Less than Perfection: Demystifying the Standard of Care for Design Professionals

This article examines the importance of consideration of the standard of care from precontract, through contract negotiation, and into litigation to provide practitioners with practical insight and, hopefully, some tools to better understand pitfalls related to the standard of care. More specifically, this article delves into implications associated with a contractually defined standard of care. Next, it examines how and to what extent the standard of care can be impacted on plans and specifications developed by design professionals that are less than fully complete. Finally, this article examines the necessity for and qualifications required of an expert witness testifying regarding the standard of care.

How Is the Standard of Care Defined?

The idea of the “standard of care” evolved through the common law idea that professionals should be judged according to some sort of generally accepted behavior. The definition of the standard of care has evolved over the course of the past two centuries. Today, the standard of care generally can be defined as the degree of care and skill ordinarily exercised by practicing professionals performing similar services under similar circumstances. While states have a tendency to define the standard of care in slightly different ways, this definition is generally accurate from a nationwide perspective. “Regardless of any contractual provisions setting forth the architect’s or engineer’s standard of care, the designer owes the public and others with whom he does not contract the same standard of care as that required under common law.” “This is generally the case even where the designer contracts to a higher standard of care with the owner.”

Can the Standard of Care Be Modified by Contract?

Defining the Standard of Care via Contract

When the American Institute of Architects (AIA) first began putting out its standard form contract, it declined to include a definition of the standard of care in the B101 Standard Form Contract Between Architect and Owner. However, over time, the AIA began to realize that architects and others utilizing the standard form contract documents were inserting definitions of the standard of care and that, in many instances, the standard of care that was inserted into contracts was incorrect. As a result, in 2007, for the first time, the AIA inserted a definition of the standard of care into its contract form.

The AIA form agreement for owner architect (B101-2007) provided:

§ 2.2 The Architect shall perform its services consistent with the professional skill and care ordinarily provided by architects practicing in the same or similar locality under the same or similar circumstances. The Architect shall perform its services as expeditiously as is consistent with such professional skill and care and the orderly progress of the Project.

Similarly, the Engineers Joint Contract Documents Committee (EJCDC) form agreement for owner-engineer (E-500 2014) provides:

6.01 Standard of Performance

A. Standard of Care: The standard of care for all professional engineering and related services performed or furnished by Engineer under this Agreement will be the care and skill ordinarily used by members of the subject profession practicing under similar circumstances at the same time and in the same locality. Engineer makes no warranties, express or implied, under this Agreement or otherwise, in connection with the Engineer’s services.

Finally, the ConsensusDocs 240 form agreement between design professional and owner provides:

1.1 STANDARD OF CAREDesign Professional shall furnish or provide the architectural and engineering Services necessary to design the Project in accordance with Owner’s requirements, as outlined in Owner’s Program and other relevant data defining the Project, which are attached as Exhibit A. The Services shall include Basic Services plus any Additional Services as may be authorized by Owner. Services shall be performed in accordance with the standard of professional skill and care required for a project of similar size, location, scope, and complexity, during the time in which the Services are provided.

In the event the standard of care is not expressly stated in a contract, the default will be to fall back to the common law definition of the standard of care as adopted through state law and related state professional standards. This leads to several interesting questions. First, if there is a default standard available, why do practitioners find it necessary to include a defined standard of care in their contracts? Second, if a standard of care is included in a contract, is it possible that the contractually defined standard of care can be construed to be higher or lower than the common law standard of care?

First, defining the standard of care in a contract sets forth the parties’ expectations of the parties and how the parties intend to carry out the contract. Second, and in line with the above, in the event of a dispute, the contractually defined standard of care serves as the yardstick by which the design professional’s performance will be measured. Third, defining the standard of care in the contract allows counsel and the design professional to align the contract with the terms of the designer’s professional liability policy. The above reasoning provides the guideposts that should be considered by counsel and others in negotiating the standard of care portion(s) of the contract. This necessarily leads to the need to examine how and to what extent the standard of care may be modified.

