Recent Court Order Excluding Expert Testimony Offers Useful Reminders and Lessons for Construction Litigants

Amandeep S. Kahlon | Bradley Arant Boult Cummings

Construction claims often feature supporting testimony from design and/or scheduling experts, and exclusion of that testimony either by disqualification of the expert or a finding that the testimony is otherwise inadmissible can prove fatal to your claim or defense. States may vary in their requirements for admissibility of expert evidence, but most states follow some variant of Federal Rule of Evidence 702. Rule 702 provides that an expert may testify in the form of an opinion or otherwise if:

(a) The expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) The testimony is based on sufficient facts or data;
(c) The testimony is the product of reliable principles and methods; and
(d) The expert has reliably applied the principles and methods to the facts of the case.

The recent district court order in American Contractors Indemnity Co. v. Reflectech, Inc. granting a motion to strike an expert demonstrates the importance of satisfying the requirements for admission of expert evidence under Rule 702 and other like statutes. In that case, a surety sought indemnity for payment on bonds issued to a subcontractor that defaulted on a roofing subcontract. The surety investigated the general contractor’s claim for default against the subcontractor, settled with the general contractor for approximately $400,000, and then filed suit against the subcontractor for breach of their general indemnity agreement.

The defendant subcontractor proffered an expert to opine on the adequacy of the surety’s investigation and the appropriateness of payment of the general contractor’s bond claims. In moving to strike this expert, the surety argued (1) the expert should be disqualified due to lack of experience, and (2) the expert testimony was inadmissible because it was not based on sufficient facts or data as required under Rule 702(b). The court focused on the second prong of the surety’s argument in granting the motion to strike.  The court found that the expert’s opinion was not based on sufficient facts or data because of several admissions from the expert during his deposition. Specifically, the surety persuaded the court with the following facts derived from the expert’s deposition testimony:

  • The expert admitted he never visited the project site and interviewed only one individual, the owner of the subcontractor, before drafting his expert report;
  • The expert admitted he never reviewed the surety’s records regarding the general contractor’s claim and did not know what information the surety’s investigation uncovered because that information was never provided to him;
  • The expert testified that the surety’s records would have been helpful in forming his expert opinion (the subcontractor was unable to provide any explanation for failure to provide this material to the expert when it had been produced by the surety); and
  • The expert stated that he did not review the settlement portion of the general indemnity agreement, which he had opined was unconscionable.

The facts relied upon by the court highlight the importance of selecting and managing experts in construction disputes. When selecting an expert, a party should be mindful of the expert’s prior testifying experience and his or her approach to investigating a claim or subject area for which an opinion is required. A party should also ensure its expert receives and reviews all the documents and information necessary to formulate his or her opinion. To be successful, this process requires an active dialogue with the expert throughout the course of a matter.  For example, document productions from other parties and deposition testimony from witnesses will uncover additional information an expert may need to support his or her opinions. Consistent engagement with an expert will help avoid outcomes such as that encountered by the roofing subcontractor in this case and should help a party better develop its claims or defenses as a matter proceeds.

Cross-Examining the Expert Witness in a PL Case Part II: What Are the Relevant Facts & Data?

Rosario M. Vignali | Wilson Elser | November 14, 2017

In the first part of this series, we examined how effective deposition questioning about an expert’s education, training and experience can ultimately call into serious question the expert’s qualifications to serve as an expert witness at trial and survive a subsequent Daubert motion. We examined how some experts, despite their seemingly extensive and impressive credentials, may actually have no experience in the relevant field or may be exaggerating the depth of their past work experience. This may ultimately lead to the Court finding that the expert is offering opinions in an area about which they know nothing.

In this second part of the series, we’ll examine the “facts and data” that the Plaintiff’s expert, under Rule 702, is supposed to collect and examine as the basis for an opinion. Experience indicates that careful questioning of the expert’s work in gathering facts and data related to the underlying accident and/or the allegedly defective product often shows that, in reality, the expert’s opinions rest on a shaky foundation or a selective version of the relevant facts that can, and often will, collapse with just a few nudges given at the expert’s deposition.

I am often amazed to learn how little work actually went into the expert’s finding that the underlying product is defective. Targeting the extent and depth of the expert’s process of fact gathering or, more accurately, the lack thereof should therefore be an important focus during the expert’s deposition. For example, most experts, even the least prepared, will have read the deposition transcript of the Plaintiff and the Defendant’s lead witness. Upon further questioning, however, we often learn that the expert has read and reviewed little else prior to developing the opinions and writing the Rule 26 report. Many experts don’t bother to view the video of Plaintiff’s deposition where, in some cases, a demonstration of how the accident happened was given. It is not uncommon to learn during the expert’s deposition that the expert did not read the transcripts or written statements from any eyewitnesses to the accident, nor has the expert attempted to independently interview any eyewitness, co-worker or even the Plaintiff’s employer.

Most expert reports will contain a list of the documents read or reviewed by the expert prior to developing the opinions and writing the report. Rather than concentrating on what the expert reviewed, we suggest concentrating on those documents that the expert did not review. Chances are that the expert has probably read the most important product-related documents produced by the Defendant, such as the product’s Operator’s Manual and an assembly drawing or two. Targeted questioning at the deposition often shows, however, that the expert may not have bothered to “drill down” to the second level of product-related documents (i.e., other than the Operator’s Manual and/or the design drawings) generated by the manufacturer during discovery. If the expert has no knowledge of the information contained in these more informative documents that may be favorable to the product’s design, the expert has by definition ignored important “facts and data” – albeit inconvenient information that the expert would probably prefer to ignore – that would call into question the expert’s work-up and overall credibility.

We also find at depositions that the so-called expert did not bother to visit the actual accident scene, nor has the expert obtained and read the police report or the relevant medical records. Some experts don’t even bother to conduct an inspection of the product involved in the accident. Even if the product is not available because it was lost or destroyed during or after the accident, there is a real likelihood that the expert did not bother to obtain a new exemplar in order to determine what the product looked like when it was new and before it was altered or abused by the Plaintiff or others.

Facing a difficult case with an uncertain outcome, and perhaps as a legacy of state court practice, Plaintiffs’ attorneys often keep their expert on a shoestring budget – forcing the expert to develop opinions “on the cheap.”  The first thing sacrificed by these economic constraints is the kind of “sufficient facts and data” required under the Daubert standard before an opinion can be properly rendered in a courtroom. Under the federal court’s “gatekeeping” role to keep out “junk science” and ipse dixit opinions, the Defendant’s exploration of the basis for the expert’s opinions need not be similarly constrained by the Plaintiff’s decision to cut corners. Showing that the “Emperor has no clothes” through targeted questioning at the expert’s deposition can devastate the expert’s credibility and the legitimacy of the opinions being given. Even if the expert survives a later Daubert motion, the expert’s ability to persuade the jury will likely be seriously impacted.

In our next installment in this three-part series, we’ll look at questions that target the expert’s methodology.