English v. RKK- There is Even More to the Story

Christopher G. Hill | Construction Law Musings

Just when you thought that the litigation between W. C. English and RKK had no more to give (after all, there have been posts with wisdom from this case herehere, and here), it keeps on giving.  A relatively recent opinion from this litigation involved, among other pre-trial motions, motions by English to exclude expert witness testimony.  English sought to exclude Defendant CDM Smith, Inc’s expert testimony relating to CDM’s standard of care, the replacement of the bridge deck, English’s failure to fire CDM, and additional contributing factors regarding the spacing of the reinforcing steel.  English sought to exclude RKK’s expert opinion regarding English’s owed standard of care vis a vis VDOT.

In evaluating these motions, the Court applied the following standard:

An expert qualified “by knowledge, skill, experience, training, or education, may testify “as to scientific, technical, or other specialized knowledge if it will assist the trier of fact. However, such testimony is only admissible if (1) “the testimony is based upon sufficient facts or data,” (2) “the testimony is the product of reliable principles and methods,” and (3) “the expert has reliably applied the principles and methods to the facts of the case.” [citations excluded here but stated in the opinion]

In applying this standard, the Court partially granted the motion to exclude CDM’s expert.  The Court found that the expert’s experience was adequate and his opinion met the three-part test above as to the first of his opinions on standard of care.  However, the Court excluded the last three opinions for various reasons from lack of helpfulness to the jury to simply reading documents and providing his legal conclusion.  The Court excluded RKK’s expert from testifying because he would simply be providing his interpretation of certain specific parts of the factual record and such interpretation is generally the province of the jury.

This opinion provides a good overview of some of the expert witness issues that can arise in a commercial construction matter.  Construction professionals and their attorneys here in Virginia should review this case as well as those it cites when evaluating the usefulness of certain expert opinions in presenting their claims in litigation.  I highly recommend the opinion to your reading.

Witnesses, Add to Your ‘Truthiness’ by Showing Pictures

Dr. Ken Broda-Bahm | Holland & Hart

The idea is a merger of pop culture with academics. In pop culture, “truthiness” refers facetiously to the feeling of something being true, independent of its actual truth value (a term coined by late-night comedian, Stephen Colbert). Academics, however, have creatively adopted the term to describe the real phenomenon that occurs when message elements that are nonprobative are still able to add to the perceived truthfulness of a message. Instead of providing that full explanation whenever they talk about those elements, they simply refer to its truthiness. And what makes a message truthy? Pictures for one thing. I have previously written about the tendency for claims to be more likely to be believed when they are accompanied by a picture, even when the picture does nothing to add to the truth of the statement.

A number of studies have demonstrated the truthiness effect of images in a variety of contexts. Recent research (Derksen et al., 2020) however, applies it to witness testimony. The researchers conducted two experiments testing whether truthiness applies to judgments of witness credibility. They compared witness statements when they were, or were not, accompanied by a related but nonprobative photograph. In both studies, the witness was more credible when their testimony was accompanied by the image. In addition, they found that the photo seemed to be doing the work, because adding related but nonprobative written text had no such effect on witness credibility. The implication is that witnesses should think not just about their verbal testimony but also about whatever related imagery they might use, even if that imagery is just demonstrative and does not strictly add to the evidentiary support.

Use Images Whenever You Reasonably Can

I think attorneys and experienced witnesses will often ask themselves the question, “Do I need an image to explain this?” But the question really should be, “How can I work an image into this explanation?” The image will often help, even when it isn’t strictly or logically necessary.

If we are thinking only of the ability of an image to add material support for the testimony, then we are thinking too narrowly. Those who study the truthiness effect have come to the conclusion that the reason why it works is due to something called processing fluency: When a memory of testimony is accompanied by an additional memory of an image, then it is easier and more engaging to remember it. Because the information is processed a little differently when it is presented both visually and verbally, it feels more familiar to us when it is being recalled. Because we thought about it more when we heard it, it seems more like our own knowledge. So, egocentrically, we also think it is more likely be true.