Can the Standard of Care Be Heightened via Contract?

The previous discussion leads to the obvious question as to whether the standard of care can be heightened via contract. There are some in the legal and design professional communities who contend that the standard of care cannot be modified to require a higher standard than that of the common law standard of care, and many in the legal community advise that modifying the standard of care at all via contract is not advisable. As covered further herein, a key concern is that modification of the standard of care via contract, at a minimum, could negate professional liability insurance carried by the design professional. Further, from a practical standpoint, there is a significant downside to trying to craft standard of care provisions with heightened requirements/obligations upon the design professional’s services because doing so not only can lead to future disputes about whether the heightened standard was met but also (due to the possible negation of insurance coverage) whether there are limited financial resources to recover against.

On several occasions, courts across the United States have found that the standard of care is able to be modified via contract. Further, based on these decisions, one can extrapolate additional situations when the standard of care could be modified by contract and that may in turn be interpreted by a court to lead to a heightened standard of care. Such situations can be broadly refined into three categories: (i) a satisfaction requirement; (ii) a heightened standard requirement; and (iii) an objective criteria requirement.

The Satisfaction Requirement

The first way to modify the standard of care is to include a satisfaction requirement in the contract. By way of example, consider the following clause contained in a design professional’s agreement relating to preparation of designs to satisfy the aesthetic pleasure of the client:

The Architect shall provide Owner with plans and specifications for a three-story brick home in a Craftsman Style which shall in all ways conform to the satisfaction of the Owner.

The effect of modifying the standard of care to “satisfy” the owner makes it difficult, if not impossible, for a factfinder to be able to apply an objective standard to a contractual dispute. Further, it is possible—even likely—that such a clause would fail to comply with the designer’s professional liability insurance.

In First National Realty Corp. v. Warren-Ehret Co., the Court of Appeals of Maryland adjudicated a situation where the performance in a contract was to satisfy a standard of “satisfaction.” In Warren-Ehret, a contract between contractor and subcontractor provided that “the ‘opinion’ of the contractor will control in deciding whether the subcontractor . . . prosecuted the work with promptness and diligence or failed in the performance of any of the agreements contained in the contract.” The court grappled with the proper standard to apply and lengthily examined how to determine what exact “criteria” to apply in such a situation. The court further explained that some courts apply objective criteria (reasonable person test) and some courts allow for subjective criteria (personal satisfaction) to be applied as long as the person performing the review was acting in good faith. Ultimately, in Warren-Ehret, the court determined that regardless of the standard to be applied, the contractor had acted in an arbitrary and capricious manner and therefore under either a reasonable person or a personal satisfaction test, the contractor had breached the contract.

While the above case did not concern the work of a design professional, it is nonetheless illustrative of the potential effects flowing from modifying a standard of care clause to meet a subjective criterion. Provisions providing for “satisfaction” of an owner or contractor as it relates to design services can lead to significant difficulties on the part of the design professional; courts will struggle to interpret both whether the designer has met the contractual standard and exactly which criteria are applicable to the standard itself.

“Highest Standard” Requirement

Another common way that the standard of care is modified can be categorized as a “highest standard” requirement. Oftentimes standard of care clauses require that the design professional perform services that meet the “highest” standard of the profession—i.e., “first-class,” “five-star,” or “expert” level. Consider the following potential modifications to the standard AIA standard of care clause:

The Architect shall perform first class servicesconsistent with the highest degree of professional skill and provided by architects practicing in the same or similar locality under the same or similar circumstances.

or

The Architect shall perform five-star services consistent with the highest degree of professional skill and care provided by architects practicing in the same or similar locality under the same or similar circumstances.

or

The Architect shall perform its services consistent with the professional skill and care ordinarily provided by architects with expertise practicing in the same or similar locality under the same or similar circumstances. The Architect shall perform its services as expeditiously as is consistent with such professional skill and care and the orderly progress of the Project.

