Being an Expert Witness with “Nothing” to Witness

Advise & Consult, Inc.

Fire ravaged neighborhood.

Typically, when we are hired as a construction expert witness, we are given some preliminary documents and plan on a site visit.  We are then able to “witness” many of the damaged properties (if the damage has not already been repaired) and start gathering data on what caused the damage, who the responsible parties are, and what are the estimated costs to repair the damage – in a simplified example – to find a resolution for all parties involved and move on.

There are other instances, however, where we are hired as a construction expert witness and expected to find a resolution with “nothing” to witness.  It seems increasingly more often, large wildfires, hurricanes, tornadoes, and other natural disasters are ravaging many areas, resulting in massive damage to life and property, leaving little to nothing behind over hundreds of thousands of acres.  People have suffered catastrophic losses of most if not all personal possessions including property documentation.  These clients are emotionally worn out and completely overwhelmed with starting over and finding a place of stability for their family with so many questions left unanswered.  The experience is harrowing and painful to revisit and being asked to provide documentation or answer questions about this loss causes frustration and pours salt on yet to be healed open wounds.

Law firm administration do their best to gather as much info as possible for the expert witnesses to create their report. The problem is they know what information is needed to fully support their claim for damages but do not know exactly what is needed to satisfy the insurance company and this can add months to the process – only adding to the frustration and anxiety of firm staff and property owners.  Here lies the bottleneck and the client’s frustration – being asked to relive the pain trying to gather information that is not needed.  Multiply this by the potential hundreds of clients that you have signed to represent, and this can be very frustrating and nerve wracking for staff trying to deal with hyper emotional clients and finding that they are not moving through the process in the most efficient way – causing everyone involved only an increase in stress and anxiety.

When you have a qualified expert witness firm that knows the exact information that is needed for an accurate rebuild estimate report, it streamlines the entire process from beginning to end for the clients, the law firm and/or insurance company.  This information can be gathered through a short 30-60-minute phone interview and paired with public, online sites that can provide most, if not all, of the necessary information in a good picture of the loss.  When other documentation is available from the client, those documents can be dragged and dropped by the clients straight to the expert witness.  This can all be done with a 3-5 business day turn around.  This process is efficient, accurate, and less painful, making it a win for the client, a win for the law firm and/or insurance company, and a win for the expert witness.  If your expert witness firm cannot provide this type of resolution, why are they your expert witness firm?

Sanctions Award Against Pro Se Plaintiff Upheld

Tred R. Eyerly | Insurance Law Hawaii

    The plaintiff’s failure to timely name an expert witness in his bad faith action led to sanctions being awarded against him in favor of the insurer. Black v. Fireman’s Fund Ins. Co., 2020 Cal. App. Unpub. LEXIS 2477 (Cal. Ct. App. April 23, 2020).

    After Black’s claim was denied by Fireman’s Fund, he communicated with company through letters, emails and phone conversations. Black complained that Fireman’s Fund handled his claim improperly, engaged in illegal activities and had ties to the Nazi regime in Germany. Fireman’s Fund sued Black alleging that his communications amounted to civil extortion, interference with contractual relations, interference with prospective economic advantage, and unfair business practices. Fireman’s Fund eventually dismissed its complaint without prejudice. 

    Black, however, had filed a cross-complaint in which he asserted a number of claims, including bad faith. Black designated attorney Randy Hess as an expert on insurance claims. Over the next year and a half, Fireman’s Fund repeatedly attempted to take Hess’s deposition. In March 2018, Fireman’s Fund moved to compel the deposition or exclude the testimony. The court set a July 20, 2018 deadline for the disposition to take place or else the testimony would be excluded. 

    In mid-July 2018, a new law firm entered its appearance for Black, and asked to postpone Hess’s deposition to July 20. Fireman’s Fund agreed. Then the firm asked for a 45-day extension for Black to locate and designate a new expert to replace Hess. Fireman’s Fund declined. Black moved ex parte to extend the expert discovery period. The court denied the motion. 

    Black filed another motion, seeking “a short continuance to allow a further expert designation and expert deposition.” Fireman’s Fund opposed the motion and sought $7,862.50 in sanctions. The court denied the motion, finding that Black was given 18 months’ notice of Hess’s reluctance or refusal to act as an expert. The court also awarded sanctions. 

