By early December 1987 Baxter decided we needed another struc-tural engineer to supplement Bill Sloan. He was worried that Sloan would not be forceful enough in courtroom testimony. Baxter did not doubt Sloan's competency, and also didn't intend to drop him as an expert; he just felt we needed a more experienced engineer for the courtroom. We had other reasons to worry about Sloan. Ironies and coincidences in our case abounded, and Sloan presented another one. At the time we hired him, April 1987, he had already done structural consulting work for an architect named Doug Landry. Throughout 1987, as our case dragged on, Landry became busier, until he accounted for about 15% of Sloan's income. In late 1987 Landry took on as associates another architectural firm - Nelson and Packard! From that point it was inevitable that Sloan would, at times, be working on Nelson's projects. We live in a big city, but our suburban area makes it seem like a small town.
Without mentioning Baxter's intention of finding another struc-tural expert (an intention unrelated to Sloan's new association) we confronted Sloan with our concern. The last thing we needed was an ambivalent expert during trial, and we wanted him to opt out sooner rather than later. We talked to Sloan on December 14, as he was surveying the house in preparation for the Judge's upcoming visit.
"We understand you're working for Nelson now," I said. He knew exactly what I was asking.
"Not at all," he said. "I am an independent consulting engineer. I did some work for Landry before I took on your house, and his firm now accounts for about fifteen percent of my income. Even though Landry's joined up with Nelson, I'm not working for Nelson. Their partnership doesn't affect my responsibility to you."
"You mean you will still testify in our case?"
"Yes, I will."
"But don't you feel awkward testifying about something that could affect your income?"
"I wrote my [April 1987] report before Nelson joined Landry, and I will stand behind it," Sloan replied.
So Sloan felt some responsibility toward us and wasn't going to renege on his written report. But could he really testify strongly against the firm that provided him steady income? The courtroom is no place to test conflict of interest. In early January Baxter found another structural engineer, Mr. Charles Banks. Mr. Banks actually does consulting work in `forensic construction', mostly commercial (Sloan does mostly residential work). Neither we nor our friends had heard of him before. Banks at the time was about 60, or 25 years older than Sloan, and much more experienced. Hiring Banks greatly strengthened our case and removed Sloan from a vulnerable position.
Banks's first of many visits to the house took place on January 3, 1988, five days before the Judge's visit. Then on Saturday, January 16, Banks, attorney Baxter and architect Sam Russell came to the house for about three hours, going over every problem area and dis-cussing the structural details. Russell and Banks finally convinced Baxter that the foyer sloped, probably because of faulty construction. In line with what Larry and I had been saying all along, neither Banks nor Russell felt it critical to know exactly why it sloped. Banks came to an interesting conclusion. Because the drywall throughout the house showed almost no cracks, the house must have been built with sloping floors. The floors sloped the minute they were laid down! Had settling taken place after the drywall was placed the walls would have cracked in many places. Banks was amazed. "I don't think anyone used a level when they built this house," he said.
We were encouraged; our case was becoming stronger by the week. At the same time we were dismayed over the mounting costs. Just the January 16 meeting of Baxter, Banks and Russell cost at least $1000. At this rate we wouldn't get to trial for less than $50,000. And Baxter kept reminding us that, under Ohio law, legal fees are not ordinarily recoverable. What about damages? Why should any homeowner ever have to suffer this ordeal?
Banks's work was aided by an unusual development. Cooper, through his attorney, hired an engineer named Frank Noble to survey all our floors for any sloping. We knew the floors sloped because we had taken a carpenter's level over every square foot, and also because Russell and Banks confirmed the sloping. The builders who came to the house when it was for sale also appreciated the slo-ping. In fact anyone with open eyes could see it. But no one had ever systematically measured the degree of sloping. That was Noble's purpose. Mr. Noble, an elderly, highly experienced engineer, headed a com-pany with a reputation for integrity and good work. He and Banks knew each other and seemed like old friends during the survey.
Noble's survey was not an unscientific walk-through like the insurance company's Mr. Anderson had done, but a meticulous, room-by-room check with a `rod and level' instrument. This consists of a surveyor's telescope and a heavy, six-foot wooden staff ruled for precise measurements. The scope sits on a tripod which can be moved from room to room, but within a single room it stays station-ary while the wooden staff is moved around. If the floor is level the hairline of the scope will see the same mark on the staff at all points of the room. The survey lasted took place on Tuesday morning, February 2, 1988 and lasted four hours. Based on the estimated hourly fee of all the participants it was probably the most expensive survey of resi-dential floors ever undertaken. Present were:
Not that everyone was needed. Baxter had to be there and Larry wanted to stay for the whole survey. Banks and Noble did most of the surveying (it takes two people for each measurement), although as the morning wore on both Baxter and Collins helped take some readings (each measurement is confirmed by two people). Even Larry got into the act, holding the wooden staff in some areas. There was no attempt at hanky panky (how could there be with so many lawyers present?). Mr. Noble was making honest measurements. And what did Mr. Noble find? What we already knew. Sloping was everywhere. For example the kitchen floor sloped over 3/4 inch in the span of 12 feet. The foyer: 3/4 inch in 8 feet. The master bedroom: 3/4 inch in 12 feet. The dining room: 1 & 7/8 inch in 16 feet. And the family room dipped one inch in a section only four feet long.
But Mr. Noble found more. The basement floor was also uneven, something we ourselves had not appreciated. And he found the ver-tical steel beams in the basement, designed to hold up the floor above, were of unequal height! The implications of Noble's survey were not lost on the lawyers. They huddled in the corner with their clients (except Cooper, of course, who was not there). At one point Larry overheard Webster (Cooper's attorney) mumble to Pierce: "this makes it look more like a construction than a design problem." Whatever the outcome of the trial, we felt vindicated.