A mediation session will be held March 3 to see if there is room to resolve a lawsuit over building deficiencies at Brookfield Middle School.
If the sides cannot reach a settlement – two previous mediation sessions failed – the next scheduled court date is a trial beginning March 27.
Brookfield Local School District and its partner in the construction of the school building on Bedford Road, the Ohio Facilities Construction Commission, have identified shifting shale as causing the hallway to heave and walls to crack in the middle school. The parties have hired a construction firm to make a second attempt at fixing the problem, with the majority of the work being done starting in mid-May and lasting through the summer.
The parties filed a lawsuit against Timmerman Geotechnical Group Inc. of Akron, a consultant hired to examine soil conditions prior to and during the construction of the building in 2008-11, and prior to the first attempted fix in 2013.
They also sued the original architect, Balog Steins Hendricks and Manchester Architects Inc., Youngstown.
The suit alleges breach of contract and breach of standard of care against both entities, and breach of warranties against Timmerman.
Timmerman still exists, but no longer operates, in accordance with an agreement in which GPD Group, an architectural engineering company based in Akron, bought Timmerman’s equipment and hired most of its employees, said Delbert Channels in a deposition. Channels is director of geotechnical at GPD and a former Timmerman employee.
Timmerman “failed to analyze, appreciate and account for this expansive soil,” the plaintiffs said in their pretrial statement.
Balog, which hired the structural engineer, “had the responsibility to make sure that the soil below would support the structure above,” the plaintiffs said. The company did not “appreciate or account for the expansive soil.”
The first warning of a problem came during original construction when the contractor reported that “the ground seemed to be moving,” the plaintiffs said.
“That warning was ignored,” they said.
In its pretrial statement, Timmerman said it “properly identified the shale” in 2007 and 2008 reports, and recommended ways to “protect” the shale.
“Timmerman’s recommendations to protect the shale were not followed,” the company said.
Timmerman said it advised the school district during construction that the contractor was not protecting the shale, but the school district “took no action,” the company said.
“The contractor also failed to grade the site properly, allowing water to flow toward the area of the school in question, and failed to properly install a sanitary line under the floor in the area of the heave, allowing acidic water to contact the shale,” Timmerman said.
“Water, along with air, are the two key components in shale heave,” Channels said in his deposition.
There are different kinds of shale, and shale heave occurs in “a small minority of shales,” he said.
Timmerman said the 2013 attempted fix failed “because the contractor introduced significant amounts of water and failed to properly encapsulate the shale as Timmerman had recommended.”
The plaintiffs said any attempt to blame the contractor “fails” because the defendants “had to anticipate that water would be in the ground.”
In its pretrial statement, Balog refers to earlier filings as its summary of the case, including a motion for summary judgment in which it says the plaintiffs’ expert witnesses are not architects, rendering the plaintiffs unable to “produce a competent expert opinion” on how the standard of care was breached.
The case has been assigned to Trumbull County Common Pleas Court Judge Andrew Logan. Before trial, he must answer requests for summary judgment filed by the defendants, which ask him to rule on all or part of the allegations based on the voluminous amount of documents and deposition testimony filed in the case, and motions in limine filed by all parties, which attempt to keep out of trial certain testimony, documents and arguments.
The plaintiffs’ witness list contains 13 names, including school Supt. Toby Gibson, Treasurer Jordan Weber and former Treasurer Julie Sloan; OFCC Post-Construction Administrator Rick Swart; Channels and another former Timmerman employee; a representative of Wiss, Janney, Elstner Associates Inc., the firm hired to examine the problems and design the new fix; two employees of Balog; a representative of Shirmer Construction, the company undertaking the current fix; a representative of Richard L. Bowen and Associates, the construction manager of the original project; and the two experts, Joseph Petraeus, who would testify about the geotechnical aspects of the case, and Donald Leinweber, who would handle the structural engineering side.
The plaintiffs’ attorneys estimated a trial would take one week.
Balog’s witness list has three additional names, and Timmerman’s offers no additional names.
