Conflating ASTM With Legal Doctrine: Litigants Beware Of Evidentiary Overreach

"Facts are stubborn things, but statistics are pliable."
— Mark Twain

A growing trend in high-rise construction defect litigation is to rely solely on two American Society for Testing and Materials (ASTM) standards and a trade article to justify sweeping extrapolations about building envelope defects. Plaintiffs argue that compliance with E2018-15 and E2128-20, provisions from the ASTM manuals, automatically establishes compliance with Section 90.702, Florida Statutes. They point to D.R. Horton, Inc., J’ville v. Heron’s Landing Condo. Assoc. of J’ville, 266 So. 3d 1201 (Fla. 4th DCA 2018) and a trade article, titled "Qualitive Sampling of the Building Envelope for Water Leakage" by Lonnie L. Haughton and Colin R. Murphy (“Haughton and Murphy Article”) as support.

But extrapolation is a function of the mathematical field of statistics. And evidentiary compliance with such a subject is supposed to be governed by Daubert and its progeny. Neither E2018-15, E2128-20, nor the Haughton and Murphy Article purport to represent an authority in the field of statistics. To the contrary, E2018 is a set of guidelines for “good commercial practice” to develop a “baseline” for a property condition assessment: an evaluation that is ultimately reduced to a property condition report (“PCR”). E2128 applies only to water leakage evaluations, and is “not based on conventional hypothesis testing and quantitative random sampling.” The Haughton and Murphy Article, authored by forensic contractors (not licensed engineers, and certainly not statisticians), offers a perspective that prioritizes convenience over scientific rigor. The D.R. Horton case is not only factually distinguishable, but it also holds no precedential value.  

E2018 is a Guide for Facilitating
Commercial Real Estate Transactions

The express purpose of E2018 is to inform a construction consultant on how to prepare a PCR. A PCR is explicitly a “nonintrusive” visual assessment — a snapshot based on a walkthrough survey. A walkthrough survey consists of “nonintrusive visual observations, survey of readily accessible, easily visible components and systems of the property;” “[c]oncealed physical deficiencies are excluded.” A PCR should state that the purpose of the PCR is to serve “the client’s position with respect to the commercial real estate transaction.”

E2018 does not require the consultant to review drawings, “ . . . independently verify the information provided . . .,” or “identify mistakes or insufficiencies.” It does not require the consultant to test, measure, or prepare “calculations for any system or component to determine adequacy, capacity, or compliance with any standard . . .” E2018 allows the consultant to develop opinions “without the aid of engineering calculations, testing, exploratory probing, the removal or relocation of materials, design, or other technically exhaustive means.” In fact, it discourages exhaustive analysis, advising consultants to prioritize timeliness over precision and to characterize cost estimates as “preliminary, order of magnitude budgets.” Relatedly, E2018 does not require the consultant “to prepare or provide exact quantities or identify the exact locations of items or systems as a basis for preparing the opinions of cost.”

E2128-20 is a Guide for Evaluating Water Leakage, not a Legal Treatise on How to Comply With Daubert

While more prescriptive than E2018, E2128 only applies to water leakage assessments, and does not even mention extrapolation. It requires evaluators to understand physics and wall design but says nothing  about statistical competence.  

E2128 explicitly acknowledges its limitations, providing that:

• “It is not assumed or expected that all locations with similar design, construction and service characteristics will be currently performing in precisely the same manner;”
• “Since every possible location is not included in an evaluation program, it is probable that every leak source will not be identified;” and
• “The potential results and benefits of the evaluation program should not be over-represented.”

To this end, it requires clear disclaimers:

• “A statement stipulating the limits of the investigation should be included in the report;”
• “A statement stipulating the limits of the investigation and the starting premise of the investigative program should be included in the report;” and
• “A sufficient number of inspection locations must be selected to accomplish this objective. If constraints on the program preclude a sufficient number of locations, the results should be so qualified.”

Put differently, E2128 allows for qualitative leak detection—but it is not a statistical framework that permits experts to leap to 100% failure claims or multi-million-dollar estimates without rigorous methodology. In fact, E2128 does not include any guidance on cost estimation for repairs.

The Haughton and Murphy Article is Silent on Extrapolation

Written by two contractor expert witnesses, this article criticizes what the authors characterize as “assumptions” of “laypersons” about qualitative sampling. Importantly, their approach, like the cited ASTM standards, favors convenience over reliability. In the introduction, the authors exhaustively lay out the following “hinderances” to random sampling: “aesthetic or logistical constraints imposed by the building owner,” “access constraints,” “legal limitations on access,” and “high costs.” Convenience is not a Daubert factor.

The authors criticize random sampling because of, among other reasons, the rule that “99% of the sources of water infiltration are found at 1% of the building envelope.” A judge may be persuaded that this statement is an analogue to the facts giving rise to the Supreme Court’s holding in General Elec. Co. v. Joinder, 522 U.S. 136, 146 (1997) where extrapolation opinions were prohibited due to the “analytical gap between the data and the opinion proffered.” Indeed, neither E2018-15, E2128-20, nor the Haughton and Murphy Article indicate that they should supplant the court’s gatekeeping function as to admissibility of expert opinions.

D.R. Horton is not a Free Pass

Plaintiff's lean on — a Frye era opinion — to justify extrapolation based on E2018-15 and E2128-20 compliance. In D.R. Horton, the First District, however, found only that the plaintiff’s experts’ extrapolation opinions were based not on new or novel scientific methods or techniques, finding that Frye did not preclude the admission of the expert’s qualitative extrapolation. “Under Daubert, the Frye test of general acceptance in the scientific community is only one factor among several in assessing the admissibility of scientific evidence.” Brewington v. State, 98 So. 3d 628, 630 n.2 (Fla. 2d DCA 2012). Also under Daubert, courts are to consider whether the expert is qualified to opine as to statistical extrapolation, whether those extrapolations are based upon sufficient facts or data, whether they are the product of reliable principles and methods, and whether the experts has applied the principles and methods reliably to the facts of the case. Simply put, D.R. Horton isn’t the whole story.  

To end with another quote, "Do not put your faith in what statistics say until you have carefully considered what they do not say.” (Former Australian Speaker of the House of Representatives, William W. Watt). Savvy litigators should be prepared to argue that what these experts “do not say” under D.R. Horton is even more important as what they claim.