In the Courtroom – Cross-Examining Experts at Trial

Lee Popkin | Proskauer Rose

A good place to start when you are thinking about cross-examining an expert is to ask yourself what is the purpose of this exam? What approach do I want to take with the witness? Maybe this is an expert you actually want to engage on the substance.  You want to joust with them on the science, for example.  It could be that the focus of your exam is going to be establishing the expert’s bias.  Maybe this is an expert who you want to put in a box and really limit the applicability of her opinions; of her expertise to the issues you are going to have to decide, or you could be that you just want to get the concessions you can and get out of there.  If you take that step back to think about the bigger picture―what do I want to accomplish here? That can help you structure your exam, figure out the tone that you want to be taking with the witness and ultimately help you develop that content.

When it comes to the actual exam, what makes expert witnesses different? The first thing is obvious; they have specialized knowledge, training and experience.  That is why they are testifying as an expert witness.  Another thing is that they often have experience testifying, they have courtroom experience.  You may even be dealing with a professional expert witness.  Those folks tend to be trained to not give you the clear, clean answers that you are looking for.


“Impeach early and impeach often on non-trivial matters.”

Lee Popkin, Partner, Litigation


So what do you do? You impeach early and often because then you are using those things that set the expert apart – their confidence, their specialized knowledge.  You are using that against them. 

What do I mean by that? If we think about the psychology of impeachment, it does not feel good to give an answer to a question and then have the lawyer read to the jury a different answer than you gave the last time you were asked that question.  And that is especially true for expert witnesses―they really do not like that.  And so the results can be dramatic. 

To take an example from my recent experience, I was cross-examining an expert.  He’s a seasoned physician who has a very impressive resume and is working at an impressive institution.  At the start of my cross he was answering questions in much the same way he had on direct.  He was speaking in a loud voice, with confidence, and giving fairly lengthy answers.  Within about 10 to 15 minutes, and after I had impeached him a handful of times, there was a noticeable shift in the witness.  He started to slide down a bit in his chair, his voice got softer, and his answers got progressively shorter until I was getting those clean yes, nos that I was looking for. 

It doesn’t always work quite that well, but if you show the expert that you have impeachment for every question that you are asking―the impeachment is there and you are not afraid to use it, that can be an incredibly effective technique for controlling the witness.


When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email experts@adviseandconsult.net.

The Credibility of Your Expert (Including Your Delay Expert) Matters in Construction Disputes

David Adelstein | Florida Construction Legal Updates

Here is a quote from a judge in an order after the bench trial of a complex construction dispute between a prime contractor and subcontractor on a federal project:

The evidence received in this case demonstrates the dynamic nature of complicated construction projects. At every step, the details matter, and coordination and cooperation among the companies tasked with performing the job is essential. Thankfully, as even this case shows, most disagreements that arise as projects evolve are handled during construction, far away from a courthouse, by the professionals who know best how to achieve the ultimate goal of a completed project.

U.S. f/u/b/o McKenney’s, Inc. v. Leebcor Services, LLC, 2022 WL 3549980, *1 (E.D. Va. 2022).

This is a true statement.  A statement that parties should remember as they navigate the nuances of a complicated construction project and dispute.

The facts of the case, however, would hardly be construed as a win for either party. Something else for parties to consider as they navigate the nuances of a complicated construction project and dispute.

While there were many components in dispute, one component is worthy of discussion.  That is competing delay claims between the subcontractor and prime contractor.  The prime contractor claimed the subcontractor delayed the critical path.  The subcontractor claimed the prime contractor delayed the critical path.  Both parties had experts supporting their conflicting delay theories.  The question became which expert is more persuasive? Stated differently, which expert is the most credible? Perhaps neither as neither party recovered delay damages against the other.

The subcontractor’s delay expert did not appear to assign much blame to the subcontractor.  The court did not find this to be credible because the evidence demonstrated the subcontractor’s “own shortcomings consistently delayed its work and, in turn, Project completion.”  Leebcor Services, supra, at *25.  The court understood that the subcontractor needed to prove that but for the prime contractor, the subcontractor would not have completed its work late. Yet, evidence demonstrated there was deficient and untimely work performed by the subcontractor. “Because [subcontractor] failed to disentangle its evidence of alleged [prime contractor]-caused delay from delay caused by its own shortcomings, it failed to demonstrate that [prime contractor] was required under the Subcontract to adjust its fixed-price to account for [prime contractor]-caused delay.”  Leebcor Services, supra, at *26.

