CityCenter has asked the Nevada Supreme Court to overturn a ruling that could delay demolition of the flawed Harmon hotel tower and a trial over defects in the structure.
CityCenter filed an emergency motion Thursday asking the court to overturn a July ruling by Clark County District Court Judge Elizabeth Gonzalez that CityCenter couldn’t use extrapolation techniques to prove its claim the Harmon is riddled with defects and is unsafe.
CityCenter said its structural engineering expert, Gary Hart, evaluated 397 of the Harmon’s critical structural elements and found all but one defective. The elements selected included components of Hart’s choosing “based on their centrality to the whole building’s structural performance under gravity, wind and earthquake loads,” CityCenter attorneys said in the motion.
“He then used his 40-year expertise to infer (i.e. extrapolate) that another 1,072 related, untested structural components” were defective, the CityCenter motion said.
But, CityCenter complained, Gonzalez “has ruled that this extrapolation testimony is not admissible because the 397 test locations examined by Hart were not chosen by a process of random selection.”
The larger issue, CityCenter said, is that the issue of randomness and selecting what elements to test in buildings in defect cases is of “fundamental public importance with the potential of being repeated in future commercial construction defect cases.”
Even as it plans to do more testing of the Harmon if necessary to prove its claims and overcome the extrapolation ruling, CityCenter and its half owner MGM Resorts International told the Supreme Court on Thursday that it would prefer to avoid the time and expense of the testing and have the jury in the defect trial decide if previous testing was thorough enough and sufficiently random to establish the condition of the building.
The testing typically involves removal of concrete in walls and other structural elements to determine if required reinforcing steel was installed and whether it was placed, spaced and tied together properly.
The extrapolation ruling limited the potential damages CityCenter could seek against the Harmon’s builders. CityCenter says the ruling prevents it from recovering damages for the 73 percent of the “defective structural elements that were not specifically tested.”
The “emergency” nature of the appeal relates to a hearing Oct. 17 in which Gonzalez found that if CityCenter begins additional testing, it will have waived its right to appeal her earlier extrapolation ruling.
“The notion that CityCenter should be forced to incur additional millions of dollars in testing costs and sanctions — on the condition that it waive its right to appeal this ruling — just to be permitted to present its own damages evidence, shocks the conscience,” CityCenter complained in Thursday’s filing.
Gonzalez this summer gave CityCenter permission to demolish the Harmon as a business decision, though it’s unknown when that will happen.
Attorneys for CityCenter and contractors led by Tutor Perini Building Corp. are gearing up for a June trial over two main issues: Whether CityCenter owes Perini $191 million for work on the Harmon and who is responsible for the defects at the unused, 26-story, $275 million Harmon.
Tutor Perini says the building is safe, its flaws can be fixed and that CityCenter wants to remove it because it has no use for its hotel rooms given the abundance of rooms on the Strip.
CityCenter says contractors are responsible for widespread problems that could cause the Harmon to collapse in a sizeable earthquake and that it’s suffered more than $300 million in damages.
It’s unknown when the Supreme Court will act on Thursday’s emergency motion, which Tutor Perini will have a chance to contest.