Introducing John Link – Construction Expert Witness

Advise & Consult, Inc. | August 2, 2018

John Link Headshot 002
John Link

We are excited to announce the addition of John Link to our expert witness family here at Advise & Consult, Inc. He covers the Michigan area and has expertise in construction, remodeling and restoration services. John is also very experienced as a business consultant, public speaker and educator, and system and program development.

John has been a licensed builder, remodeler, and restoration contractor for over 30 years. His former businesses performed work thorough out the US with over 200 employees. His company was one of the only ISO certified restoration companies in the United States, which allowed direct contracts with large corporations. He also developed an industry 1st in the contents restoration services by standardizing the contents remediation process for several insurance providers and third party administrators. Throughout his career he has consulted with numerous companies to implement scalable growth and sales strategies. He has served as an expert witness for over 25 years. He has produced many CE classes, speaks publically, and provides industry training.  

Since the start of his business career, one of John’s main focuses has been how to effectively run and scale a business. With this focus, John has put together a comprehensive business administrative package. It provides start to finish protocol with over 300 critical documents covering the 4 main areas of business: personnel, project management, accounting, and file management. It also contains marketing sales strategies including educational classes that are industry specific. The package has been designed and implement to be highly adaptable to various businesses. This kind of organization and detailed business focus is what help his company become one of the only ISO Certified restoration companies in America.

If you are in Michigan and in need of his services – call 231.598.6166 or email johnlink@adviseandconsult.net

Growing Pains: The Story Behind Florida’s Daubert Arc – Part 1

Alan J. Lazarus | Drinkler Biddle & Reath | July 1, 2019

The steady but sometimes slow adoption by the states of the Daubert standard for expert admissibility, and the accompanying recession of the Frye standard, is something of a coming of age for the national jurisprudence. Frye has become outmoded and anachronistic in an era of dizzying technological and scientific advancement ─ and riddled with exceptions. Daubert’s focus on reliability and fit incorporates the necessary flexibility, rigor, and judicial engagement to warily allow the expert wheat while turning away the chaff. The transition has played a pivotal role in fine-tuning the tort system in search of well-founded fact-finding and more rational adjudications.

But as we all know, a maturation process can be painful, halting, and fraught with challenges. That aptly describes the Florida experience in moving from Frye to Daubert.

The legal community took notice recently when the Florida Supreme Court at last, but rather abruptly, adopted the Daubert standard for admissibility of expert testimony. But many may be unaware of the full back story, a tale replete with starts and stops, victories and setbacks, and what might pass for intrigue in a litigator’s office.

Firmly Frye

Florida was historically a dedicated Frye state. Soon after the U.S. Supreme Court issued Daubert, rejecting the Frye rule in favor of a reliability and relevance test and imposing a rigorous gatekeeping obligation, the Florida Supreme Court first reacted to the decision in Flanagan v. State, 625 So.2d 827, 829 n.2 (Fla. 1993). The Court’s entire discussion (shorn of citations) was this:

We are mindful that the United States Supreme Court recently construed Rule 702 of the Federal Rules of Evidence as superseding the Frye test. However, Florida continues to adhere to the Frye test for the admissibility of scientific opinions.

More thoughtful discussions and reaffirmations were later issued in Brim v. State, 695 So.2d 268 (Fla. 1997), Hadden v. State, 690 So.2d 573 (Fla. 1997) and Castillo v. E.I. DuPont de Nemours & Co., 864 So.2d 1264 (Fla. 2003). In Castillo, the Supreme Court interpreted the first prong of Daubert, scientific reliability (described as “scientific validity”), to be the equivalent of the Florida Frye test, but rejected the second prong, “fit,” as improperly evaluating the expert’s ultimate conclusion rather than the underlying science. That view is wrong, but it at least suggested that perhaps the distance between reliability gatekeeping and the Frye standard as recognized in Florida was not great.