The court found the prime contractor’s delay expert, while maybe more credible in certain respects, was not more convincing.  For instance, during a period of time, the court found that while the subcontractor may have been behind schedule, “[prime contractor] has failed to demonstrate by a preponderance of evidence that delays to the Project arising during this period are attributable to [subcontractor’s] failure to timely complete [the scheduled activity].  This is because the court concludes that other activities outside of [subcontractor’s] scope of work were delaying the completion of successor activities.”  Leebcor Services, supra, at *28.  In another instance, the court found that “concurrent issues within [prime contractor’s] control also delayed them, and no evidence was offered that would permit the court to disentangle [subcontractor’s] deficiencies from those attributable to [prime contractor].”  Id. at *29.

Remember, many construction disputes require expert witnesses including delay experts.  The expert needs to carry the day on an issue.  To do this, the expert needs to be credible and persuasive.  This case demonstrates why this should not be overstated and why, even with experts, a trier of fact may still find that neither carry the day.


When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email experts@adviseandconsult.net.

Expert Can be Questioned on a Construction Standard, Even if Not Relied Upon

Garret Murai | California Construction Law Blog

It’s not uncommon in construction defect litigation for each side retain one or more experts to give their opinion as to whether something was constructed in accordance with the standard of care. This usually results in what we legal practitioners call a “battle of the experts.”

The California Code of Civil Procedure and Evidence Code include specific provisions applicable to experts including when they must be disclosed, when and how they can be deposed, and what opinions they can render. When attempting to challenge an expert it is not uncommon for one side to argue that the other side’s expert did not consider a certain fact or certain standard in reaching his or her opinion, therefore, allowing that party to argue at trial that the expert’s opinion is somehow flawed.

However, there are also certain limitations, including a limitation restricting a party from cross-examining an expert on any scientific, technical, or professional test, treatise, journal or similar publication if the witness did not rely on such publication in arriving at or forming his or her opinion. The next case, Paige v. Safeway, Inc. (2021) 74 Cal.App.5th 1108, involved a case of first impression: Namely, whether an expert who did not rely on a publication in forming his or her opinion can nevertheless be questioned on a publication (in this case an ASTM standard) because the publication is a “reliable authority.”

The Paige Case

Debra Paige slipped and fell while crossing a crosswalk to enter into a Safeway in Santa Rosa, California. At the time of the accident, the ground was wet due to rain. Ms. Paige was wearing flip-flops a carrying a small bag over her shoulders when she fell. According to Ms. Paige, “[I]t was like slipping on ice.” Ms. Paige, who was sixty at the time, suffered severe injuries as a result of the fall including a fractured femur.

Approximately two months before the accident, Safeway had contracted with Black Diamond Paving to rest ripe the parking lot including the parking stalls, text legends, and crosswalk. Black Diamond in turn subcontracted with Sawcor Pavement Striping to perform the work. Sawcor, an experienced pavement striping subcontractor in business for nearly 15 years and which had approximately 300-400 jobs under its belt, used Ennis-Flint traffic paint for job. This was the same paint Sawcor had used on other jobs including jobs for Safeway.

During Paige’s lawsuit against Safeway, she deposed Safeway’s expert, Dr. Shakir Shatnawi. Mr. Shatnawi holds a Ph.D. in civil engineering with an emphasis on transportation engineering and worked for the California Department of Transportation for 20 years where his experience encompassed parking lot design including striping. During Dr. Shatnawi’s deposition, Page’s counsel asked him whether he was aware of ASTM and whether standards promulgated by ASTM were well recognized. Dr. Shatnawi testified that he was familiar with ASTM and that standards promulgated by ASTM were generally founded on good science and accepted in the scientific community. However, Dr. Shatnawi also testified that ATM standards did not establish the default rule for safe walking surfaces and that rejected the notion that Safeway was required to follow ASTM standards applicable to safe walking surfaces.

Prior to trial, Safeway filed a motion in limine requesting that the Court preclude Ms. Paige from introducing evidence of, referring to, arguing, mentioning, or making any comment about ASTM standards. According to Safeway, Dr. Shatnawi had not relied on ASTM  standards in reaching his opinions, and by allowing Ms. Paige to question Dr. Shatnawi on ASTM standards, it would allow the jury to incorrectly conclude that Safeway was required to follow ASTM standards and that its failure to do so was a breach of the standard of care.