This truthiness effect applies most naturally to an expert witness, but the fact witness walking through a complex timeline or a detailed set of documents could also benefit. Using designed demonstratives, models, flip charts, or slides, you can take dry testimony and make it visual.

Turn Your Testimony into a Show and Tell

Our own research has shown that, in a legal context, continually engaging both the verbal and visual modes of communication helps your audience understand and retain information, while also adding to the speaker’s credibility.

So one great solution is to have your expert witness, or your detailed fact witness, sit down with a graphic designer to create a slide show to complement the testimony. Based on this research, presentations using a single idea and image on a slide (rather than a series of bullet points) seem like the right way to go. Each image considered on its own might not be probative, but on the whole, the standard ought to be whether it assists the witness in testifying.

So when the time comes, it is helpful in direct examination to set up this kind of exchange with the witness:

Attorney: I understand that you prepared some slides that would assist you with this part of the testimony?

Witness: Yes, I did. I thought it would be more clear and interesting for the jury as well.

Attorney: And this will assist you in conveying your testimony?

Witness: Yes, it will.

Attorney: Your honor, with your permission, I am going to hand the witness the clicker and I will continue asking questions while the witness is able to use slides from the presentation.

Of course, it is important that this remain a question-and-answer presentation. Not only does that prevent a “narrative” objection, but it also creates more of a conversation and allows the attorney to be the “voice of the jury” in asking for clarification and in sharing what might be on their minds.

It takes some practice to do it smoothly, but when it works, the visual element definitely makes for more effective, more memorable, and more truthy testimony.

The Value of Photographic Evidence in Construction Litigation

Marie Mueller | Construction Executive

If a picture is worth a thousand words, can it be worth a thousand dollars? Ten thousand? Maybe, if it provides key evidence in a construction dispute. Litigating a construction case involves each side telling their story. Details and visual context make a story compelling. Evidence and corroboration make a story persuasive. Photographs can help on both of these fronts.  


Consider the following examples: 

  • A dispute relates to the timeliness of particular work. An employee has a memory of a load of materials arriving to the site later than it should have, but the records are incomplete or ambiguous about when it actually occurred. If the employee also took a photo of the materials, on the day they arrived, they could match up the date of the photo to their memory and build a clear timeline. 
  • A dispute relates to the presence or absence of obstructions in drilled shafts. There are no available photographs or videos of the work due to site restrictions. Presentation of this type of case may be severely limited by not being able to show photos depicting the size, shape and type of material removed from the shafts, and by the lack of video depicting the work.
  • A dispute relates to damage done during the course of construction, such as broken windows or holes in the wall. By the time litigation rolls around, the job is done and everything has been repaired. Visuals can help a factfinder to understand what actually occurred. A carefully documented photo inventory, with contemporaneous notes, will help illustrate the damage that occurred. For example, a close up could be important to show detail, but will likely also lose track of location identifiers. Make sure that the photos taken can be identified and explained. A video walk-through could be similarly effective. 
  • A workplace injury occurs on site. There is a dispute over whether adequate signage was in place to warn against a hole in the floor. Photographs immediately afterwards could confirm the presence of appropriate signage. Employee testimony about the regular and consistent practice of placing appropriate warning signs could also be bolstered by photographs of the site throughout the job showing proper signage.  
  • Five years after a project is complete, a customer complains that an incorrect sealant was utilized, causing damage. The contractor no longer has the purchase receipts to verify the product purchased. But, zooming in on photographs from the job site could confirm that the correct product was applied, avoiding potential litigation.
    In each of these examples, the presence or absence of photographs will impact each side’s presentation. 

How can a contractor build a consistent practice among employees of documenting ongoing work? Whether documenting the job is a daily or weekly occurrence, or at particular benchmarks or significant events will depend in large part on the size and scope of the project, and on specific limitations of the site. 

