Hundreds of pools built in and around Central Texas between 2017 and 2023 are afflicted with an alkali-silica reaction (ASR), also known as concrete cancer. This construction defect has led to cracking, leaking, and widespread failures of residential and commercial pools and, in turn, the filing of numerous first-party property claims, third-party general liability claims, and builder’s risk claims. In 2023, a multidistrict litigation (MDL) court was formed to streamline the complex, multi-party litigation. Today, the In re Easy Mix Construction Defect Litigation MDL consists of more than 150 cases originating from more than five Texas counties. Outside of the MDL, there are over 200 pre-suit claims, and new claims continue to be filed every month.
What Is Concrete Cancer?
Alkali-silica reaction, or ASR, is a particular series of chemical reactions caused by alkali hydroxides in the concrete and reactive forms of silica from the aggregates. ASR produces a gel that absorbs water and expands, creating pressure that can cause cracking in the concrete. ASR, which usually takes between five and 12 years to develop—although there are exceptions—needs three things to develop and spread: (1) alkalis, which are present in the cement; (2) reactive silica, which is present in the aggregate(s); and (3) water.
Prevention: The Earlier, the Better
If the alkali and reactive silica contents in concrete are reduced below an acceptable threshold, ASR can be prevented. One way this can be accomplished is by reducing the cement content of the concrete mixture or by replacing a portion of the cement with supplementary cementitious materials such as fly ash or slag. Reactive aggregates can be avoided entirely or, at least, minimized if they are properly identified based on past field performance or by appropriately testing the cement and aggregate materials. Ultimately, the best way to prevent ASR is education before the pool is constructed.
In terms of repairability, most homeowners and property owners seek complete removal and replacement of their pools, contending that removal is the only long-term solution given the progressive nature of ASR. Costs to rebuild after demolition are often double and even triple the original cost of construction.
Standard of (Who) Care(s)?
Certain material suppliers doing business in the Central Texas area sold the cement and/or aggregate materials at issue to certain concrete mixers over a period of years. Pool builders hired those concrete mixers and/or installers to install concrete to homeowners’ and property owners’ pools. Those concrete mixers used the cement and aggregate materials at issue to make concrete mix for use in pools between 2017 and 2023. Unlike infrastructure projects, current applicable codes, standards, and/or guidelines in Texas for swimming pool construction do not explicitly state or require the careful selection and vetting of such materials. These codes and guidelines include the International Code Council’s International Swimming Pool and Spa Code and various publications authored by the American Concrete Institute. As a result, assigning and distributing responsibility is a hotly contested issue among those involved in the design and construction of these pools, as well as insurance professionals adjusting these claims and attorneys litigating them.
At this time, some parties contend that concrete mixes should have contained more fly ash. Other parties are determining whether the issue originates from specific quarries in the Lower Colorado River area, which may explain why the cases are mostly isolated to the Central Texas region, and whether the issue could be avoided at the material supplier level. Discovery in the In re Easy Mix MDL is ongoing and no case has been certified as ready for trial. Thus, there have been no findings or judgments to date assigning and/or apportioning liability among the parties involved.
Who Is in the (MDL) Mix?
As a result of the conflicting interests among the parties involved in the MDL, the formation of several different subcommittees was necessary to sufficiently represent all interests. In the majority of the cases currently pending in the MDL, the concrete mixer was sued first by homeowners and/or pool builders, and the concrete mixer later joined material suppliers and the concrete installer, to the extent not already joined by the pool builder, as third- or fourth-party defendants. In other cases, the homeowners and/or pool builders sued the subcontractors and material suppliers at the same time. In both situations, the material suppliers, in turn, filed counterclaims against the concrete mixer for defense and indemnity. Other subcontractors, including rebar and plaster installers, have also been named as defendants or third-party defendants and similarly have been counterclaimed against for defense and indemnity.
Because of these varying litigation postures, concrete mixers are averse to the material suppliers, while pool builders and subcontractors, who are averse to each other, are averse to both concrete mixers and the material suppliers. Consequently, the strategic interests of concrete mixers, material suppliers, pool builders, and subcontractors are not aligned. Thus, four different defendant subcommittees were formed representing pool builder and general contractor defendants, subcontractor defendants, material supplier defendants, and the concrete mixer defendants. Lastly, homeowner and non-homeowner plaintiff subcommittees were formed to adequately represent the differing interests of plaintiffs litigating these concrete cancer claims.
Concrete Cancer in the Courtroom
The parties involved in these concrete cancer claims—including pool owners, construction industry professionals, insurance professionals, attorneys, and experts—continue to develop different and, often, competing strategies for evaluating and resolving these construction-defect claims. It will be informative to see if and how those strategies ultimately play out at trial, especially after the first MDL bellwether case proceeds to trial later in 2026 or in early 2027.
About the author
Mari Bryn Dowdy is a shareholder at Segal McCambridge. mdowdy@smsm.com