Following two days of oral argument on the motion, the Court granted Safeway’s motion in limine in part. In its ruling, the Court said that Ms. Paige would be allowed to ask Dr. Shatnawi if he was familiar with ASTM standards for safe walking surfaces – which recommended the use of an abrasive addition, cross-cut grooving, texturing, or other appropriate means to render a painted surface on a walkway slip resistant when wet conditions are reasonably foreseeable – but that Ms. Paige would not be allowed to reference the content of the ASTM standards.

Following trial the jury returned a defense verdict in favor of Safeway. Paige appealed. 

The Appeal

On appeal, Ms. Paige argued that the trial court committed reversible error in precluding her from questioning Dr. Shatnawi regarding the ASTM standards for safe walking surfaces under Evidence Code section 721 which provides as follows:

(a) Subject to subdivision (b), a witness testifying as an expert may be cross-examined to the same extent as any other witness and, in addition, may be fully cross-examined as to (1) his or her qualifications, (2) the subject to which his or her expert testimony relates, and (3) the matter upon which his or her opinion is based and the reasons for his or her opinion.

(b) If a witness testifying as an expert testifies in the form of an opinion, he or she may not be cross-examined in regard to the content or tenor of any scientific, technical, or professional text, treatise, journal, or similar publication unless any of the following occurs:

(1) The witness referred to, considered, or relied upon such publication in arriving at or forming his or her opinion.

(2) The publication has been admitted in evidence.

(3) The publication has been established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice.

According to Ms. Paige, the trial court granted Safeway’s motion on the ground that Dr. Shatnawi had not relied on the ASTM standard in reaching his opinion (Evid. Code §721(b)(1)), but the trial court should have permitted her to question Dr. Shatnawi on the ASTM standard because it is a “reliable authority” under Evidence Code section 721(b)(3) according to the testimony of Dr. Shatnawi who agreed during deposition that ASTM standards were “generally founded on good science and accepted in the scientific community.”

The 1st District Court of Appeal, noting that this was a case of first impression, explained that Evidence Code section 721 “sets forth three statutorily enumerated situations,” that “each situation serves as an independent basis for use of a publication on cross-examination,” and that Section 721(b)(3) “does not require the expert to have referred to, considered, or relied on the publication in forming his or her opinion in order to be cross-examined on its content”:

Section 721(b)(3) sets forth three statutorily enumerated situations in which an expert may be cross-examined about the content or tenor of a publication. Since the statutory language prefaces these three situations with the language “unless any of the following occurs,” each situation serves as an independent basis for use of a publication on cross-examination. (Italics added.) The first situation is when the expert has referred to, considered, or relied upon the publication to reach his or her opinion. (§ 721, subd. (b)(1).) The second situation is when the publication has been admitted into evidence. (§ 721, subd. (b)(2).) The third situation, at issue here, allows for an adverse expert to be cross-examined about the content or tenor of a publication when it has been “established as a reliable authority.” (§ 721(b)(3).)

The plain language of Section 721(b)(3) unambiguously allows a party to cross-examine an adverse expert about the content and tenor of a publication so long as the publication has been established as a reliable authority. For a publication to be the basis for cross-examination under Section 721(b)(3), the statute does not require the expert to have referred to, considered, or relied on the publication in forming his or her own opinion in order to be cross-examined about its content. There is no indication in Section 721(b)(3) or in section 721, subdivision (b) generally that use of a publication established to be reliable authority is subject to any of the requirements in subdivision (b)(1) or (2). Accordingly, the trial court erred in ruling such consideration or reliance by the expert was necessary.

The Court further found that “Dr. Shatnawi’s deposition testimony containing his acknowledgement that ASTM standards are founded on good science, well recognized and accepted in the scientific community, was sufficient to establish the ASTM standard to be reliable authority under Section 721(b)(3).”