In a large project requiring submission of detailed daily reports, the contractor should utilize an electronic format that will include photographs each day of ongoing work and key events. The person compiling the daily report should include detailed captions regarding the photographs. Having photographs matched up to a date and description could prove to be invaluable if the contractor needs to recreate the events of a project years later in a courtroom.

Certain worksites, such as in restricted areas of government or military installations, have strict limits on photography. Photography may not be allowed at all, or the owner may own any photographs that the contractor takes. Document with photographs to the fullest extent permitted, but this situation renders contemporaneous written notes, and potentially drawings, even more crucial. 

On smaller projects with less robust daily documentation, the contractor’s crew should take pictures of the full site at least once a week (once a day is better and is made easier by the ubiquity of smartphones), or at significant milestones in the job. One person should be responsible for this on a scheduled basis, but the contractor can and should encourage everyone to document key events or issues that arise. A smartphone camera will capture date/time data. However, given potential turnover in employees and the lag time between the work and a potential dispute, the contractor should ask for these job photos to be emailed in on a regular basis with descriptions. This provides another opportunity to confirm both the timing and content of a photo, should that information be needed later.

Use people, objects or measuring tools to provide scale. It can be difficult to see if a crack in a floor or a wall is two or five feet without a frame of reference. Scale can be highly effective and persuasive. For example, in a case involving excavation of boulders, a photograph of a boulder or pile of boulders dwarfing a person next to it is more likely to stick in the memory of a factfinder than just a measurement.

Incorporating these steps will ensure that the contractor has adequate photographic documentation of a project. And, utilizing a consistent process will give the contractor enough information to identify and authenticate photographs, and will make these photographs “business records” admissible in court.

It is possible that more thorough documentation may result in some photographs that do not help the contractor’s case in litigation and may be damaging. This is a risk with any type of documentation. But, on balance, it is better to have more information available when trying to understand what went wrong with a project. 

Keep in mind that once the potential for litigation is known, destroying any project records is not permitted. As a general matter, it is advisable to retain records, including photographs, because it is impossible to predict what issues may arise a few years out from a project and what information could be crucial.

Idaho District Court Affirms Its Role as the Gatekeeper of Expert Testimony

Melissa Kenney | The Subrogation Strategist

Many subrogation claims involving fire losses rely heavily on expert testimony. Expert testimony is admissible under Federal Rule of Evidence 702 if it is both relevant and reliable. In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), whose standard has been incorporated into Federal Rule of Evidence 702, the Supreme Court instructed federal trial courts to act as a “gatekeeper” of expert testimony, giving them the power to exclude expert testimony that is not supported by sufficient evidence. In Maria Fernanda Elosu and Robert Luis Brace v. Middlefork Ranch Incorporated, Civil Case No. 1:19-cv-00267-DCN, 2021 U.S. Dist. LEXIS 14449 (D. Idaho Jan. 22, 2021) (Brace), the United States District Court for the District of Idaho exercised its gatekeeper role when it granted in part and denied in part the defendant’s motion to exclude expert testimony pursuant to Daubert and Federal Rule of Evidence 702.

Brace, involved a fire at a vacation cabin in McCall, Idaho. The cabin, owned by Maria Elosu (Elosu) and Robert Brace (Brace and collectively with Elosu, Plaintiffs) was part of a homeowner’s association called Middlefork Ranch, Incorporated (MFR). The cabin had a “wrap around” deck with a propane-fired refrigerator on the north side. On the day before the fire, Brace stained the deck using an oil-based stain. That night, Elosu smoked cigarettes on the deck. The next morning, Plaintiffs used rags to clean up excess oil from the deck and an MFR employee changed the propane on the refrigerator and relit the pilot light. At 4:00 p.m., a fire started in or around the cabin while no one was home. The fire was discovered by a group of contractors who testified that the fire was isolated to the east side of the cabin when they first arrived. Importantly, one witness testified that there was no fire and no flames around the propane-fired refrigerator. The fire destroyed the cabin and the contents within.

