Daubert Challenges in Construction Claims Defending and Asserting - - PowerPoint PPT Presentation

Daubert Challenges in Construction Claims

Defending and Asserting Challenges to Construction Expert Witness Evidence

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THURSDAY, MAY 9, 2013

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Tracy L. Steedman, Partner, Niles Barton & Wilmer, Baltimore Rebecca Weisenberger, Attorney, Dorsey & Whitney, Minneapolis

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May 9, 2013 Tracy L. Steedman Niles, Barton & Wilmer LLP tlsteedman@nilesbarton.com Rebecca Weisenberger Dorsey & Whitney LLP weisenberger.rebecca@dorsey.com

Daubert Challenges in Construction Claims: Defending and Asserting Challenges to

Construction Expert Witness Evidence

5

Expert Challenges In Construction Cases

• During This Presentation We Will Address:

– The evolution of expert challenges – The application of Daubert to construction disputes – Qualifying your expert to survive a Daubert challenge – Practice pointers for Daubert challenges

6

Expert Challenges In Construction Cases

• During This Presentation We Will Address:

– The court’s gatekeeping function

• Expert testimony should assist, not trick or confuse, the

trier-of-fact

7

The Daubert Challenge: Significant Law

• Daubert v. Merrell Dow Pharm., Inc.

– Scientific Knowledge

• Federal Rule of Evidence 702
• Kumho Tire v. Carmichael

– Daubert’s Application to Non-Scientific, Technical and Other Specialists’ Knowledge

8

The Daubert Challenge

• Frye v. United States (lie detector evidence found

inadmissible)

– Set the standard for the admissibility of novel scientific evidence – Frye or General Acceptance Standard

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The Daubert Challenge

• Daubert v. Merrell Dow Pharm., Inc. (reversing

summary judgment excluding expert testimony)

– Frye superseded by the Federal Rules of Evidence

• Nothing in the text of Rule 702 established the necessity
• f “general acceptance”

– Scientific methodology must be relevant, reliable, helpful and fit

10

The Daubert Challenge

• Reliability Factors established in Daubert

– Theory can be (and has been) tested? – Theory subjected to peer review and publication? – Known or potential rate of error? – Existence and maintenance of standards applicable to theory? – “General acceptance”?

11

Kumho Tire Extends Daubert Factors

• Kumho Tire Co., Ltd. v. Carmichael

– Daubert analysis applies not only to scientific experts, but also engineering and all other expert testimony – Daubert factors are not a definitive checklist

• r test, but a group of factors that may be

considered when determining expert testimony admissibility

12

2000 Amendment to Rule 702: Response to Daubert and Kumho Tire

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, 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 witness has applied the principles and methods reliably to the facts of the case.

13

2011 Amendment to Rule 702: Stylistic Only

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.

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Daubert’s Application to Construction Cases

• Trilogy of restrictions on expert testimony:

– Qualification – Reliability – Fit (otherwise known as relevance)

15

Daubert’s Application to Construction Cases: Qualification

• The Construction Expert Must Be Qualified

– Look at knowledge, skill, experience, training

• r education

– No exact recipe – Testimony should stay within scope of expertise – Assess how well the qualifications match the exact subject matter at issue

16

Daubert’s Application to Construction Cases: Qualification

Representative Cases

• Freesen, Inc. v. Boart Longyear Co.

– Lack of experience in one specific area went to weight

• f testimony, not admissibility
• U.S. ex rel. M.L. Young Construction Corp. v. Austin Co.

– Without more, fact that the expert had not authored technical or other articles did not disqualify him from

• ffering testimony
• Boro Const., Inc. v. Lenape Regional High School Dist. Bd.
• f Educ.

– Qualified based on experience alone, did not need college degree

17

Daubert’s Application to Construction Cases: Reliability

• The Construction Related Testimony Must Be

Reliable

– For non-scientific testimony, court will be flexible in determining relevant factors to consider

• Employ in the courtroom the same level of intellectual

rigor that characterizes the practice of an expert in the relevant field

– A challenge should address the expert’s reasoning and methodology,

• It should not address conclusions
• Flaws in factual assumptions go to credibility, unless

clearly erroneous

18

Daubert’s Application to Construction Cases: Reliability

Representative Cases

• Quality Time, Inc. v. West Bend Mut. Ins. Co.
• Daubert applies even when testimony is based on

experience and training

• Westfield Insurance Co. v. Weis Builders, Inc.
• Observations of a defect and experience with similar

defects made testimony sufficiently reliable, even though expert did not perform certain tests

• HNTB Georgia, Inc. v. Hamilton-King
• Expert’s conclusions, based solely on his own

assertions, were unsupported and unreliable

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Daubert’s Application to Construction Cases: Fit

• The Construction Related Testimony Must Be

Relevant – Fit

• Connection to both the facts and law at issue

– Testimony must be helpful to the trier-of-fact – Testimony should not include conclusion of law

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Daubert’s Application to Construction Cases: Fit

• Representative Cases

– Steffy v. The Home Depot Inc.

• Appraiser used the wrong zoning when assessing value of

property, making testimony irrelevant

– A.A. Profiles, Inc. v. City of Fort Lauderdale

• Court excluded testimony related to a different test for

measuring damages than the test being used in the case

– D&D Associates, Inc. v. Board of Education of North Plainfield

• Report did not “fit” because of disconnect between the
• pinions and the allegations in the case

21

Daubert’s Application to Construction Cases: Scheduling

• Testimony Related to Scheduling

– Is the methodology used widely accepted in the industry? – Is the methodology properly applied to the facts? – Was the reasonableness of the original schedule analyzed? – Is the analysis broken into the greatest level of detail possible?