Marsh – The Exception Swallows the Rule

The gulf widened considerably in 2007 when the Supreme Court decided Marsh v. Valyou, 977 So.2d 543 (Fla. 2007). As discussed below, Marsh prescribed a standard for expert testimony that could not be more dissimilar to Daubert. Whereas Daubert sets reliability as the sine qua non of admissibility and requires the trial judge to rigorously assess the reliability (and “fit”/relevance) of the testimony before admitting it, the Florida Supreme Court essentially immunized almost all scientific expert testimony in Florida courts from any meaningful scrutiny, as a practical matter. The Court did this by drastically enlarging the “pure opinion” exception to the Frye standard.

The theory behind the “pure opinion” exception is that where the expert’s opinion is based solely on expertise, rather than impenetrable “science,” the jury is capable of evaluating the testimony as it would that of any fact witness and protective gatekeeping is not necessary. Accordingly, Frye does not apply. Neither does any other special test of reliability.

In Marsh, the plaintiff’s expert testified that a series of car accidents had caused plaintiff to develop fibromyalgia. The trial court excluded the testimony under Frye as not based on generally accepted scientific principles – the scientific community had not reached any consensus as to whether trauma was capable of inducing fibromyalgia. The court of appeal affirmed, rejecting arguments that the testimony was pure opinion excepted from Frye and that Frye was satisfied. Meanwhile, another District Court of Appeal reached a contrary result in a similar case. The Supreme Court resolved the conflict, finding the testimony was (1) pure opinion not subject to Frye and (2) admissible under Frye in any event.

The pure opinion holding was marred by a prominent internal inconsistency. The Court held that medical causation opinions based on a physician’s review of the patient’s medical history, clinical physical examinations, their own experience, published research, and differential diagnosis is pure opinion testimony not subject to Frye. But in support, the Court cited court of appeal cases emphasizing that the exception applies only when the opinion “is based solely on the expert’s training and experience.”

The holding also eliminated any safeguards against junk science in the vast majority of cases. Even accepting the pure opinion exception’s premise – that an expert relying solely on background, training, and experience can be adequately “analyzed by the jury as it analyzes any other personal opinion or factual testimony by a witness,” and therefore need not be Frye-tested for general acceptance reliability – once the expert claims support in scientific research some form of reliability filter becomes necessary. Thus, without acknowledgment, Marsh substantially expanded the population of cases that would escape any reliability screening, of any type, by broadening “pure opinion” to include testimony relying in part on scientific research.

As to satisfying Frye, the Court decided, in dicta, that the existence of “numerous published articles and studies [that] recognize an association between trauma and fibromyalgia” sufficiently demonstrated the reliability of the underlying principle that trauma can cause fibromyalgia. The Court observed that “a lack of studies conclusively demonstrating a causal link”… “and calls for further research do not preclude admission”; nor does a lack of supporting epidemiology. But the Court ignored the fundamental difference between association and causation and the fundamental nature of a general causation analysis. None of the studies cited – presumably the research relied on by the expert to establish general causation – was a controlled study demonstrating a causal link. The Court’s dicta therefore diluted and distorted the “general acceptance” standard for those rare cases where Fryestill applies.

Two of the justices in the four-justice majority specially concurred, adding that they believed Frye had been superseded by Florida’s adoption of the Evidence Code and effectively replaced by a pure relevance standard. The three dissenters argued that the absence of general acceptance of the general causation premise – that trauma can cause fibromyalgia – precluded both sidestepping and satisfying Frye. Because general causation is a prerequisite for specific causation and a differential diagnosis analysis, a specific causation opinion built upon a disputed general causation premise cannot be deemed a pure opinion. Scientific research inevitably plays a role, and its reliability needs to be assessed. And the lack of consensus on general causation leaves Frye’s general acceptance requirement unsatisfied.

Neither plaintiffs’ attorneys nor the experts they hire are generally stupid, and it soon became apparent that after Marsh they could assure admissibility simply by having the expert raise his/her right hand and say they were applying their expertise, even if their analysis also relied on scientific research.

Growing Pains: The Story Behind Florida’s Daubert Arc – Part 2

Alan J. Lazarus | Drinker Biddle & Reath LLP | July 8, 2019

The Aftermath of Marsh

When the Marsh case was decided in 2007 its broad interpretation of the “pure opinion exception” and narrow vision of the role of Frye took Florida expert evidence admissibility law well out of the mainstream. Florida law was starkly at odds with the reliability concerns addressed by Daubert and its progeny and counterparts.