However, the Court of Appeal ultimately found that the trial court’s order on Safeway’s motion in limine was harmless error pointing out, among things, that:

  1. Paige had not presented evidence that the ASTM standard established the standard of care or that Safeway’s decision not to adhere to the ASTM standard was a substantial factor in causing her fall;
  2. Paige presented no expert to testify that the crosswalk was not in fact slip resistant;
  3. There was no evidence that Paige had performed an inspection or test of the crosswalk, and had not presented evidence that, had Safeway followed the ASTM standard, she would not have fallen;
  4. Testimony by Black Diamond at trial that Ennis-Flint traffic paint was what “everybody used” and that Black Diamond completed between 200-300 striping jobs per year with that complaint without complaint; and
  5. Testimony by Sawcor at trial that it used Ennis-Flint traffic paint on approximately 10,000 jobs without issue; and
  6. Testimony by Dr. Shatnawi at trial that Ennis-Flint traffic paint was safe, reasonable and appropriate for use on parking lot crosswalks, that it was unnecessary to add sand or grit to the paint, and that the texture of the parking lot surface contributed to making it slip resistant. 

“Accordingly,’ concluded the Court of Appeal, “we conclude that it is not reasonably probable that a result more favorable to Paige would not have been reached in the absence of the trial court’s erroneous evidentiary ruling.”

Conclusion 

For legal practitioners, the take-away is that your expert can be questioned on construction standards even if they didn’t rely on those standards when forming their opinions so long as the standard are established as being “reliable authority” and this can be done either through the opposing party’s expert or even an acknowledgment by your own expert.  


When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email experts@adviseandconsult.net.

Changes to Rules Governing Expert Testimony Imminent

Michael Guggeinheim | Proskauer Rose

Last month, the Advisory Committee on Evidence of the Judicial Conference of the United States’ Committee on Rules of Practice and Procedure voted to unanimously to recommend certain amendments to Federal Rule of Evidence 702, which governs the admissibility of expert witness testimony.  This vote signals imminent changes that could significantly affect federal practitioners’ requirements to demonstrate their experts’ reliability.

Rule 702, which was further explicated by the seminal case Daubert v. Merrell Dow Pharmaceuticals, Inc., allows for an witness to testify in the form of an expert opinion if the propounding party demonstrates the following foundation:

“A witness who is qualified as an expert by knowledge, skill, experience, training, or education 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 advisory committee approved two amendments to the rule that clarify that an expert must meet all four elements of Rule 702 by a preponderance of the evidence, and require that the expert’s opinion “reflects a reliable application of the principles and methods.” The amended rule would thus read as:

“A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the proponent has demonstrated by a preponderance of the evidence that:

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’s opinion reflects a reliable application of has reliably applied the principles and methods to the facts of the case.”

The amended rule, therefore, more clearly establishes that judges should take a discerning approach to expert witness testimony, ensuring that only reliable evidence is presented to the jury as part of their deliberations.  With respect to Rule 702(d), the amendment removes the current, more nebulous “reliably applied” standard with a new guidepost that heightens the judge’s role as the gatekeeper of evidence.

The proposed changes to Rule 702 seem to be in response to growing concerns about unreliable expert testimony being admitted. While expert opinions are most often used in civil cases, concerns have also been raised about unreliable expert testimony in criminal proceedings. There has also been confusion between courts as to what standard to apply, with some courts applying the preponderance standard while others appearing to apply no discernable standard at all. Amending the rule as the Advisory Committee on Evidence has recommended could go a long way to ensuring that expert witnesses are subject to rigorous, and consistent, verification before their testimony is heard by the jury.

If these amendments are approved—which is expected later this summer, with final enactment in December 2023 pending Supreme Court approval—trial strategies and approaches could shift markedly. To ensure that expert witnesses can lay enough foundation to meet this new standard, litigation teams will need to take extra care in their selection of experts, such as by selecting witnesses who can sufficiently demonstrate expertise in the field in which they will offer an opinion. Likewise, experts will need to prepare their materials—including merits and rebuttal reports—with an eye towards maximizing their chances of meeting this standard. Finally, counsel will need to be prepared to both defend their experts, as well as challenge opposing experts, to determine the reliability of both the methods and applications of experts’ methodologies. Engaging with counsel to secure reliable expert testimony – and ensuring that the reliability of said expert testimony is properly presented to a judge—will be essential to guaranteeing effective trial representation and securing favorable outcomes in court.


When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email experts@adviseandconsult.net.