Plaintiffs sued MFR for negligently starting the fire and alleged that the MFR employee had knowledge of the hazard when he lit the refrigerator pilot light on the oil-stained deck. To prove its claim, Plaintiffs retained a fire investigator, Michael Koster (Koster), who inspected the scene ten months after the loss occurred, and a mechanical engineer, Richard Mumper (Mumper), who conducted various lab tests. Both experts concluded that “the fire started on the north deck as a result of excess oil vapors being ignited by the pilot light on the propane fridge.” In anticipation of trial, MFR filed a motion to exclude the opinions of Plaintiffs’ experts.

Motion to Exclude Koster’s Expert Opinion Regarding the Fire Origin and Cause

With respect to Koster, MFR argued that his conclusions should be excluded because they were speculative and not supported by evidence. The court agreed, finding that Koster failed to satisfy the standards set forth in Daubert and Federal Rule of Evidence 702 because his conclusion was mere speculation, either contrary to or unsupported by evidence in the record. Among other flaws, the trial judge focused on the fact that Koster, by his own admission, stated there was no concrete physical or testimonial evidence to support his theory that the fire started on the north side of the deck.

The court also took issue with the fact that Koster relied on an interested party’s version of the facts without conducting an independent investigation to verify the accuracy of those statements. He discounted other possible explanations for the fire, such as the spontaneous combustion of the oil rags and the careless disposal of smoking materials, based “solely off of the information that was given to [him] by [Plaintiffs].” Additionally, none of the witness interviews or transcripts supported his theory, including the testimony of the disinterested construction workers that reported observing fire on the east side of the cabin when they first arrived. Koster explained his conclusion was a “hypothesis” and that because he could not disprove it, “then there’s a high probability that it did occur.” As stated by the court: “Failing to disprove a theory that is speculative in the first place . . . would swallow the rules as applied to experts if allowed. If an expert could throw out any idea – and claim that so long as it remains unproven it’s a viable option – without oversight, the [c]ourt’s gatekeeping role is meaningless.”

Motion to Exclude Mumper’s Expert Opinion Regarding the Cause of the Fire

Plaintiffs hired Mumper to examine the remnants of the appliances including the propane refrigerator. Mumper conducted various lab tests, examined the evidence, found no abnormal electrical activity, and concluded there was no mechanical malfunction with the refrigerator that caused the fire. He goes on to opine, however, that the refrigerator pilot light caused the fire.

MFR asked the court to exclude Mumper’s opinion regarding the cause of the fire because he was not a certified fire investigator. The court noted that, because he worked for a firm that specialized in forensic fire investigations, Mumper might be qualified to offer opinions as to the origins of the fire. In the end, the court held that it would not preclude Mumper from testifying “about the tests he ran, his conclusions about those tests, and his opinion that those things did not start the fire.” On the other hand, the court ruled that Mumper could not testify as to the cause of the fire because his opinions lacked a proper foundation. The court based its decision on the fact that Mumper’s role appeared to be limited to investigating whether the refrigerator (or other appliances) malfunctioned and that he did not independently investigate other possible causes.

The primary purpose of an origin and cause investigation is to determine where the fire started and why. Expert testimony is admissible under Federal Rule of Evidence 702 if it is: (1) from a qualified source, (2) based on sufficient facts or data, and (3) will assist the trier of fact in resolving an issue that is relevant to the case. As established in Brace, it is generally not enough for a consulting expert to reach a conclusion as to the origin of a fire when his/her conclusion is contrary to or unsupported by evidence in the record.

Expert Determination Clauses: A Tailored Alternative for Construction Projects?

James Ebert and Steven Fleming | Jones Day

In Short

The Situation: Construction disputes face unique challenges in addition to those faced in other types of commercial disputes. Parties often agree to adopt independent expert determination as a means of managing these challenges. 

The Concern: Many boiler-plate independent expert determination clauses are not sufficiently tailored to the nature of construction projects or the particular circumstances of the project.

Looking Ahead: Independent expert determination can be a useful tool for the management of disputes in construction projects. In order to obtain this benefit, expert determination clauses should be carefully drafted to ensure that the prescribed process reflects the intention of the parties and is tailored to the circumstances of the particular project.