22

Daubert’s Application to Construction Cases: Scheduling

Representative Cases – Weitz Co., LLC v. MacKenzie House, LLC

• Windows methodology accepted in the industry and

failure to account for certain facts goes towards weight

– RLI Insurance Co. v. Indian River School Dist.

• Expert was instructed to identify his analysis with greater

clarity and more clearly identify the critical path

– Weitz Co. v. MH Washington

• Arguments about which activities should have been

excluded from the critical path go to weight

– Burback Aquatics, Inc. v. City of Elgin, Ill.

• Testimony limited by lack of experience with construction delay

analysis

23

Daubert’s Application to Construction Cases: Defects

• Testimony Related to Construction Defects

– Large focus will be on methodology used

• May need to produce an expert to challenge

complex methodologies – If applicable industry standards exist, were they used and adhered to

• Deviations from industry standards will

typically affect credibility, not admissibility

24

Daubert’s Application to Construction Cases: Defects

• Representative Cases

– Residences at Ocean Grande, Inc. v. Allianz Global Risk U.S. Insurance Co.

• Deviations from ASTM protocols went to weight, not

admissibility

– First Assembly of God Church v. Fondren

• Testimony was found reliable when calculations were

missing, but expert was able to explain why a more complex analysis was unnecessary

25

Daubert’s Application to Construction Cases: Damages

• Testimony Related to Damages

– Large focus on reliability of methodology

• Certain methods determined to be more

reliable are preferred by courts – Did the expert use the most reliable method possible under the circumstances

26

Daubert’s Application to Construction Cases: Damages

• Representative Cases
• Interplan Architects, Inc. v. C.L. Thomas, Inc.

– Testimony by Plaintiff’s expert was unreliable as there was no link between the damages and the infringement – Testimony by Defendant’s expert was unreliable as he failed to describe the data upon which he relied

• Safeco Ins. Co. of America v. S&T Bank

– Whether it was Total Cost Method, or a Modified Total Cost Method, it was sufficiently reliable

27

Qualifying Your Expert to Survive a Daubert Challenge

• Is the Construction Expert Qualified?

– Specialized experience with the main issue being contested

• Generalized knowledge and impressive

credentials not likely to survive this challenge

– Once qualified, the court continues its gatekeeping role to ensure that the expert’s testimony does not exceed the scope of its expertise

28

Qualifying Your Expert to Survive a Daubert Challenge

• Is the Construction Related Testimony Reliable?

– With non-scientific testimony, the reliability analysis is more abstract

• The expert may need greater qualifications

when opinions are based on knowledge/experience

• The expert should be prepared to fully explain

how knowledge/experience led to the expert’s

• pinions

29

Qualifying Your Expert to Survive a Daubert Challenge

• Is the Construction Related Testimony Relevant?

– Expert testimony will continue to become more common-place

• Remember to analyze whether the testimony is truly

helpful

– Relevance may change as legal theories change and as the court makes preliminary rulings

• Question whether certain testimony remains

relevant

30

Qualifying Your Expert to Survive a Daubert Challenge

• Daubert’s Application to Scheduling

– Expert’s qualifications will need to change with the industry

• Pay attention to new certifications
• Assess the expert’s experience with new

technologies

31

Qualifying Your Expert to Survive a Daubert Challenge

• Daubert’s Application to Construction Defects

– Scientific Testimony

• Challenging methodology/standards

– Experience and Knowledge Testimony

• Challenging qualifications

32

Qualifying Your Expert to Survive a Daubert Challenge

• Daubert’s Application to Damages

– Prior to Kuhmo Tire, financial experts were

• ften permitted to testify based on

qualifications alone – Now must be prepared to overcome Daubert challenges

• Industry accepted methods
• Sufficiently identifying methods used
• Demonstrating requisite qualifications

33

Practice Pointers

• Possess specialized knowledge?
• Identify methodology used?
• Widely-accepted methodology?
• Utilize applicable standards?
• Cite to any treatise or other authority?
• Assumptions supported by the record?
• Helpful?

34

Practice Pointers

• Plan carefully to ensure that:

– Your expert will be qualified for its particular scope of testimony – There is enough time within the scheduling order to support your expert or oppose your opponent’s – Court has advance notice that you intend to challenge the expert well in advance of trial

• Last minute Daubert challenges are frowned upon by the

court

35

Practice Pointers

• Practitioner Concern:

– Filing early gives other side opportunity to cure the problem

• Solved by asking court for scheduling

conference to impose a discovery cut-off and deadline for filing challenges after the cut-off but in advance of trial

36

Practice Pointers: Preparing for the Hearing

• Supporting your Expert

– Know the exact methodology used to reach expert’s

• pinion

– Demonstrate to the judge the test used, its origin, use in the field, and provide back up and how it relates to real world – Expert should be prepared to testify – Avoid using scientific or other jargon – Practice presentation in front of those with no knowledge of the facts of the case

37

Practice Pointers: Preparing for the Hearing

• Challenging an Expert

– Present a clearly focused, narrow challenge in layman’s terms – If several parts are challenged, break down every

• pinion challenged

– Remember – in these types of challenges, the rules of evidence are not strictly applied

38

Additional Reference Material

• Defending and Asserting Daubert Challenges in

Construction Disputes, The Construction Lawyer, Volume 32, Number 3, Spring 2012

• Samuel v. Ford Motor Co., 96 F. Supp. 2d 491

(D. Md. 2000)

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