Because it requires litigating the first case a second time, inside the second case, against a different defendant who was not the wrongdoer.

The association has to establish what the developer would have been liable for, what the association would have recovered, and that the shortfall is attributable to the expert rather than to the merits, the developer's solvency, or the association's own litigation choices. Each link is contestable and the association bears all of them.

“We lost and our expert was bad” is not an injury in fact.

What boards weighing construction-defect litigation should take from it

Three things, all decided before the first invoice.

The expert is the case. In a construction-defect claim against a developer, the engineering opinion is not supporting evidence — it is the entire theory of liability and the entire measure of damages. Selecting the expert is a more consequential board decision than selecting counsel, and it is usually made by counsel with the board barely involved.

There is no second bite. If the expert work is inadequate, the association's loss is the case, and Woodbine Park says the association will very likely not recover it from the expert. The engagement is effectively one-shot.

Budget the whole thing at the start. Illinois association litigation of this kind runs for years — six years and 120 motions over a diseased ash tree and a parking rule in one case this year, four appeals over seven years in another. A defect case against a developer is longer and dearer than either.

The prevention point

Most construction-defect exposure is discovered too late because nobody was looking. The association that identifies a defect in year three has options — a developer still in business, a warranty still live, a limitations period still open. The one that identifies it in year twelve has litigation.

A reserve study is the routine mechanism by which a board is made to look at its building on a schedule, and Illinois still does not require one. Outside Chicago, which runs a facade critical-examination regime for buildings over 80 feet, an Illinois association inspects its structure when it decides to.

A note on scope

This is the only Illinois decision in the period touching an association's relationship with its retained expert, and it is a Rule 23 order. On the adjacent question — construction defect and the statute of repose at 735 ILCS 5/13-214 in the association context — there is no 2025-2026 Illinois decision. The governing authority remains older case law.

What to watch next

No petition for leave to appeal was found. Whether an Illinois court addresses expert malpractice in the association context on a record that does establish injury — this one did not reach it.