Construction disputes face additional challenges compared to other commercial disputes for various reasons, including:

  • projects involve a multitude of participants and stakeholders, including principals, contractors and subcontractors with a range of different interfaces and interests; 
  • the disputes concern complex technical matters in addition to legal issues;
  • huge volumes of documentation from many sources are generated during projects, including technical documents, correspondence and emails; and
  • participants are required to balance the legal and commercial aspects of claims and timely resolution of disputes with good project execution and the maintenance of ongoing relationships. 

To overcome these challenges in major projects, parties often agree to adopt independent expert determination for disputes that may arise. This is a process in which an independent expert is appointed to decide disputes. The types of dispute that can be determined, the relief that can be awarded and whether the expert’s decision is binding will depend on the terms of the expert determination clause. 

The popularity of the mechanism has increased due to the flexibility it can offer compared to full-scale litigation in terms of simpler procedure, expedited timing and reduced costs, as well as the perception that it is less subject to judicial intervention. However, parties should also consider whether it will be appropriate to the type of disputes anticipated. For example, a likely lack of a right to appeal and the typical absence of features of litigation such as discovery and cross-examination may be less attractive for higher-stakes disputes. 

Status of Expert Determination / Role of the Courts in Expert Determinations 

Typically, there are two stages of an expert determination process where courts may become involved: 

  1. at the outset, when a party seeks to engage the expert determination process, the other party might seek to restrain the process from proceeding by seeking a stay of the process; or
  2. after a determination has been made, an aggrieved party might seek to have a court overturn the determination. 

In both stages, Australian courts are generally reluctant to interfere and typically interpret clauses liberally so that parties are held to the agreed expert determination process. This has resulted in few instances where an expert determination has been stayed or overturned. The circumstances where this has in fact occurred are generally limited to where:

  • enforcing the expert determination procedure could result in a multiplicity of proceedings;
  • persons not party to the contract have an interest in the outcome of the determination;
  • the expert’s determination goes beyond the task that the expert was engaged to perform (e.g., they have misconceived their role or function or asked themselves the wrong question); or
  • there has been an error of law in the expert’s determination.

Judicial reluctance to interfere with expert determination was recently confirmed in The Illawarra Community Housing Trust Limited v MP Park Lane Pty Ltd [2020] NSWSC 751The plaintiff argued that an absence of express procedural rules, mechanisms and safeguards in the expert determination process rendered the clause unenforceable. The court disagreed and held that the lack of prescribed steps meant the parties had agreed to leave it to the expert to determine the process. 

Tips for Drafting

When drafting the expert determination clause, parties should carefully consider the language they are using and ensure that the clause:

  • accurately defines the scope of the disputes to be resolved by expert determination so that there can be little argument as to which disputes are subject to expert determination, and considers how to deal with any possibility of multiple and differing types of disputes;
  • clearly identifies the circumstances in which an expert determination will be binding, or will be open to further agreed review mechanisms or still permit a party to litigate the issue in court;
  • considers what expertise the expert should possess and how they will be selected;
  • provides adequate time periods and allows the expert to test the veracity of key factual matters for the nature of construction disputes. Many boilerplate commercial dispute resolution clauses include short timeframes that are unrealistic, and lack sufficient avenues for testing key facts, given the significant volume of documents and complex technical and legal matters that arise on projects; and
  • does not imitate traditional court procedure too closely. Clauses that imitate court procedure too closely, e.g., by requiring witness evidence under oath or cross-examination, risk losing the benefits provided by the flexibility of expert determination.

These aspects should be tailored to the parties’ commercial objectives, and made as clear as possible to minimise the risk of ancillary disputes over the scope or procedure for expert determination.

Two Key Takeaways

  1. Adopting contractual expert determination mechanisms may assist the parties to manage disputes in a way that better supports the project and minimises costs.
  2. Parties should avoid adopting generic boilerplate clauses and instead tailor expert determination processes to the needs of the project.