Unfortunately, and similar to the satisfaction of the client standard, this highest standard bar was construed by a court as a requirement to perform to the client’s satisfaction. While there is not a significant body of cases examining this specific scenario, even if a highest standard bar was not construed as a satisfaction requirement, such language could be construed to require a standard of “error-free service.” It is easy to imagine counsel for the party opposed to the design professional arguing that “five-star” or “first-class” is a higher standard than that of the common law standard and creating significant problems for a design professional. Potentially even more problematic is the use of the term “expert” in a standard of care provision. As discussed below, specific requirements are applicable to expert requirements and use of such terminology can potentially lead to significant issues. As the above cases make clear, unclear language contained in a contract can have serious repercussions, including creation of a standard that may be impossible to satisfy.

The “Objective Criteria” Standard

The “objective criteria” standard refers to standard of care language that seeks to have the service meet some objective goal. Objective criteria are the most litigated expansion of the standard of care. For example, consider a scenario where a designer agrees that a building will meet certain energy-efficiency standards and/or meet all applicable building codes during all design phases. Such objective criteria requirements have been construed by courts to constitute an express warranty that expands the standard of care.

In School Board of Broward County v. Pierce Goodwin Alexander & Linville, the Florida Fourth District Court of Appeal considered, among other things, whether the trial court erred in determining the standard of care applicable to an architect. In Pierce Goodwin, the plaintiff, School Board, hired the defendant, Pierce Goodwin, to provide plans and specifications for the renovation of a high school. After a number of change orders were required on the project, the School Board filed suit against Pierce Goodwin arguing that Pierce Goodwin was responsible for the added costs from change orders because the changes in question resulted from plans and specifications failing to conform to applicable building codes. At trial, the School Board argued that the standard of care applicable to Pierce Goodwin “was whether the initial plans were code-compliant as required by the contract.” Pierce Goodwin argued that the standard of care was whether “it performed its duties with ordinary and reasonable skill.” The trial court agreed with Pierce Goodwin and instructed the jury to limit damages to those “arising from negligent performance.” After the jury found for Pierce Goodwin, the School Board appealed. On appeal, the School Board argued that the standard of care was heightened via contract as a result of the following provisions:

2.1.3 As to all services provided to this Agreement, the Project Consultant [the architect] shall furnish services by experienced personnel and under the supervision of experienced professionals licensed in Florida and shall exercise a degree of care and diligence in the performance of these services in accordance with the customary professional standards currently practiced by firms in Florida and in compliance with any and all applicable codes, laws, ordinances, etc.

2.1.4 As to any drawings, plans, specifications or other documents or materials provided or prepared by Project Consultant or its Sub-Consultants, the Project agrees same:

…

.4 Comply with all applicable laws, statutes, rules and regulations, building codes and Owner’s [the school board] guidelines and regulations, which apply to or govern the Project . . .

2.1.5 All professional design services and associated products or instruments of those services provided by the Project Consultant shall:

.1 Be in accordance with all applicable codes, laws, and regulations of any governmental entity, including, but not limited to, [list of regulatory entities] with the Owner serving as the interpreter of the intent and meaning of … any other applicable code[.]

The appeals court agreed and explained that “[b]ecause building codes sometimes require interpretation, risk is frequently involved as to whether design plans are code-compliant.” As such, the appeals court determined that the contract “unambiguously allocated to the architect the risk for costs and expenses attributable to design plans that were not code-compliant.” Further, the appeals court determined that the contract’s plain language required that the architect committed itself to a higher standard of care because “during all phases of the architect’s performance, delivery of design plans for a building that would be code-compliant, rather than merely requiring plans prepared with ordinary and reasonable skill services[,]” was required.

Can the Standard of Care Be Limited via Contract?

The fact that a design professional has been held to higher standards of care via contract begs the question as to whether a design professional can lessen the standard of care via contract. The short answer is “maybe.” In at least one case, a court has permitted an architect to limit liability flowing from its supervision services via contract language, stating that the design professional would not be responsible for its failure to discover faulty contractor work. Notably, in this case, the standard of care related to supervision services rather than the design itself.