A 2010 court of appeal case highlighted the dramatic difference between Florida and federal admissibility standards. Hood v. Matrixx Initiatives, Inc., 50 So.3d 1166 (Fla. 4th DCA 2010). [Disclosure: The author was defense counsel in Hood.] Plaintiffs sued the maker of OTC cold remedy Zicam nasal gel claiming it caused loss of sense of smell. They also sued the local supermarket chain, Publix, solely to defeat diversity – a fact that will become significant shortly. The trial court granted a Frye motion to exclude plaintiffs’ causation expert, Dr. Jafek, and then granted summary judgment.

Dr. Jafek had previously been excluded by federal courts in Alabama (2), California, Kentucky, Oregon, and Texas, all finding the science behind his causation opinions unreliable under Daubert. Despite this track record, and even though one of the factors under Frye is whether the science underlying the expert’s opinion has been accepted in the courts, the court of appeal reluctantly reversed. “While we recognize the federal courts’ uniform refusal to admit Dr. Jafek’s testimony, we are compelled to find that Dr. Jafek’s opinion is admissible in Florida under Marsh.”

Even beyond the diametrically different results regarding admissibility of the same expert and same opinions, two aspects of Hood shined a bright light on the weaknesses in Florida’s admissibility threshold.

  • First, as only Dr. Jafek’s general causation opinion had been challenged, and he both necessarily and actually relied heavily on extrapolation from scientific studies to conclude that the product can cause smell loss, Hood confirmed the extraordinary reach of the pure opinion exception after The court of appeal expressly rejected the defense argument that the exception was inapplicable because of the prominent role of scientific literature in Dr. Jafek’s analysis.
  • Second, in authorizing experts to rely on scientific research and still escape reliability scrutiny under the exception, the court confirmed that the exception had become entirely untethered from its rationale. Recall the premise of the pure opinion exception, however questionable, was that jurors were well equipped to evaluate an opinion based solely on the experts’ training and experience; they were in no danger of being spellbound by scientific methods, data and principles difficult for laymen to independently understand, process, and evaluate. Credibility assessment was the jury’s wheelhouse. The reconfigured pure opinion exception allowed the experts to have their proverbial cake (avoid reliability screening) and consume it (clothe their opinion in the aura of science), too.

After Marsh and Hood, the difference between federal and state courtrooms in Florida was striking. Federal judges were not just authorized but obligated to police all scientific expert testimony and require that it rest on a reliable foundation in methods, data, and reasoning. Their state counterparts were prohibited from scrutinizing the reliability of scientific opinion testimony “in the vast majority of cases.” Frye was not applicable at all if the experts relied on training and experience, even if they also relied on any scientific research. Only opinions based on new or novel scientific tests or methods were subject to Frye, and the experts’ reasoning and conclusions were entirely immune from Frye-testing. And while federal judges would consistently exclude true “pure opinion” (i.e., an opinion actually based solely on the experts’ training and experience) as inadmissible ipse dixit, state judges were bound to automatically admit it, with no further reliability inquiry. As Hood explained, Marsh had opted for “a ‘battle-of-the-experts’ approach to the admissibility of expert testimony, designed to prevent trial judges from usurping ‘the jury’s role in evaluating the credibility of experts and choosing between legitimate but conflicting scientific views.’”

The Legislature Strikes Back

How did the Florida Legislature and business community respond to this state of affairs? They mobilized. Concerns over the lack of any meaningful mechanisms to reject junk science, the consequential potential for jackpot justice in tort cases, and the ultimate encouragement of unnecessary local joinders and forum-shopping fueled increasingly urgent calls for legislative reform.

