More and More Standards Require More Controls

Paul R. Gary
February 15, 2007
COLUMN : Legal | Management

Used properly, a hammer can build shelter for people in need. Used improperly, the same hammer can be a blunt instrument of destruction.

It is given that our world involves more and more standards. This requires more and more controls against misuse. We are getting the standards; I am concerned we are not getting the controls.

Let’s agree that industry standards help the fenestration marketplace—when those standards are used to establish common design and performance criteria. The American Architectural Manufacturers Association and ASTM International review and evaluate their procedures and protocols to ensure that the standards they present are relevant and reasonable in the marketplace. One need look no further than the revisions recently suggested to AAMA’s field testing protocol 502-02 to see this ongoing process. Compliance with new product criteria is often demonstrated by standardized product testing. So, we have new product standards demonstrated by standardized testing; fair enough.

The problem, however, is that new product standards can be twisted and “misinterpreted” by adversaries looking to justify conclusions as to causation of damage and, of course, liability. By this, advocates try to give their conclusions an aura of legitimacy even though their methodology, as applied, is anything but scientific.

And soon, the standards available for use by adversaries looking to “prove” defects with fenestration products may reach beyond AAMA and ASTM. 

ASHRAE STANDARD 106P
For example, the recent publication of proposed Standard 106P by the American Society of Heating, Refrigeration and Air-Conditioning Engineers could provide a new tool for litigants. Standard 106P is a proposed set of formulae and assumptions for moisture design analysis in residential construction. Not only does the proposal set forth the means of calculating moisture levels—and here is the rub—it also defines what is “acceptable performance” criteria for wall systems.

Proposed Standard 106P defines its purpose as “to specify performance-based design criteria for predicting, mitigating, or reducing moisture damage to the building envelope, materials, components, systems and furnishings, depending on climate, construction type, and HVAC system operation.” Fundamentally, but realistically, the standard is intended as a moisture analysis methodology for building design with the stated purpose of limiting mold growth. An analysis is made using equations and figures that assume all relevant steps have been taken to limit bulk moisture intrusion, including, for example, ASTM E2112, the standard for window and door installation. Once that analysis is made, the results are evaluated against published thresholds that define acceptable performance.

So what’s wrong with all that? The answer is nothing, if the standard is used reasonably and not applied beyond its intended scope. Problems will arise when advocates looking to create claims use the proposed performance thresholds set out by ASHRAE to “prove” the existence of a sick building and then use new product standardized testing to show that windows and doors are contributing towards a building’s failure to meet the 106P performance criteria and thus are, in the advocate’s opinion, defective. The potential for misplaced reliance on non-fenestration performance models to support an advocate’s conclusion that products are defective underscores a danger with water intrusion modeling and standardized testing.

This is neither a failing of ASHRAE nor standard testing models. Quite to the contrary, the work that ASHRAE does for the HVAC industry is invaluable. What is critical, however, is that the standards and testing promulgated by industry associations like ASHRAE and AAMA must be used and interpreted within their intended scope. Extending these standards to items, products, or testing beyond their scope will ultimately endanger the standards themselves. With that, the good use of our metaphorical hammer will be lost.

Paul R. Gary is principal of The Gary Law Group, a law firm based in Portland, OR, emphasizing legal issues facing manufacturers of windows and doors. He welcomes feedback on articles published in Window & Door and can be reached at 503/227-8424
or
paul@prgarylaw.com.

Paul R. Gary is the prinicipal of The Gary Law Group, a law firm based in Portland, Ore., emphasizing legal issues facing manufacturers of windows and doors. He welcomes feedback about articles published in Window & Door and can be reached at 503/227-8424 or paul@prgarylaw.com.