Effect of Less-Than-Final Design on the Standard of Care

Typically, design professionals’ primary objective is to work through the design process to produce final, sealed, issued-for-construction design documents. Usually, standard of care questions arise from those final design documents. However, there may be other situations in which project participants rely upon designs that are not final. A fair question is whether a claim for failure to meet the standard of care can be made with respect to a design that is “not final” (also referred to as “preliminary”).

The case of Middlesex Corp. v. Fay, Spofford & Thorndike, Inc. examined a situation where several standard of care issues arose regarding preliminary engineering designs. The case involved a project to replace an existing bridge undertaken by the Massachusetts Department of Transportation (MDOT) pursuant to a “Best Value Design-Build Procurement” process. Pursuant to that process, MDOT first short-listed qualified design-build entities, who were then provided requests for proposals (RFPs) that contained preliminary drawings. The preliminary drawings were intended to be 25 percent complete. The qualified design-build entities receiving the RFPs were invited to submit fixed-price proposals to complete the design and construct the project.

Middlesex Corp. (Middlesex), a roadway/bridge contractor, approached Fay, Spofford & Thorndike, Inc. (FST), an engineering and design firm, to enter into a teaming agreement to prepare a proposal to submit in response to the RFP. Among other things, the teaming agreement provided that FST was to provide professional design services for “additional preliminary design” to enable Middlesex to prepare cost estimates for the proposal. The teaming agreement included a “standard of care” provision that provided, in part, FST’s performance of its services was “subject to a professional standard of care” defined to be “that degree of skill and care normally exercised by practicing professional engineers performing similar services on similar projects under similar conditions.” Thus, FST’s scope was to perform preliminary design work to an ordinary standard of care for preparation of the proposal to submit in response to the RFP. FST was paid $300,000 for this preliminary design work.

Using FST’s preliminary design work, Middlesex submitted a bid that was approximately $3.5 million lower than the next lower bidder; MDOT awarded the contract to Middlesex. During project execution, several issues arose that ultimately resulted in Middlesex filing suit against FST. Middlesex asserted, among other things, a breach of contract claim (breach of the teaming agreement) and claims of professional negligence. Both claims alleged that certain FST designs failed to meet the standard of care provision in the teaming agreement. Generally, Middlesex contended that FST’s preliminary design work was insufficient in that it led to a lower bid amount, and had the design work been properly performed, Middlesex would have had a higher bid and made more profit. The case proceeded through a bench trial.

The trial court analyzed FST’s designs, including the structural steel arch design for a new replacement bridge. For this scope, FST engaged a specialty subconsultant with expertise in bridge design for assistance. As noted above, MDOT provided preliminary designs that depicted the intended structural steel design for the bridge, but the FST design team determined early on that the MDOT preliminary design was inadequate. Accordingly, the design team considered using a different structural steel design (using additional steel stringers) than the one depicted in the MDOT preliminary design.

Owing to schedule reasons, FST submitted an initial set of drawings to Middlesex based upon MDOT’s preliminary design for Middlesex’s preparation of a construction estimate for the structural steelwork. Shortly thereafter, however, MDOT issued an addendum to the RFP that increased the design loads for the bridge and, in turn, caused significant redesign of various parts of the structure, including the structural steel. Using the new design loads from the addendum, FST prepared a new set of drawings that incorporated its steel stringers structural steel design. But when FST provided Middlesex with the new set of drawings, FST did not advise Middlesex of the changed design using the additional steel stringers. Middlesex ultimately submitted its proposal to MDOT based on the costs estimated from the initial set of structural steel drawings, not the set that included the additional steel stringers.

At trial, evidence established that Middlesex incurred nearly $1 million in additional structural steel costs over the amount included in the bid proposal. The court found that approximately two-thirds of this overrun was the result of “post-award design development and finalization.” The court also noted that design development was contemplated by the teaming agreement and was consistent with the testimony of experts, who testified that construction costs tend to increase with further design in design-build construction. Based on this evidence, the court held that FST did not breach the standard of care with respect to most of the additional costs for structural steel changes.