    The Court of Appeals affirmed. In April 2017, early in the discovery period, Hess told Black that he would not act as an expert or appear at a deposition unless he was paid. A year later, Hess told Black he had withdrawn as an expert because he had not been paid. 

    Between April 2017 and July 2018, Black could have reached an agreement with Hess or found another expert. He failed to do either, forcing Fireman’s Fund to spend additional time and money to pursue and protect its discovery interests. Sanctions were warranted because in his motion, Black did not identify an additional expert witness, making the motion little more than another effort to delay the proceeding.

Great Expert Witnesses are Vital

Advise & Consult, Inc.

Construction and Property Insurance cases can be very complex and difficult for attorneys, juries, judges and those outside of the construction industry. Expert witnesses, thusly, are important in obtaining a favorable verdict. During the pre-trial preparation it can become vital for a great expert witness to inform the attorney of where their client stands and what the strengths and weaknesses of the case are.

As the case progresses through depositions and into trial, a great expert witness is vital in explaining these complex construction principles to juries and judges. Not only does the expert witness need to be knowledgeable about construction, but it is vital that they connect with the jury and judge by being personable, friendly, trustworthy and concise, but also being able to break the complex details of the case down to bite size, understandable concepts that people without construction experience can at least determine culpability.

Amy Currotto, from Merlin Law Group, says this about expert witnesses:

In establishing damages and liability under the policy, expert-witness testimony before a jury is one of the most important tools. An entire case theory can ride on the back of successful expert witness testimony, which is why policyholder lawyers should begin to consult with experts from the very beginning of a case. It cannot be overstated that winning or losing a property case often depends on the credibility and admissibility of the expert testimony. This is because without expert testimony, many property insurance cases cannot be proven.

Courts have held, when a matter is beyond the common knowledge of an average person, an expert witness opinion will be required to testify on the essential issue of causation. Policyholders who fail to present competent expert testimony on the issue often fail to prove their case which may ultimately lead to dismissal.

Richard Friedman and Patrick Malone wrote a book – Rules of the Road, A Plaintiff Lawyer’s Guide to Proving Liability states “to win cases, you must defeat complexity, confusion, and ambiguity, or they will defeat you.”

“Battle of the experts” can make the jurors skeptical, but also truly appreciate hearing the testimony of a highly educated and well-informed witness who can credibly explain to them the complicated or technical aspects of the case. Clarity is key. Being “a teacher” is vital for the expert witness to explain their findings in a way that can be commonly understood and your case can rest on this ability. Cases have been lost based on an expert’s inability to effectively communicate their opinions and methodologies to the jury. Communication can help you rise to success or it can lead to your downfall, not just for the average person, but also for an expert witness.

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.

Expert Witness: To Exclude, Or Not To Exclude, That Is The Question

Robert Quinn | Drew Eckl & Farnham

A significant factor to consider when evaluating a case, in particular for purposes of settlement, is whether the opposing party intends to utilize expert witnesses.  The inclusion or exclusion of opposing party’s expert witness in some instances may make or break a case.  The lack of an expert witness such as an economist may prohibit a plaintiff from proving future lost income which would significantly diminish the value of the case.  Or failing to disclose a orthopedist as a testifying expert may preclude an injured plaintiff from establishing causation.  Alternatively, the use of such expert witnesses by the plaintiff may significantly strengthen their case and convince you or your client that settlement is more advantageous than proceeding to trial.  The use of an expert witness becomes even more important when the other side intends to use one.  There are countless instances where juries put undue weight on the testimony of an expert merely because the other side failed to present similar testimony to rebut the expert’s opinion.  This makes the disclosure of an expert witness critical for evaluating a case for settlement. 

For many years in Georgia, an expert witness may be excluded under certain circumstances including the failure to disclose the expert witness by deadlines established in the court’s case management order.  The failure to disclose an expert witness pursuant to a court’s case management order in some instances have led to sanctions against the offending party including excluding that expert from testifying at trial.  The exclusion of the expert could certainly be devastating to your case and severely affect the settlement value.  However, a recent decision from the Georgia Supreme Court has changed the hardline rule regarding the exclusion of experts that were not timely disclosed pursuant to a court scheduling order.  Instead, the Georgia Supreme Court has now identified a list of factors that the court should consider when determining whether to exclude the late identified expert witness. 