Legislation was introduced in 2008 and 2011 to amend Florida’s version of rule 702 to adopt a Daubert standard and reject the existing Frye regime, but fell short. Another concerted effort was mounted in 2013, and in April 2013 I was contacted by a tort reform organization promoting the amendment. It seemed an important swing vote on the Senate Rules Committee was on the fence. Though he was concerned with the prospect of forum-shopping, he had seen no concrete evidence that it was actually occurring. The ask was for any evidence that plaintiffs’ lawyers were targeting Florida and/or joining local defendants solely to stay in state court.

Recall that in Hood the Florida grocery chain Publix had been joined to defeat diversity. After remand, the case went to trial in February 2013, the jury returned a defense verdict, and I was defending the verdict on appeal. Having the trial record handy, I was able to provide the Legislature with the transcript of the plaintiffs’ opening statement. Counsel had essentially told the jurors that Publix was in the case for strategic reasons, simply because it had sold the product, and had not done anything blameworthy. The legislation wound up passing, and Florida had a Daubert standard effective July 2013. Florida Statutes § 90.702.

Timing is Everything: How Early Retention of Expert Consultants Can Make or Break Construction Claims

Whitney Judson | International Law Office | July 15, 2019

Resolution of construction disputes oftentimes involves the unravelling of complex issues, and requires the analyses and opinions of expert witnesses in various industries related to the project. For these reasons, retaining an expert consultant as soon as litigation is imminent can truly be a difference-maker in a party’s pursuit or defense of construction litigation claims.

Early retention

Early retention of a non-testifying expert can be invaluable to a potential party to a construction dispute. Instead of offering testimony in any hearings connected to the dispute, an expert consultant will essentially join the party’s litigation team to assist in preparing and shaping the party’s claims and defenses. As soon as a party anticipates litigation—whether it is after receiving a letter from an attorney threatening litigation, or immediately following the rejection of a claim—a consulting expert can begin reviewing relevant documents and forming conclusions regarding causation, fault, and damages related to the dispute. As facts and issues continue to develop on the project, the consulting expert will be on hand to analyze and form opinions in real time. This is incredibly advantageous to a potential party to a construction dispute because the consultant has the unique ability and knowledge to assist attorneys very early on in formulating pointed written discovery requests and deposition questions and topics that will most effectively support the party’s claims and defenses.

Mediation

If the construction dispute advances to mediation, a party with a consulting expert already on hand is again at an advantage because the consultant can assist the legal team in presenting strong evidence at mediation that most accurately quantifies and assesses damages, and that most effectively attacks the claims of the opposing party. This added layer of expertise, accuracy, and credibility at such an early stage in the dispute may very well motivate the opposing party to actively pursue settlement, which saves all parties involved time and expense. If the construction dispute moves into the litigation process, a non-testifying expert consultant can assist the legal team in selecting an expert witness who will testify at hearings on behalf on the party. The consultant, as an expert in the field and as someone who has been analyzing the unique issues and disputes on the project since the moment litigation was anticipated, is well-positioned to assist the attorneys in reviewing the work and vetting the credentials of potential testifying expert witnesses. Once an expert witness is chosen, the legal team may have the consultant use his or her expertise and long-term knowledge of the project to inspect the expert witness’s analyses, conclusions, and opinions for accuracy and reliability.

Qualified privilege

Many jurisdictions across the U.S. offer a qualified privilege for the thoughts and opinions of non-testifying expert consultants retained specifically in anticipation of litigation, unless the party seeking discovery can demonstrate “extraordinary circumstances” that make it impractical for the seeking party to discover facts or opinions on the same subject by other means.(1) If all requirements of the qualified privilege are met, a potential party to a possible construction dispute will likely not be required to produce the studies, analyses, opinions, or even the identity of its non-testifying expert consultant.(2)Preserving this qualified privilege is highly important because the consultant’s findings and opinions may possibly prove to be unfavorable to the legal positions taken by the party that hired the consultant. If the privilege does not apply, a party may be required to produce all of the consultant’s opinions and analyses to the opposing party—even those that may possibly prejudice the hiring party’s claims.(3)