However, with respect to the additional steel stringers incorporated into the preliminary design by FST before the proposal was submitted, the court held that FST breached the standard of care by not alerting Middlesex that the additional steel stringers were added on the new set of drawings. The court did not cite specific expert testimony in support of its holding but noted that the additional steel stringers on the new set of drawings were part of multiple bound volumes of bid documents and that FST provided no notice to Middlesex of the changed design. Thus, while there was no finding that the preliminary design itself was somehow insufficient, the court found that the administrative process of communicating the change in the preliminary design was a breach of contract and not what other practicing professional engineers performing similar services on similar projects under similar conditions would have done.

The MDOT project also had a sizable paving component. For the paving scope, MDOT issued an addendum during the RFP process that increased the thickness of asphalt to be laid at various locations. FST failed to incorporate the addendum changes into certain drawings provided to Middlesex for cost-estimating purposes to prepare the bid proposal. Middlesex claimed FST breached the standard of care by failing to incorporate the addendum changes into the preliminary design drawings used for cost-estimating purposes to prepare the bid proposal. At trial, the evidence showed that Middlesex incurred over $125,000 in paving costs over the amount included in the bid.

FST conceded it erred by not incorporating the addendum changes into the preliminary design drawings but argued that the standard of care does not require perfection. Put another way, FST posited that the mistake was within the range of “acceptable” mistakes for which it should not be found in breach of contract. The court, however, sided with Middlesex on this issue and held that FST breached the standard of care by not incorporating into the preliminary design drawings the addendum changes issued by MDOT related to paving.

Middlesex also alleged that FST’s designs regarding post-tensioning and bearings breached the standard of care. The post-tensioning design was related to the structural steel and was a design element not included as a part of MDOT preliminary drawings. The court noted that there were some discussions between Middlesex, FST, and MDOT during the proposal process regarding the post-tensioning design, although some of the evidence regarding the details of the discussions was inconclusive. After award of the contract by MDOT to Middlesex, more discussions took place that made MDOT more comfortable with the post-tensioning design. Although Middlesex claimed that almost $240,000 of additional costs were incurred with design development of the post-tensioning system not included in the bid, the court found these costs to be “exactly” the type of post-award design development anticipated by the teaming agreement. The court also denied Middlesex’s claim for $128,000 in additional costs related to the bearings, finding that these costs resulted from post-award design development and that FST did not breach the standard of care with respect to the post-tensioning or bearing design work.

Middlesex also contended that FST’s drainage system design failed to meet the standard of care. For the drainage system, FST used a different approach than used in MDOT’s preliminary drawings. The court found the approach used by FST was less costly, was consistent with all applicable design codes, and had been used on many bridges across the country. FST’s different approach also was discussed among FST, Middlesex, and MDOT during the proposal stage and was approved by Middlesex and MDOT. The proposal pricing prepared by Middlesex for the drainage system also was based on the different design approach.

After the contract was awarded, and owing to maintenance concerns, MDOT changed its mind and insisted on returning to the design shown in the original MDOT package. Middlesex initially requested a change order from MDOT but later withdrew the request. At the time the change order request was withdrawn, Middlesex and FST were still having difficulty making MDOT comfortable with the post-tensioning system, which was a higher priority issue for Middlesex.

Middlesex claimed that FST breached the standard of care by failing to know MDOT would ultimately reject the different design approach. The court disagreed. The court cited that (i) the design was consistent with applicable codes and standards, (ii) MDOT initially believed the design to be reasonable when it approved the proposal with such design included, and (iii) Middlesex initially sought a change with respect to MDOT’s reversal. The court held that “[t]here appears to be no reason to charge FST with Middlesex’s strategic decision not to press this claim.”

