Responsible for specifying a new product that fails and causes damage?

When new products fail and cause damage, a claim against the design professional will inevitably follow. A recent lawsuit settlement, The Chesapeake Bay Foundation, Inc., et al v. Weyerhaeuser Company, et al, highlighted concerns that specifying new or untried materials and products (which are often the keystone of sustainable buildings) comes with unique risks. By following the recommendations outlined below, the chance of a failure can be greatly reduced. And if a failure does arise, these suggestions can help design professionals defend the claim by proving that they met the professional standard of care.

It’s imperative to document the thought process that went into the design recommendations. (And remember, it’s the design professional’s responsibility to make recommendations; the client makes the final decision.) Documenting the selection process should include the following:

• Evaluate comparable projects through interviews with the client, the design professional, and the contractor, and verify that the conditions were also comparable. Evaluate projects with bad results as well as good ones.
• Notify the manufacturer in writing of how the product will be used and request technical data, not just promotional material.
• Research the manufacturer’s reputation, financial condition, and production capability. Will the manufacturer still be in business if and when litigation ensues?
• Keep the client fully informed of the risks associated with the use of the product. Once the design professional is satisfied about the selection, and the client agrees, the design professional must carefully specify the product’s use and use due care to see that it’s properly installed.
• Provide the manufacturer with detailed information as well as any subsequent changes regarding the intended use of the product in order to obtain appropriate specifications.
• Require that shop drawings prepared by the manufacturer are approved by the contractor, or vice versa. Require the manufacturer to have a field representative present during installation to certify proper installation.
• Ask contractors to submit written objections prior to bid if they object to the proposed use of the product, and follow up to ascertain that they can install it properly in strict conformance with the plans and specifications.
• Plan to visit the site during installation to verify proper installation procedures.

Be sure to check out our previous post about the Chesapeake Bay Foundation case.