Comment

To best utilize the leverage and advantages that a non-testifying consultant can offer, a party should retain legal counsel who is keenly aware of the role timing plays in expert retention. While it is certainly advantageous to hire a non-testifying expert at the earliest moment possible in the construction litigation process, the expert’s opinions likely will not be privileged if the expert’s retention precedes the date of anticipated litigation.(4) Jurisdictions across the country may differ on which facts and circumstances trigger a dispute’s “anticipation of litigation” date, so it is important to consult legal counsel on the specifics of your jurisdiction before hiring a consultant. Generally, however, the anticipated litigation date is the date where the parties to the dispute become aware that litigation may be imminent. It is not necessary that a lawsuit be filed for parties to reasonably anticipate litigation. However, anticipation of litigation can occur when an actual or a potential claim on the project presents itself, so that the hiring of a consultant may be fairly regarded as the party’s anticipation of, and preparation for, possible litigation.(5) Speaking with legal counsel experienced in construction litigation matters, including the hiring of expert witnesses and consultants, is helpful to any party who wishes to successfully prove claims or assert defenses in a construction dispute.

Endnotes

(1) See Higher One, Inc. v. TouchNet Information Systems, Inc., 298 F.R.D. 82, 87 (W.D.N.Y. 2014); Sandy Point Farms, Inc. v. Sandy Point Village, LLC, 200 A.3d 659, 663 (2019); In re Detention of West, 171 Wash. 2d 383, 404 (2011); Ex parte Mobile Gas Service Corp., 123 So. 3d 499, 515 (2013); Juedeman v. Montana Deaconess Medical Center, 223 Mont. 311 (1986).

(2) Liverperson, Inc. v. 24/7 Customer, Inc., No. 14 Civ 1559 (S.D.N.Y. July 29, 2015) (protecting a non-testifying expert’s identity from discovery unless exceptional circumstances are shown).

(3) In re Asbestos Products Liability Litigation (No. VI), 256 F.R.D. 151, 156 (E.D. Penn. February 25, 2009) (“Where there is no evidence of the scope and nature of the expert’s services as pertaining to the litigation or work done unrelated to litigation, an individual will likely not be considered a non-testifying litigation consultant and the consulting expert privilege will not attach”).

(4) Id (“The party resisting discovery…has the burden of demonstrating that the expert was retained in anticipation of litigation”).

(5) Id.

California Court of Appeal Makes Short Work of Trial Court Decision Preventing Party From Supplementing its Experts

Garret Murai | California Construction Law Blog | June 30, 2019

Years ago I recommended to a client that we hire a construction defect expert in a case. The client, a thrifty fellow, responded, “But I thought you were the construction expert. Why do I need to hire another expert? A fair question and one that caught me flat footed.

Whether I’m an “expert” or not can be debated, but I explained to the client that while I was an attorney whose practice focused on construction law, I was not someone who he would want to take the stand and testify about the engineering design and seismic stability of pilings. For that, he needed an expert.

In construction litigation it’s not uncommon for parties and their attorneys to hire “experts.” There’s even special rules set forth in the California Code of Civil Procedure for disclosing, supplementing and deposing experts, which basically provide as follows:

  1. Demand for Exchange of Expert Information: After the court sets a trial date in a case, any party may demand that each party exchange information concerning the experts they intend to have testify at trial;
  2.  Supplemental Experts: Upon receipt of a party’s expert information, a party may supplement their experts (if any) by serving a supplemental expert disclosure identifying experts who will express an opinion on a subject matter covered by an expert designated by an adverse party, if an expert in that subject matter has not been previously retained by that party. The idea here is to give each party a fair shot of proving their case at trial.
  3. Deposing Experts: Experts, like other witnesses, may be deposed. However, unlike party witnesses, experts are entitled to be paid for their time by the party deposing the expert. Also, unlike other witnesses, experts may asked to testify about their “opinions” as opposed to information within their personal knowledge.

In Du-All Safety, LLC v. Superior Court of Alameda County, Case No. A155119 (April 18, 2019), the Second District Court of Appeal addressed under what circumstances a party may “supplement” its experts by identifying additional experts to testify on subject matters in which the party had not previously designated an expert.

