Merlin Taylor | Advise & Consult, Inc. | May 3, 2018
The credibility of an expert witness’ testimony is largely based on their ability to have an objective opinion.
- “Objective–not influenced by personal feelings, interpretations, or prejudice; based on facts, unbiased: an objective opinion.”
In representing a client with a construction defect claim, I am often faced with an opposing party who submits an “expert report” that is nothing more than an estimate provided by a contractor. I believe contractors are more than happy to provide an estimate for requested services. However, the contractor’s estimate is later presented by a party involved in a dispute, as proof of a defect or evidence supporting their claims in a lawsuit. It is my experience and firm belief that when a contractor, subcontractor/tradesperson is asked to provide a bid for work, that is precisely what will be delivered. Little thought is given by the person preparing the estimate as to why they are providing the quote. I believe a qualified contractor’s estimate to perform services is not objective at all. Indeed, what could be more subjective?
If I were to ask a remodeling contractor or kitchen cabinet company to come to my home and provide a bid for a new kitchen, that company/business person is more than happy to accommodate my request. The fact that my kitchen is only 5 years old and in very good working order, is of little interest to the representative providing a bid. If I want to replace my kitchen, regardless of what reasons I may have, I will receive a proposal for the new remodeling work and kitchen cabinets, etc. This is merely an example of course; however, the estimate, this type of document can now be evidence of fault and could be deemed an expert report or evidence supporting a claim and submitted as proof of an issue in dispute.
Another example is a contractor who submits a quote to remove and replace the exterior stucco cladding on a residence. The stucco contractor is glad to provide a homeowner or a party involved in a lawsuit with a detailed quote to remove and replace exterior stucco cladding. This estimate is later submitted by the party to show proof that the stucco is defective, and the amount listed in the quote is “how much it will cost to repair the damages”. The quote provided by the contractor is just that, an estimate for services. When the parties use the quote as an objective expert’s evaluation of a possible building defect or substantiate a problem, is when it becomes a misrepresentation of facts. The stucco contractor is not concerned with problems which may or may not exist with the exterior finish, existing stucco. The stucco contractor is selling an exterior cladding product and providing an estimate per the party’s request. The stucco professional was not asked to render an expert opinion about the integrity of the existing stucco. How objective is a businessperson who provides a building construction services estimate? That said their estimate is entered into evidence to substantiate a defect claim. This estimate for replacement of the stucco reinforces a false claim, to instill credibility in their dispute about the integrity of the original stucco work.
These are examples only, but in nearly all building products you can imagine this ploy is used to give credence to a claim and substantiate the damages or loss by one of the parties in a dispute. I believe some parties involved in lawsuits are not interested in an expert’s objective and honest opinion. They seem to be blinded by the issues and become obsessed with proving their point at all costs.
Water intrusion, building envelope issues, comprise a large part of the building defects we deal with daily; involving homes and multi-family buildings. If moisture is located and destructive testing shows damage, making the corrections to repair and replace the defective building systems is important to resolve. What we see too often is isolated damage which is detected in a location, then documented and later the isolated defect is extrapolated to include all areas of the building. A defect, an isolated leak around a window let’s say, which has caused damage is then extrapolated to include all windows and like openings in a building without documentation. The amount of the claim is based once again on estimates from contractors to remove and replace all portions of the building’s finish materials because they were asked to provide an estimate.
An estimate to perform work is not evidence, nor is it a tool for supporting facts or claims concerning construction defects or deficiencies in a dispute.