Engineering firms exempt from discovery in case of Clarksburg's 'unstable' Lowe's

By John O'Brien | Jul 22, 2013

CLARKSBURG – Two engineering firms won’t be required to answer discovery requests in a lawsuit that alleges a Lowe’s Home Improvement store in Clarksburg was built on unstable land.

U.S. Magistrate Judge John S. Kaull ruled July 5 that two engineering firms – Fayette Engineering and Triad Engineering – that performed work for Lowe’s will not be required to produce the information they obtained after April 2007 to defendant THF Clarksburg Development Two.

Lowe’s sued THF in U.S. District Court for the Northern District of West Virginia on April 26, 2012. THF leased land to Lowe’s at the Newpointe Plaza shopping center in 2002.

“Defendant obviously has had access to the Lowes pad site since near the inception of the claim,” Kaull’s order says.

“Prior to leasing it to Lowes, as the developer, Defendant had complete access to the site. It obviously had its own expert soils engineer before and after it was first made known of Lowes’ potential claim.

“Its expert soils engineer conducted the investigation it deemed appropriate to assist Defendant in evaluating the claim being made.

“This investigation obviously involved inspections, soil borings and monitoring over a period of time in 2004 and to 2007. Defendant’s engineer even had access to much of Plaintiff’s engineers’ work prior to Plaintiff’s counsel retaining those engineers [Fayette and Triad] as litigation consultants on or about April 25, 2007.”

The lawsuit says Lowe’s and THF entered into a site development agreement that required THF to perform certain site development work on the tract it was leasing to Lowe’s, and Lowe’s agreed to pay THF more than $4 million.

Part of the agreement said THF was responsible for “the stabilization of subgrades and compaction of soils,” the complaint says.

On April 9, 2002, THF’s engineering firm issued a Geotechnical Engineering Certification to Lowe’s that stated the building pad on the tract had been adequately prepared to support construction of the store, the complaint says.

“After construction of the Lowe’s store in the Newpointe Plaza shopping center was completed, Lowe’s discovered that the store was experiencing structural damage as a result of abnormal settlement,” the complaint says.

Lowe’s notified THF of the alleged problem on April 20, 2004. The settlement involves differential vertical settlement and lateral spreading caused by a combination of shale embankment vertical settlement and deep-seated slope movement in that embankment, the complaint says.

Lowe’s is suing for breach of contract, breach of warranty and breach of common law covenant of quiet enjoyment. It seeks at least $5 million, as well as an award to fund the future monitoring of the site.

Fayette and Triad became litigation consultants for Lowe’s on April 27, 2007. THF sought information on work they did while consultants.

From the West Virginia Record: Reach John O’Brien at

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