Expert Can be Questioned on a Construction Standard, Even if Not Relied Upon

Garret Murai | California Construction Law Blog

It’s not uncommon in construction defect litigation for each side retain one or more experts to give their opinion as to whether something was constructed in accordance with the standard of care. This usually results in what we legal practitioners call a “battle of the experts.”

The California Code of Civil Procedure and Evidence Code include specific provisions applicable to experts including when they must be disclosed, when and how they can be deposed, and what opinions they can render. When attempting to challenge an expert it is not uncommon for one side to argue that the other side’s expert did not consider a certain fact or certain standard in reaching his or her opinion, therefore, allowing that party to argue at trial that the expert’s opinion is somehow flawed.

However, there are also certain limitations, including a limitation restricting a party from cross-examining an expert on any scientific, technical, or professional test, treatise, journal or similar publication if the witness did not rely on such publication in arriving at or forming his or her opinion. The next case, Paige v. Safeway, Inc. (2021) 74 Cal.App.5th 1108, involved a case of first impression: Namely, whether an expert who did not rely on a publication in forming his or her opinion can nevertheless be questioned on a publication (in this case an ASTM standard) because the publication is a “reliable authority.”

The Paige Case

Debra Paige slipped and fell while crossing a crosswalk to enter into a Safeway in Santa Rosa, California. At the time of the accident, the ground was wet due to rain. Ms. Paige was wearing flip-flops a carrying a small bag over her shoulders when she fell. According to Ms. Paige, “[I]t was like slipping on ice.” Ms. Paige, who was sixty at the time, suffered severe injuries as a result of the fall including a fractured femur.

Approximately two months before the accident, Safeway had contracted with Black Diamond Paving to rest ripe the parking lot including the parking stalls, text legends, and crosswalk. Black Diamond in turn subcontracted with Sawcor Pavement Striping to perform the work. Sawcor, an experienced pavement striping subcontractor in business for nearly 15 years and which had approximately 300-400 jobs under its belt, used Ennis-Flint traffic paint for job. This was the same paint Sawcor had used on other jobs including jobs for Safeway.

During Paige’s lawsuit against Safeway, she deposed Safeway’s expert, Dr. Shakir Shatnawi. Mr. Shatnawi holds a Ph.D. in civil engineering with an emphasis on transportation engineering and worked for the California Department of Transportation for 20 years where his experience encompassed parking lot design including striping. During Dr. Shatnawi’s deposition, Page’s counsel asked him whether he was aware of ASTM and whether standards promulgated by ASTM were well recognized. Dr. Shatnawi testified that he was familiar with ASTM and that standards promulgated by ASTM were generally founded on good science and accepted in the scientific community. However, Dr. Shatnawi also testified that ATM standards did not establish the default rule for safe walking surfaces and that rejected the notion that Safeway was required to follow ASTM standards applicable to safe walking surfaces.

Prior to trial, Safeway filed a motion in limine requesting that the Court preclude Ms. Paige from introducing evidence of, referring to, arguing, mentioning, or making any comment about ASTM standards. According to Safeway, Dr. Shatnawi had not relied on ASTM  standards in reaching his opinions, and by allowing Ms. Paige to question Dr. Shatnawi on ASTM standards, it would allow the jury to incorrectly conclude that Safeway was required to follow ASTM standards and that its failure to do so was a breach of the standard of care.

Following two days of oral argument on the motion, the Court granted Safeway’s motion in limine in part. In its ruling, the Court said that Ms. Paige would be allowed to ask Dr. Shatnawi if he was familiar with ASTM standards for safe walking surfaces – which recommended the use of an abrasive addition, cross-cut grooving, texturing, or other appropriate means to render a painted surface on a walkway slip resistant when wet conditions are reasonably foreseeable – but that Ms. Paige would not be allowed to reference the content of the ASTM standards.

Following trial the jury returned a defense verdict in favor of Safeway. Paige appealed. 

The Appeal

On appeal, Ms. Paige argued that the trial court committed reversible error in precluding her from questioning Dr. Shatnawi regarding the ASTM standards for safe walking surfaces under Evidence Code section 721 which provides as follows:

(a) Subject to subdivision (b), a witness testifying as an expert may be cross-examined to the same extent as any other witness and, in addition, may be fully cross-examined as to (1) his or her qualifications, (2) the subject to which his or her expert testimony relates, and (3) the matter upon which his or her opinion is based and the reasons for his or her opinion.

