John Bergin | Kilpatrick Townsend | May 24, 2018
Kilpatrick Townsend recently won a long and hard-fought battle resulting from the construction of a MLB stadium and wanted to share some practice pointers for how to prevail in a lengthy, nasty, and highly-complex construction dispute resulting from a high-profile project such as a stadium for a professional sports team.
In December 2017, Pennsylvania’s intermediate appellate court affirmed a defense verdict, obtained by my team at Kilpatrick Townsend, for the design/construction manager of a major league baseball stadium (PNC Park in Pittsburgh). The court issued its ruling following extensive discovery and motions practice, a 6-week bench trial in 2010, and two defense verdicts (directed verdict on a limitations issue of first impression and on the merits). The case began in 2002 when a subcontractor sued the project’s design/construction manager and its joint-venture members, municipal owner, and the Pittsburgh Pirates. More specifically, the subcontractor filed three separate multi-count complaints (with contractual, statutory, and tort counts) seeking more than $20 million in compensatory damages plus unspecified punitive damages and substantial interest. Our five key takeaways for complex, multiparty cases follow:
1. Identify the Key Claim(s)/Issue(a) at the Outset: While the plaintiff subcontractor filed three complaints with more than 15 counts, all of them relied on the subcontractor’s allegation that the project’s design/construction manager had conspired with the owner and the Pirates to improperly issue a default notice so that they could access the subcontractor’s performance bond to pay for cost overruns and delays. Refuting that allegation was the central focus from the beginning to the end of the case.
2. Narrow the Case Before Discovery: Since we represented five clients defending more than 15 counts, we had to narrow the case as early as possible. We did our due diligence and then convinced the judge to dismiss the far-fetched and legally-defective claims against the municipal owner and the Pirates. Similarly, we significantly narrowed the claims against the design/construction manager.
3. Know the Facts: Though voluminous, we identified the key facts for all aspects of the project – bidding, award, project preparation, project performance issues and eventual default notice, post-default notice performance, and post-project issues. This includes the relevant project documents and the project executives. Credible fact witnesses and experts who teach (rather than preach) to the judge and/or jury are absolutely critical to success.
4. Simplify/Support Your Primary Arguments: Judges and juries must be able to understand your primary arguments before they can agree with them and rule for your client. The strongest defenses focus only on the most important arguments, present those arguments in a simple and easy to follow manner, and rely on credible facts provided through first-hand documents and testimony. Judges and juries rarely care about mere opinions. Even the most complicated construction disputes can be distilled into one or a few fundamental arguments that a judge and/or jury can follow – and use to rule for your clients.
5. Convince the Fact Finder that Your Client Acted Appropriately. At trial – whether bench or jury – you must clearly establish that your client did the right thing under the circumstances and must be made whole. In short, this means establishing that your client was wronged and that the judge/jury must right that wrong by awarding damages (monetary or otherwise) or render a defense verdict.