Construction Expert Witness: A Litigation Guide


 

construction expert witness  Co-authored by Carrie M. Babiasz

Construction is an expansive field which involves numerous transactions and actors. Larger construction projects often require multiple employers, companies, and governmental entities to work together via complex contracts to execute the project. During the construction process, landowners, suppliers, construction workers (among others) are susceptible to accidents on site, contractual disputes, design defects, scheduling delays, property issues, and personal injuries which could give rise to liability disputes and possibly lead to litigation. Given the myriad of problems that can arise in construction cases, litigators increasingly seek the help of construction expert witnesses to clarify case facts.

Overview

Construction law is a relatively new specialization. Prior to the discipline becoming more formalized, construction law was simply an ambiguous term describing an area existing in between real property, contracts, and elements of finance. As law became more specialized, construction law began to define itself within its broader predecessors forming a distinctive niche within the legal environment.

Claims In Construction Law

Despite its more formal designation, construction law is still a loosely defined branch of law. In this way, for purposes of organization, it may be easiest to examine construction law by analyzing the specific claims that can be brought.

The most common claims made in construction law are those involving payment default, project deficiencies, and scheduling delays. Unfortunately, scheduling delays are prone to happen in construction projects. The delays may, and often do, lead to serious damages including, but not limited to, acceleration costs, loss of productivity costs, inefficiency costs, equipment depreciation, and overtime costs. To help mitigate the risk of scheduling delays, construction parties often include no-damages-for-delay clauses in contracts which provides a cushion for the unplanned issues that may hit a construction site. The clauses are used to prohibit claims for damages arising from delays and protect contractors from suit.

It is important to note, however, that the “damages” in no-damages-for-delay clauses are those that go beyond the direct costs. This could include defective plans or specifications. However, they are frequently the subject of controversy. Challenges to their enforcement are almost as common as the clauses themselves.

Across the country, states have decided to deal with such clauses, and their enforceability, in a variety of ways. Some states relying on common law, others enacting statutes, and a few states, such as West Virginia, ignoring them entirely. Several states, including Oregon and California, have enacted legislation barring “no damages” clauses for private construction contracts. Washington held the clauses void and unenforceable for private and public contracts. “No damages” clauses can complicate the litigation process. Consequently, attorneys should be aware of their state’s position on the enforceability of contracts with such clauses in them.

Scheduling Delays

When scheduling delays occur, assuming there isn’t a no-damages-for-delay clause in the contract, it is essential to assess the parties or issues responsible for the delay. This assessment requires an analysis of complex concepts such as float, critical path, and causation. The complexities of such concepts lead to the near requirement of implementing the use of forensic scheduling expert witnesses. They can help to explain how those items lead to who was responsible for what, as well as the subsequent damages by a particular party.

It is important to note that there is a distinction between a delay claim and a disruption, or cumulative impact, claim.[1] It was held in Bell Co. that “although the two claim types often arise together in the same project, a ‘delay’ claim captures the time and cost of not being able to work, while a ‘disruption’ claim captures the cost of working less efficiently than planned.” As noted, the two claims often arise together. However, they do present some differences, especially in delay litigation.

Scheduling delays may arise under government contracts as well. In such circumstances, the Suspension of Work clause will typically govern contractor claims over government-caused delays. To recover contract delays for a government delay, the contractor must show an unreasonable delay by the government, that the government is the sole cause of the delay, and the amount of damages the contractor is entitled.[2] A contractor must also prove, regardless of government action or inaction, that they were not responsible for any concurrent delay that would have equally delayed the contract.

Defects

Defects in a construction project can include defective materials, strict products liability, breach of warranty, technical deficiencies, and negligence. These can lead to claims involving personal injury and Workman’s Compensation. Workers on a job site are often those most likely to be claimants in construction cases involving injury. Workman’s Compensation, therefore, is common. However, if negligence is involved, workers may be able to sue for personal injury, as well. Non-workers may also bring personal injury claims to litigation.

In order to prove negligence, the injured party must show that there was a duty owed, that there was a breach to that duty, that whomever owed the duty caused the incident at hand, and that there were actual damages (as with most cases involving negligence). In cases involving negligence, especially negligence in construction cases, a construction expert witness can be crucial. Some courts even rule them as necessary in order to prove a prima facie case. With Miller v. Los Angeles, the court held that because an ‘ordinary man’ could not determine whether or not a building was built in accordance with legal standards, issues of a building’s negligent location and subsequent consequences stemming from that negligence required testimony by a construction expert witness.[3]

When using expert testimony, attorneys may come up against issues regarding the rules of evidence, which are varied among the different jurisdictions. Most states model their evidentiary standards after Federal Rules of Evidence 702. It stipulates that an expert witness, qualifying by knowledge, skill, experience, training, or education, may testify their opinion if the testimony is based on sufficient facts, the testimony is the product of reliable principles and methods, and those principles and methods were reliably applied by the expert witness in the particular facts of the case.[4]

Forty-two states roughly pattern their own rules of evidence according to 702 and follow the general definitions and limitations for experts. Taking it a step further, nine states have explicitly and fully adopted the holdings of the U.S. Supreme Court in its consideration of FRE 702.