The Middlesex case is an instructive decision for purposes of assessing liability for breach of standard of care claims, and answers the following questions:

• Is it possible for a “not final” design to fail to meet the standard of care? Yes. The Middlesex court found two instances where FST failed to meet the standard of care with respect to the preliminary design services. The fact that the Middlesex/FST teaming agreement provided that FST would be providing the preliminary design services (and was paid specifically for its preliminary design work) was important, but the court had no reluctance to making rulings on standard of care claims surrounding preliminary designs. Notably, however, the two instances where the court held that FST failed to meet the standard of care were the types of issues that could have occurred regardless of whether the design services were preliminary or final.
• Does the standard of care for a “not final” design need to account for further design development? Yes. The Middlesex court consistently recognized design development as a natural and expected reason why a final design may be different than a preliminary design. In construction, design development and progression begin with conceptual design before moving to schematic design, design development, and final construction documents. Even though most design professionals and those in the construction industry are familiar with the well-known design phases, it can be difficult to draw sharp lines between the phases. More importantly, it is typical for changes to occur between each of the phases. Thus, a standard of care for any design that is preliminary in nature must make allowances for potential design changes as it progresses from a preliminary design to the final design.
• Does the standard of care for a “not final” design allow for imperfection? It should. The Middlesex court found that FST erred by not incorporating the addendum changes issued by MDOT related to paving into the preliminary design drawings and that FST’s mistake breached the standard of care. The court, however, did not address or note other potential mistakes (i.e., errors or omissions) that also might have been made by FST with respect to the preliminary design. It is a fundamental principle that the standard of care does not require perfection. Some might contend a “not final” design may have more imperfection by definition. However, unless established to a different higher standard in the applicable contract, the standard of care for a preliminary design must have some allowance for imperfection.

There is not a considerable amount of caselaw addressing standard of care claims with respect to “not final” design services. The Middlesex case provides an example of how the situation may arise, but such a situation—i.e., a contractor and designer entering into a teaming agreement to prepare a proposal with the designer providing preliminary design services—is not necessarily unique. At times, owners are motivated to attempt to reduce the overall time for a project by using “not final” design documents to obtain construction bids and enter into construction contracts. Along these lines, an increasingly used design-assist process, in which a contractor is engaged early in the design process to collaborate with the design professionals, could be another situation where contractual relationships are established using “not final” design documents. No doubt there can be a multitude of other situations in which “not final” design documents are used and relied upon by project participants, which leads to the potential for claims to be made by disappointed project participant(s) that the “not final” designs relied upon failed to meet the standard of care.

As such, design contracts should address whether preliminary designs will be used for purposes of establishing other contractual relationships. If so, the scope of the expected preliminary design should be specified as clearly as possible with the expected level of progression of design and other expectations for the preliminary design. As addressed above, a design standard of care provision also should be included in the design contract.

Designers preparing and issuing preliminary designs for use by others should include qualifications on their work product to identify the use for which the designer has been informed the preliminary designs are intended to be used and to prohibit other uses. Generally, the underlying design basis, such as use of codes and standards for the preliminary designs, also should be identified. Designers also should clearly identify that the preliminary design work product is just that—preliminary—and that further design development is expected, with the potential for changes. Predictions of a range of future changes could be helpful if the designers have a sound basis to provide such predictions. Additionally, after preliminary designs have been issued, designers need to promptly communicate significant changes as the design inevitably progresses.

Is an Expert Required?

Whether established by contract or common law, the standard of care for design professionals is generally judged by comparison to other similar design professionals performing similar services in similar circumstances. This raises a frequent litigation question of who can opine that the standard of care has, or has not, been met.

Like the concept of the standard of care itself, it is difficult to establish black-and-white rules regarding who can opine about a design professional’s standard of care. Generally, establishing that a design professional has breached the standard of care usually requires expert testimony, provided the claim is one alleging professional negligence as opposed to ordinary negligence. There are limited cases in which courts have permitted claims for professional negligence to be pursued against design professionals without expert testimony, but those cases are the exception rather than the rule.