Du-All Safety, LLC v. Superior Court of Alameda County

In 2015, Mark Krein, an employee of the Tuolomne Water District, fell from a bridge at his place of employment when the floor gave way. He sustained paraplegic injuries. Mr. Krein and his wife later filed a lawsuit against several engineers, construction contractors and inspectors alleging that defects in the design and construction of the bridge led to his fall.

After the case was set for trial, defendant Du-All Safety, LLC, a safety inspection company named in the lawsuit, disclosed that it was planning on having two experts testify at trial: (1) a health a safety consultant; and (2) a structural engineer.

At the same time, the plaintiffs disclosed that they were having seven experts testify at trial:

  1. A health and safety consultant;
  2. A structural engineer;
  3. A registered nurse who would testify about Mr. Krein’s past and future injury-related needs and costs;
  4. A chemist who would testify about the effects of rust and corrosion leading to the floor giving way;
  5. A forensic economist who would testify about Mr. Krein’s past and future economic losses as a result of being unable to work;
  6. A physiatrist who would testify about Mr. Krein’s medical conditions; and
  7. A vocational rehabilitation consultant who would testify about Mr. Krein’s functional limitations and assistance needs.

After receipt of plaintiff’s expert disclosure, Du-All served a supplemental expert disclosure identifying an additional five experts:

  1. An engineer who would testify about rust;
  2. A life care planner who would testify about Mr. Krein’s past and future injury-related needs and costs;
  3. An economist who would testify about Mr. Krein’s past and future economic losses as a result of being unable to work;
  4. A physiatrist who would testify about Mr. Krein’s medical conditions; and
  5. A vocational rehabilitation consultant who would testify about Mr. Krein’s functional limitations and assistance needs.

In response, plaintiff’s filed a motion to strike Du-All’s supplemental experts, arguing that Du-All should have disclosed these experts in its original disclosure, and complaining that Du-All’s supplemental disclosure was an act of “gamesmanship.” The trial court agreed, basically finding that Du-All “knew or should have known” that plaintiff would call experts in the five subject areas, and by failing to designate experts in those areas in its original disclosure, Du-All had waived its right to name its additional experts in its supplemental disclosure.

For those of you who have practiced for an appreciable amount of time, if this seems like an odd result, it was. It also seemed odd to Du-All’s counsel, who filed petition for peremptory writ to challenge the decision.

The Court of Appeal Decision

On Appeal, the Second District Court of Appeal noted that, while “[w]e generally a trial court’s ruling on a motion to exclude expert testimony  for abuse of discretion,” “when the exclusion of expert testimony rests on a matter fo statutory interpretation, we apply de novo review.” In other words, the Court would review the case on its face without deference to the decision of the trial court.

The Court of Appeal made short work of the case.

Citing Code of Civil Procedure sections 2034.210 (which provides that a party may demand a mutual and simultaneous exchange of each expert that any party “expects to offer in evidence . . . at trial”) and  2034.280 (which provides that “any party who engaged in the exchange may submit a supplemental expert witness list containing the name and address of any experts who will express an opinion on a subject to be covered by an expert designated by an adverse party to the exchange, if the party supplementing an expert witness list has not previously retained an expert to testify on that subject”), the Court of Appeal stated that “[t]here is no dispute that Du-All timely and simultaneously designated its initial experts. And also no dispute it timely designated its rebuttal experts in the same fields as plaintiffs’ initially designated experts.” And that, held the Court, “ends it”:

The trial court’s ruling here reads into the statute obligations that do not exist: that a party must not only initially disclose every expert witness it expects to call at trial, but also every expert witness it anticipates using to rebut the experts the other side might designate as an expert. This interpretation is not supported by the plain language of section 2034.210, which requires only that a party designate the experts it expects to call at trial. Indeed, if plaintiffs’ interpretation were correct, there would be no need for section 2034.280. In short, the Legislature contemplated that when a party designates an expert, it is possible the other side might want to designate a rebuttal expert on the same topic.

Conclusion

So there you have it. Code of Civil Procedure section 2034.280 means what it says. The case also underscores the idea underlying California’s Discovery Act, that discovery in California is intended to discourage trials by ambush.