 In Lee v. Smith, S18G1549, the Supreme Court was asked two questions, (1) whether it is proper for a trial court to exclude an expert witness solely because the witness was identified after the deadline established in the case management order, and (2) if it is improper to exclude such a witness, what factor should a trial court consider when exercising its discretion in determining whether to exclude said witness.  The case in question involved a collegiate athlete who was injured in a car accident.  Liability was not at issue and the only thing to be determined at trial were the damages sustained by the plaintiff.  Plaintiff did not disclose an expert witness in response to discovery requests.  The court had entered a case management order requiring all parties to identify all witnesses by May 12, 2017.  Plaintiff subsequently supplemented his responses to interrogatories identifying his sports agent as a damages witness.  However, he did not disclose his sports agent as an expert witness.  In June of the same year, defense counsel identified an expert witness to be called as a rebuttal witness regarding plaintiff’s newly submitted claim for future lost income. 

During the July pretrial hearing, plaintiff argued that the defendant’s rebuttal expert should be excluded because they were not timely identified pursuant to the case management order.  Defendant argued that the need for the expert witness did not become apparent until after the disclosure of plaintiff’s sports agent as a damages witness.  The court excluded the expert witness and explained that while he was sympathetic to the position of the defendant, the parties agreed to a scheduling order that required the disclosure of all expert witnesses by May and the most recent disclosure was untimely.

As a result of exclusion of defendant’s expert witness, plaintiff was able to submit unrebutted testimony regarding his claim for lost wages.  The jury eventually returned a verdict for $2 million dollars.

Defendant appealed this case to the Georgia Court of Appeals which initially affirmed the decision of the trial court.  Defendant then appealed this case to the Georgia Supreme Court.  The Georgia Supreme Court initially agreed that the trial court has broad discretion in setting scheduling deadlines and also imposing sanctions upon parties for failing to comply with those deadlines.  This had been the rule in Georgia for many years and similar sanctions excluding expert witnesses have been upheld.  However, the Georgia Supreme Court noted that the trial court’s discretion in fashioning a sanction for the party’s failure to comply with the scheduling order is not unlimited.  The court reasoned that “no harsher sanctions should be imposed than are necessary to vindicate the court’s authority.”  The Georgia Supreme Court further stated that a trial court must exercise some discretion by evaluating the specific circumstances surrounding the party’s non-compliance with an order to property determine what, if any, sanction is necessary to provide fairness to the parties and to vindicate the court’s authority.  The Georgia Supreme Court determined that because the sole reason the trial court decided to exclude the expert was he was untimely disclosed, the trial court had abused its discretion in sanctioning the defendant.     

However this did not end the court’s analysis of the matter.  The Georgia Supreme Court provided further guidance as to what a trial court should consider when determining whether or not the untimely disclosure of an expert witness warrants the sanction of excluding the witness.  The court ultimately decided that four factors should be considered when determining whether to exclude a late identified expert witness.  First, the explanation for the failure to disclose the witness, two, the importance of the testimony, three, the prejudice to the opposing party if the witness is allowed to testify and, four, whether a less harsh remedy than the exclusion of the witness will be sufficient to ameliorate the prejudice and vindicate the court’s authority.  Because these factors were not considered by the trial court when imposing the sanction of excluding the witness, the Supreme Court remanded the case for further consideration by the trial court.

What is important to understand from this new framework for determining a proper sanction for untimely disclosed expert witnesses is that the failure of a party now to meet the deadline in disclosing an expert witness does not immediately close the door for that witness’ inclusion at trial.  The parties need to be weary of the fact that the mere failure of a party to disclose an expert witness before the deadline will not immediately preclude them from using an expert witness at trial.  The parties must be cognizant of these factors going forward and understand the potential for disclosure of a previously unidentified expert witness when evaluating their case either for trial or for settlement.  Despite the fact that this new four factor test will allow some parties to include an expert witness that was previously not identified by the court’s scheduling order, we recommend taking all necessary steps to properly disclose any expert witnesses as soon as possible to ensure your ability to utilize those witnesses at trial.