Design Professional Liability

ENR tipped me off to a story that somehow I completely missed.  The School District of Philadelphia has apparently filed a series of lawsuits against more than two dozen design professionals in connection with work performed on the School District’s Capital Improvement Program.

Because no formal complaints have not been filed – instead the School District filed a Writ of Summons against each design firm which basically tells each firm to expect a complaint to follow – we do not know specifics of the School District’s claims against each firm.  However, a spokesperson for the School District is seek “$2 million” in damages for “errors in the plans and specifications.”   We do know enough about design professional liability claims to wonder whether the School District has any idea what it is doing.

First, the School District has chosen to pursue design firms for cost overruns and design firms only.  The School District apparently has not implicated any of the contractors working on the projects.  Certainly poorly prepared plans lead to their fair share of budget busting change order and delay claims.  However, so do contractors that underbid projects and fail to incorporate design details into their bids.  It simply defies logic that the cause of overruns on everyone of these over two dozen projects projects is solely poorly prepared plans and specifications.  Therefore, the School District has a threshold causation issue it needs to overcome.

Second, to be liable for poorly designed plans and specifications the design firms must have either breached a duty owed under the agreement with the School District or committed professional malpractice.  Many owner-design professional agreements do not require the designer to prepare a set of plans and specifications that contain every detail necessary for construction.  Rather, the agreement will require the contractor to supplement the architects plans and specifications with shop drawings and submittals.  Moreover, architects do not warranty that the drawings represent a complete set of drawings that represent every detail necessary.  It is doubtful that the School District’s contracts with the allegedly liable design firms call for the design firms to prepare plan and specification with the level of detail which includes every element necessary for the work.  Thus, a sucessful breach of contract claim could be perilous.

Like doctors and lawyers,  design professionals are not required to be perfect, they need only act reasonably.  Therefore, a certain number of “errors” will always be found in plans and specifications.  The issue becomes whether the level of errors exceeds what is reasonable.  To prove that the School District will need to engage an expert.  However, because the School District has sued pretty much every well known design firm with experience on the types of projects the School District performs, it may have difficult finding an expert with any crediablity.  Moreover, Pennsylvania is a certificate of merit jurisdiction.  This means that in order to file a malpractice complaint the School District will have to obtain an opinion from a non-conflicted design professional that “there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm.”

Finally, there remains the issue of the head scratching “$2 million” figure that the School District expects to recover.  Assuming that these two dozen design firms worked on separate projects that means each project experienced an average $83,333 in overruns.  This is hardly a smoking gun indicating wide spread defects in plans and specifications.  Furthermore, even if the School District recovered that amount what would it actually net?  The School District has hired outside counsel to prosecute these claims.  The counsel it chose is a respected and more than compentant firm that now doubt will charge the School District a fee comenserate with its abilities.  Therefore, it is concievable the School District will spend at least $83,333 pursuing each claim without any chance of recovering attorneys fees, especially if the claims are are doubtful as they appear.  Surely, the defense firms representing these design teams are not simply going to roll over in the face of such claims.