(b) If a witness testifying as an expert testifies in the form of an opinion, he or she may not be cross-examined in regard to the content or tenor of any scientific, technical, or professional text, treatise, journal, or similar publication unless any of the following occurs:

(1) The witness referred to, considered, or relied upon such publication in arriving at or forming his or her opinion.

(2) The publication has been admitted in evidence.

(3) The publication has been established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice.

According to Ms. Paige, the trial court granted Safeway’s motion on the ground that Dr. Shatnawi had not relied on the ASTM standard in reaching his opinion (Evid. Code §721(b)(1)), but the trial court should have permitted her to question Dr. Shatnawi on the ASTM standard because it is a “reliable authority” under Evidence Code section 721(b)(3) according to the testimony of Dr. Shatnawi who agreed during deposition that ASTM standards were “generally founded on good science and accepted in the scientific community.”

The 1st District Court of Appeal, noting that this was a case of first impression, explained that Evidence Code section 721 “sets forth three statutorily enumerated situations,” that “each situation serves as an independent basis for use of a publication on cross-examination,” and that Section 721(b)(3) “does not require the expert to have referred to, considered, or relied on the publication in forming his or her opinion in order to be cross-examined on its content”:

Section 721(b)(3) sets forth three statutorily enumerated situations in which an expert may be cross-examined about the content or tenor of a publication. Since the statutory language prefaces these three situations with the language “unless any of the following occurs,” each situation serves as an independent basis for use of a publication on cross-examination. (Italics added.) The first situation is when the expert has referred to, considered, or relied upon the publication to reach his or her opinion. (§ 721, subd. (b)(1).) The second situation is when the publication has been admitted into evidence. (§ 721, subd. (b)(2).) The third situation, at issue here, allows for an adverse expert to be cross-examined about the content or tenor of a publication when it has been “established as a reliable authority.” (§ 721(b)(3).)

The plain language of Section 721(b)(3) unambiguously allows a party to cross-examine an adverse expert about the content and tenor of a publication so long as the publication has been established as a reliable authority. For a publication to be the basis for cross-examination under Section 721(b)(3), the statute does not require the expert to have referred to, considered, or relied on the publication in forming his or her own opinion in order to be cross-examined about its content. There is no indication in Section 721(b)(3) or in section 721, subdivision (b) generally that use of a publication established to be reliable authority is subject to any of the requirements in subdivision (b)(1) or (2). Accordingly, the trial court erred in ruling such consideration or reliance by the expert was necessary.

The Court further found that “Dr. Shatnawi’s deposition testimony containing his acknowledgement that ASTM standards are founded on good science, well recognized and accepted in the scientific community, was sufficient to establish the ASTM standard to be reliable authority under Section 721(b)(3).”

However, the Court of Appeal ultimately found that the trial court’s order on Safeway’s motion in limine was harmless error pointing out, among things, that:

  1. Paige had not presented evidence that the ASTM standard established the standard of care or that Safeway’s decision not to adhere to the ASTM standard was a substantial factor in causing her fall;
  2. Paige presented no expert to testify that the crosswalk was not in fact slip resistant;
  3. There was no evidence that Paige had performed an inspection or test of the crosswalk, and had not presented evidence that, had Safeway followed the ASTM standard, she would not have fallen;
  4. Testimony by Black Diamond at trial that Ennis-Flint traffic paint was what “everybody used” and that Black Diamond completed between 200-300 striping jobs per year with that complaint without complaint; and
  5. Testimony by Sawcor at trial that it used Ennis-Flint traffic paint on approximately 10,000 jobs without issue; and
  6. Testimony by Dr. Shatnawi at trial that Ennis-Flint traffic paint was safe, reasonable and appropriate for use on parking lot crosswalks, that it was unnecessary to add sand or grit to the paint, and that the texture of the parking lot surface contributed to making it slip resistant. 

“Accordingly,’ concluded the Court of Appeal, “we conclude that it is not reasonably probable that a result more favorable to Paige would not have been reached in the absence of the trial court’s erroneous evidentiary ruling.”

Conclusion 

For legal practitioners, the take-away is that your expert can be questioned on construction standards even if they didn’t rely on those standards when forming their opinions so long as the standard are established as being “reliable authority” and this can be done either through the opposing party’s expert or even an acknowledgment by your own expert.  


When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email experts@adviseandconsult.net.