Perfectionist Plaintiff Demanded All-New Concrete Job Due to Minor Cosmetic Defects

An auto technician held a grand vision of opening a brand-new garage where he’d “trick out” cars with fancy stereos, lights, and parts. To start, he hired a general contractor, who then hired a company called Delta to pour the foundation. Unbeknownst to the concrete-pouring company, the gravel supplier responsible for the mix’s aggregate failed to strain out pieces of wood. As the garage’s concrete set, the wood bits rose to the surface and marred the foundation’s visual appearance. The auto technician had built a reputation as a perfectionist who agonized over every detail and every decision. Unhappy with the floor’s appearance, he demanded the concrete company rip it out and replace it.

The concrete company acknowledged that the wood chips had erroneously been mixed in by their supplier. They assured their client that the wood had no bearing on the strength of the flooring and that they would pay for epoxy over the surface. The auto technician flatly refused the offer and again demanded the flooring be repoured. The company reminded him, per their contract, that the only guarantee was that the concrete could survive 4,000 pounds per square inch (PSI) before crumbling. They never guaranteed the appearance of the concrete. The company offered to have the structural integrity tested by a third party, but they were refused — again. A few weeks later, the auto technician woke up and decided to rip out the flooring without notifying the company. In a single day, he hired a crew to dispose of it. Then, he sued the concrete company.

The concrete company turned to Jeffery Reynolds and Jason Kirschberg, partners at Reynolds | Kirschberg, for help after receiving the demand. Jeff and Jason specialized in industry defense cases with an emphasis on commercial, construction, and liability disputes. From the outset, the plaintiff had pie-in-the-sky figures in mind for settlement. In addition to the flooring, he sued for punitive damages, lost profits, and emotional pain and suffering. He also claimed that the defective concrete prevented him from opening his shop, despite hiring another company to redo the work.

In response, Jeff and Jason focused their strategy on whittling down the plaintiff’s extraneous damages to get the case settled for a more reasonable figure. Together, they won motions to have the punitive damages and loss-of-profits claims dismissed. However, once the plaintiff destroyed the concrete, it became clear he was fully invested in litigating the matter. To prepare for trial, Jeff and Jason needed to prove that the concrete company had indeed met their contractual obligations. In particular, they focused on whether the original concrete foundation, that the auto technician destroyed, would have met its structural integrity requirements. The first flooring expert on the case was asked to inspect the impacted slab to give his opinion. Initially he agreed with the plaintiff that the entire slab needed to be torn out and replaced. The plaintiff’s counsel jumped at the expert’s report, intending to parade him as their star witness. Consequently, Jeff and Jason sought out another expert — one would take a deeper look at the concrete and actually test its strength.

They hired a structural engineering expert to recreate the mix with the same wood-contaminated aggregate. The expert experimented by adding more wood chips to the sample. His results showed that not only was the concrete sound, but it was also significantly stronger than the contractual specifications. As the trial neared, Jeff and Jason knew the plaintiff’s argument was simple and relatable to a jury: “I paid for X, but I got Y.” Meanwhile, their own arguments required technical understanding of concrete mixtures and PSIs. To make these concepts approachable, they brought on DK Global to create a 7-minute visualization of their experts’ findings.

The animation opened with a satellite view of the construction site followed by walk-through footage of the original concrete slabs. A reconstruction animation of the slabs demonstrated minor cosmetic damage from the wood chips. Captions and screenshots from the records explained the PSI requirements. A graph of the tested concrete samples showed how it passed the strength requirements. The final part of the animation recreated what the garage would have looked like if the plaintiff had accepted the offer of an epoxy coating. It showed how the epoxy coating would have been applied and the showroom quality that the garage could have had.

At the initial mediation, the plaintiff’s settlement offer was $777,500. However, the defense’s coup de grâce came when Jeff had the idea to show the first flooring expert the DK Global animation. After they watched the animation together, Jeff asked the expert if it changed his opinion. The plaintiff’s own star witness agreed the epoxy coating would have been a reasonable solution and signed an affidavit in support of the defense. With their star witness having turned on them, the plaintiff agreed to settle the case with the concrete company for $150,000 — with the gravel company responsible for an additional $33,000. The concrete company was happy with the outcome and grateful to avoid the expense of trial. 

Jeffery Reynolds, partner at Reynolds | Kirschberg, has extensive experience in corporate, oil and gas, commercial, and construction litigation. In 2021, the American Arbitration Association selected Jeff as one of its panel arbitrators. He has been rated AV Preeminent by Martindale-Hubbell. He was also named one of Mississippi’s top 50 attorneys by the Mississippi Business Journal, and he has received the Martin Luther King, Jr. Drum Major for Justice award from Jackson State University.

Jason Kirschberg, partner at Reynolds | Kirschberg, received his undergraduate degree from the University of Georgia, cum laude, and his Juris Doctor from the University of Alabama School of Law. Over the years, his settlements and recoveries have totaled over half a billion dollars and fostered industry reforms, market transparency, and improved business practices. He holds licenses to practice law in Mississippi, Alabama, and California, and he is rated AV Preeminent by Martindale-Hubbell.