Rule 702 requires that the expert’s testimony “assist the trier of fact” in resolving the case. When dealing with scientific evidence or opinion, the courts have established factors when determining the admissibility of scientific testimony or evidence. In a landmark decision, Daubert v. Dow Pharmaceutical, it was held that the requirement to assist the trier of fact would be satisfied only if the opinion had “a valid scientific connection to the pertinent inquiry.”[5] An expert witness’s opinion may fail to be helpful to the fact finder in several ways. For instance, if the opinion strays from the particular facts of the case, or is not sufficiently within the expert’s particular practice or specialized field of knowledge.

The Daubert standard has come to replace the Frye standard, the dominant test throughout the country.[6] Currently, only ten states continue to adhere to the Frye standard including California, Illinois, Kansas, Maryland, Minnesota, New Jersey, New York, Pennsylvania, and Washington. Florida will discontinue its adherence to Frye as of July 1, 2013. The majority of states have adopted the Daubert standard. Although several states refuse to explicitly adopt either Frye or Daubert, they choose to apply similar standards that acknowledge Daubert.

The Daubert and Kumho Tire decisions play an important role in introducing expert testimony in construction cases.[7] This is true even in arbitration proceedings, considering the modern push for such proceedings to include exclusion motions for expert testimony. Generally, the factors laid out in Daubert are used to assess whether certain testimony should be excluded. However, the factors can also be implemented to judge the general persuasiveness of admissible testimony.

As mentioned previously, Daubert looks to acceptance in the industry, specifically the scientific community, when analyzing the admissibility of expert testimony. Kumho Tire extended Daubert’s scientific focus to all specialized knowledge. For the purposes of a construction expert witness, this is critical, as there are accepted methods in the construction industry for different practices. Hence, it’s important that the testimony of a construction expert witness be based on one of the accepted techniques in order for it to be deemed admissible and reliable. A general principle is that, for testimony under Daubert, the more accepted the methodology in the relevant community, the more likely testimony will be allowed.

Types Of Expert Witnesses Used In Construction Cases

Scheduling Expert Witnesses

Scheduling expert witnesses can analyze scheduling delays that may have occurred in construction claims. In most cases, scheduling experts have extensive backgrounds in field of construction. There are at present no official qualifications or standards for scheduling experts, and those testifying in delay cases can come from a variety of construction-related occupations, including architects and engineers.

Due to the complexity of scheduling analysis, in order for an expert to be considered reliable, they should demonstrate experience in construction and scheduling. However, in many delay cases, an opposing expert is usually present, so cross-examination can be quite rigorous. Therefore, in order for testimony by a scheduling expert to be deemed admissible and reliable, an expert needs to prove that the methods they chose to assess the delay are widely accepted and credible, and why the approach used by the opposing expert was not as reliable or credible.

Construction Expert Witness

In many construction cases, experts can come from a variety of fields depending on the particular facts of the case. Standard of care, for instance, is a critical factor in defect cases, including those involving personal injury and negligence claims.

In one defect case, an engineer was found to be a reliable expert witness when testifying as to generally-accepted engineering safety standards and to establish the standard of care in a personal injury claim where it alleged that failure to provide a handrail caused the plaintiff to fall.[8] Other professionals that commonly serve as a construction expert witness in construction defect cases include architects. Similarly, they attest to standards of care in the industry and assessment of the duty, breach, and causation factors of negligence claims. Construction professionals used as a construction expert witness must have extensive experience in their particular field and have the appropriate education and certification background.

Financial Expert Witness

Another part of negligence and personal injury claims is damages. CPA’s, economists, and financial expert witnesses may assess what damages resulted from alleged problems in defect claims. CPA’s may also testify as to delays, inefficiency, and termination. Complicated calculations of liquidated damages, audit review, and costs need to be performed. Financial experts are needed for assessment and explanation to a judge or jury. To become a CPA, one must take thirty credit hours, usually in accounting, beyond the completion of a four-year bachelor’s program. As with most experts, experience is key.

Medical Expert Witness

Injuries can occur at construction sites, and when such claims arise medical expert witnesses may be needed to assess injuries, damage, and causation. For example, a physician may be able to shed light on the extent of a worker’s on-site injury and whether such an injury would commonly result from the alleged incident or defect. Consequently, a medical expert witness would also be able to testify as to the length of recovery typically needed for the injury, which may come into play for Worker’s Compensation cases and personal injury claims.


[1] Bell BCI Co. v. U.S., 81 Fed. Cl. 617, 636 (2008).

[2] Blinderman Constr. Co., Inc. v. United States, 695 F.2d 552, 559 (Fed.Cir.1982).

[3] Miller v. Los Angeles County Flood Control Dist., 8 Cal. 3d 689, 106 Cal. Rptr. 1, 505 P.2d 193 (1973).

[4] F.R.E. 702

[5] William Daubert, et ux., etc., et al., Petitioners v. Merrell Dow Pharmaceuticals, Inc. 509 U.S. 579.

[6] Frye v. United States. 293 F. 1013 ( D.C.. Cir 1923).

[7] Kumho Tire Co. V. Carmichael. 526 U.S. 137 (1999).

[8] Zebzda v. Hudson St., LLC, 72 A.D.3d 679, 897 N.Y.S.2d 727 (N.Y. App. Div. 2010).

About The Author

Stephen Gomez, J.D., is a legal compliance and professional risk specialist who manages employment lawsuits for large corporate entities including, banks, fortune 500 companies, hospitals, and universities.