Coating Failures/Disputes: Preparing for Litigation

Failure analysis of coatings and linings often involves systematic analysis and complex engineering logic. There are also many human factors involved. Each coating application involves at least three distinct parties often with different motives and opinions. These parties include the owner of the structure or facility that was painted, the contractor firm that prepared the surfaces and applied the coatings, and the manufacturer of the coatings that were used. When coating failures occur, it is not uncommon for the cost of the repair to exceed the original application cost. Each party may have a completely different opinion as to the primary causes of failure. These opinions to some degree are often based on either a conscious or subconscious desire to protect their financial interests.

Most disputes that involve protective coatings are settled by the involved parties without going to court. Unfortunately, some of disputes are not settled between the parties and end up in litigation. Generally, the scientist who has conducted the coating failure investigation will be required to testify during court proceedings as to his or her expert opinion regarding the cause(s) of the coating failure. There are several steps that can be taken to help the expert witness prepare for, and participate in these proceedings.

The first step may take place even before a lawsuit has even been filed. This step involves the actual coating failure investigation. The investigator or analyst should consider all thyour company or your client’s company. An unbiased and thorough analysis of the coating failure may save the analyst from being put in the uncomfortable position of explaining why damaging data was excluded from the analysis and more exculpatory data was given undue weight. If the failure analysis is performed thoroughly and with integrity the analyst can confidently testify on the results of the analysis

In many cases, the expert witness is called upon to testify both in deposition and in court. The actual preparation for deposition and court room testimony is similar. The expert witness should carefully examine all the facts that have been presented to gain a deep familiarity with the case.

Generally, there are three aspects of the case that should be studied: the circumstances of the case, the experts own analysis, and the opinions of other experts.

Circumstances of the Case

The expert witness needs to clearly understand the facts of the case before the conclusions were developed pertaining to the root cause of a coating problem. However, the sheer volume of information can be somewhat intimidating, especially when the case is multifaceted and the scope of the failure is large. When an analyst is working on multiple cases (all with various levels of detail) it makes knowing the detailed circumstances much more challenging. While each case is different, as a minimum the expert witness should be familiar with:

The Application – Several aspects of the coating application should be committed to memory, such as the manner that the coating was applied, the approximate environmental conditions at the time of the application, the qualification of the applicators and any information concerning quality assurance/quality control during the application of the coatings. If there were any application problems encountered the nature of those problems should be reviewed.

The Coating – To determine whether a coating was applied properly, the expert should have a working familiarity with the products that were applied. Obviously, the witness should know the exact products that were applied including the product name and manufacturer. The product data sheet should be reviewed so that the expert knows the application parameters that are recommended by the manufacturer, including thicknesses, application temperatures, environmental restrictions, curing times and recoat windows and whether deviation from any of these recommendations may have adversely impacted the coating performance. Additionally, any other information on the product data sheets that may have had some adverse impact on the performance of the coating should be committed to memory.

Any other information concerning the circumstances the coating failure should be reviewed before testimony. This information may include approximate timelines for the application and the first signs of coating failure.  Included in that timeline may be details concerning the storage and shipping of coated pieces if the application involved new construction. For example, the witness should know where the pieces were coated, the approximate time of year they are shipped, whether the pieces were transported via ship and the length of time in the conditions during storage on the site. Often the most severe environment to which a painted member is subjected occurs during the shipping or storage.

Often depositions have been taken from the parties involved in the case before an expert witness is required to submit their opinion. These depositions can provide important information on the circumstances of the case. Often, an attorney will provide the expert with information from the deposition that is pertinent to the expert’s testimony or may provide the entire deposition and let the expert decide what is pertinent.

Expert Witness Analysis

The expert witness analysis is ultimately what the witness has been called upon to present. The expert witness should have familiarity with all aspects of the analysis.  First the details of the site visit should be reviewed, included when the site visit was performed, what access was gained to the various areas and the approximate length of time that was spent on the site.

The expert witness should thoroughly review the details of the observations and the testing that was performed during any site visit, including the approximate locations of any of the tests that were performed. More than likely, these details will not be included in expert testimony and any of the details of the analysis can be the subject of questioning by the opposing counsel.

Not only should the tests and the locations of the tests be reviewed, but the testing results and methods should be reviewed so that the expert has knowledge of whether the results of the tests had a significant impact on the expert’s opinion.

Any forensic laboratory analysis that was performed should be reviewed and the significance of the analysis (or lack of significance) to the expert’s opinion should be thoroughly understood. Finally, the expert should review his or her opinion or opinions giving careful consideration as to the circumstances and data that logically led to that opinion.

Opinion of Other Experts

As a litigation proceeds, expert witnesses are usually given access to the opinions of other experts hired by the same client, and experts hired by opposing parties in the case. In many cases, the opinions of the experts vary considerably. In some court cases, the opposing experts are given an opportunity to formally rebut in writing any reports that are provided by the experts for opposing parties. When this opportunity is presented, it is important for the expert witness to thoroughly review the rebuttal so that it is well understood during deposition or court testimony. Keep in mind that the opinions of the experts for the opposing parties are often used as a basis for opposing counsel to question an expert witness, so it is extremely important to understand the positions of other experts.

If available, the reports of the other expert witnesses should be reviewed. If the other expert witness’ conclusions differ significantly, an expert witness should objectively review the report to determine whether facts were considered in the other experts report that should have been given more consideration in his/her expert opinion.  Conversely, the opposing report should be objectively analyzed to determine whether important facts or data were intentionally or inadvertently omitted from consideration.

In conclusion, the best preparation for litigation is to provide an honest and thorough analysis of the problem about which you are providing testimony. Review all the facts and circumstances of the case including your own analysis and conclusions in the opinions of others involved in the case and be prepared to speak the truth.

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