As part of tort reform legislation, some states have enacted “certificate of merit” statutes applicable to design professionals that provide some guidance regarding who may be considered qualified in those jurisdictions to opine about meeting the standard of care. Generally, “certificate of merit” statutes require a plaintiff to obtain an opinion from a design professional that a professional malpractice claim has merit, with failure to do so resulting in dismissal of the complaint. For example, in California, a claimant asserting a professional malpractice claim against a licensed architect, engineer, or land surveyor is required to obtain a certificate from a third-party design professional licensed in California or another state “in the same discipline as the defendant.” In New Jersey, an affidavit must be obtained from a similar design professional licensed in New Jersey or another state with “particular expertise in the general area or specialty involved in the action, as evidenced by board certification or by devotion of the person’s practice substantially to the general area or specialty involved in the action for a period of at least five years.” In Texas, an affidavit is to be obtained from a “third-party licensed architect, licensed professional engineer, registered landscape architect, or registered professional land surveyor who: (1) is competent to testify; (2) holds the same professional license or registration as the defendant; and (3) practices in the area of practice of the defendant and offers testimony based on the person’s: (A) knowledge; (B) skill; (C) experience; (D) education; (E) training; and (F) practice.” While perhaps helpful for the purpose of precluding meritless professional negligence actions, certificate of merit statutes, on their own, do not necessarily establish the requirements for competence and admissibility of evidence at trial regarding the standard of care.

Trial courts and arbitrators serve as the gatekeepers for expert testimony. Under the Federal Rules of Evidence, Rule 702, a witness may be qualified to provide expert opinion testimony if qualified by “knowledge, skill, experience, training or education.” Generally, an expert witness providing an opinion regarding a professional design standard of care is not necessarily required to be licensed as a design professional or even practice in the design discipline at issue. However, there are cases where a proposed expert has been precluded from offering an opinion about the standard of care due to a lack of appropriate qualifications. While each case is dependent upon particular facts and circumstances, the following summarizes some notable cases where experts were held to be unqualified to offer a design professional expert opinion:

• In Brennan v. St. Louis Zoological Park, a professional engineer was not qualified to testify regarding an architectural standard of care despite the engineer’s 35 years of experience working with and overseeing architects on various projects.
• In Walker v. The Bluffs Apartments, a licensed residential builder and building inspector was not qualified to testify regarding an architectural standard of care. The court held that “[a]lthough Lain’s [the proposed expert] resume shows that she is a licensed residential builder and a licensed building inspector and teaches building codes to various groups, there is no evidence that she has designed or constructed any structure. Although Lain may be versed in building codes and in the inspection of buildings, there is no evidence in the record that she has any architectural experience or training. The trial court did not abuse its discretion, therefore, in finding that Lain could not properly testify as to an architect’s standard of care.”
• In United States ex rel. J&A Mechanical, Inc. v. Wimberly Allison Tong & Goo, the president of a construction management and consulting organization was not qualified to testify regarding an architectural standard of care for design and construction administration.
• In Pennington v. Memorial Hospital of South Bend, Inc., a risk and safety consultant was not qualified to testify regarding the architect’s standard of care for swimming pool design. The court noted that the consultant testified in his deposition that “he had no experience, education, or training in ‘how to engineer the design of a swimming pool’ and was ‘not qualified to give an opinion’ on the ‘standard of care applicable to any architect’” who may sign or stamp a design.

The standard of care can involve a broad spectrum of design issues—from relatively straightforward to highly complex and technical. Design professionals are likely to have a more comprehensive knowledge of the entirety of factors involved with a particular design issue. Moreover, design professionals in a specific discipline, such as architecture or engineering (or even subdisciplines such as mechanical engineering or structural engineering), are likely to have a different depth of knowledge regarding the entirety of factors involved with a particular design discipline. As addressed herein, there are numerous other factors that can bear on the standard of care and how similar design professionals, at approximately the same time and in the same location, may perform and fulfill their design duties. Therefore, to fairly criticize and credibly allege that a design professional has failed to meet the standard of care, it is prudent for counsel to choose an expert with specific knowledge and experience with the particular design service at issue and with at least the same level of knowledge, skill, experience, training, and education as compared to the design professional alleged to be at fault.