General Liability policy on a primary and non-contributory basis in favor of the insured [general contractor].” Colony Insurance, supra. The general contractor hired a roofing subcontractor. There was no requirement for the roofing subcontractor to name the general contractor as an additional insured on a primary and noncontributory basis. Also, the proposal the general contractor signed contained a disclaimer from the roofing subcontractor that the subcontractor “will not be held responsible for water damage to the exterior or the interior of the premises.” Read the full story...
Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

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Higgins, Hopkins, McLain & Roswell, LLC Announces Leadership Changes and New Vision for Growth

January 21, 2025 — David McLain - Higgins, Hopkins, McLain & Roswell, LLC
Higgins, Hopkins, McLain & Roswell, LLC (“HHMR”) is excited to announce several significant developments as the firm transitions into an exciting new chapter of growth and innovation. Sheri Roswell, one of the firm’s founding members, is stepping out of ownership to serve as “Of Counsel,” continuing her vital work with clients and strengthening relationships that have been the cornerstone of HHMR’s success. Her tireless contributions since the firm’s inception have helped establish HHMR as a leader in Colorado’s construction law landscape. “Sheri has been a pillar of HHMR since day one. Her commitment to our clients and her unwavering dedication to the firm’s success have left an indelible mark. We are excited for her to continue contributing her expertise and leadership in this new capacity,” said David McLain at the firm’s recent holiday celebration. Read the full story...
Reprinted courtesy of David McLain, Higgins, Hopkins, McLain & Roswell, LLC
Mr. McLain may be contacted at mclain@hhmrlaw.com

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