Why is it so hard to class building defect claims?

There’s a townhouse development in the city with forty units. The HOA contacts you and says "everyone" in the neighborhood has leaky windows. You meet with the board, walk through the site, and decide it's worth a few dollars to get an engineer involved. Meanwhile, you ask the board to conduct a census to determine just how widespread the problem really is.

Twenty-two owners respond. Sixteen confirm their windows have leaked. Based on a visual inspection the engineer concludes a single manufacturer produced all the windows. He removes the siding around windows in three units, and discovers that no rough opening flashing was installed at the sill of any of them. He pulls one of those windows from the wall and determines that it was fabricated with an extrusion that directs water from the window sill behind the plane of the siding but in front of the sheathing. If the window had been manufactured differently, the absence of rough opening flashing wouldn't matter. If the rough opening flashing had been installed, the window defect would cause no damage.

There are several possible remedies: replace all the windows; remove every window, install rough opening flashing, and reset the windows; remove some siding beneath the windows and replace the sill extrusions; or drive down to Lowe's and pick up some caulk to seal the windowsills. The cost to repair ranges from twenty or thirty bucks for self-help caulking to several thousand dollars for window replacement—more, if the interior finishes must be disturbed.

You file suit against the builder, the framing subcontractor who set the windows, and the window manufacturer. Your action seeks certification as a class consisting of the owners of all forty units. Sounds easy, right? Numerosity, commonality, typicality, adequacy of representation, and (here in South Carolina), more than $100 in damages for each class member. Think again. You will face challenges on each requirement, from both defense counsel and the bench. And don’t even get me started with the predominance and efficiency requirements under the federal rule and state rules patterned on it.

With apologies to Irving Younger, you will hear the following. The windows don’t leak. If they do leak, it’s only a few. If a lot leak, they aren’t in every unit. And every one that leaks, leaks for a different reason. At least half of the homes haven’t been maintained properly. Only thirty of the owners purchased from the builder. Only thirty-two owners actually live in their units. Some windows leak worse than others. Some don’t leak at all. And your class rep used to be my job foreman, who I fired for stealing from me.

From the manufacturer you will hear a similar melody. I didn’t make the windows. If I did, I only made some of them. The ones I made don’t leak. If they do leak it’s because the framer put them in wrong. And besides, all you really need to do is caulk them.

Meanwhile, you find out that the judge who will hear your motion on class cert is from a county clear across the state. He’s thinking, “If I certify this class, I might get stuck in a three-week trial 100 miles from home.”

Now, I think this case should be certified. The engineer must testify at trial. You will need a window expert as well. For them to investigate, report, depose, and testify at trial will cost easily $15,000. There are defense experts to compensate. There are exhibits to produce. And, of course, you would like to get paid for all this work. Add it up and there is no sane lawyer who would prosecute an individual case, and no homeowner who could afford it if she found a lawyer to represent her. On the other hand, a single trial will be dispositive of liability issues. That individual class members may have different types or amounts of damages doesn’t mean the class shouldn’t be certified. But I don’t wear a black robe.

The defendants will make loud and sometimes convincing arguments that your case fails to meet any of Rule 23’s requirements for certification. And there are three of them in your case. And at least one them will hire a law firm with a construction “team,” a product liability team, and a class action team. Add this to an already skeptical judge and you have your work cut out for you.

You can certify a building defect class. It’s hard. The deck may be stacked against you. These cases do present more complex issues than, say, systematic overcharges by a wireless provider (no diss meant to my friends who have successfully prosecuted those cases). You need to simplify the issues as much as possible, narrow the class definition, and possibly shrink the potential class. Depending on the outcome of my most recent motion, I may talk about successful strategies for class cert in the next couple of weeks.