Written by: Juan J. Miranda
Construction litigation often requires litigants to retain expert witnesses to defend against and/or support claims arising from the design and construction of a project. Whether you are design professional defending against professional liability claims or a general contractor defending against claims of nonconforming work, it is incumbent upon the litigants and their attorneys to ensure the methodology used by their experts is sound and capable of being tested by others in their field of expertise. Methodological shortcuts taken by experts can result in severe consequences at trial.
For example, courts will, and have, excluded liability and damages experts if they fail to use the best evidence available to them when analyzing a particular issue or if they choose a methodology that is inferior to other methods available to the expert. See, e.g., Lacroix v. State Farm , No. 09-0609, 2010 U.S. Dist. LEXIS 60675 (E.D. La. June 2, 2010) (finding an expert’s methodology unreliable because he failed to review the best evidence showing the actual repair costs on a project and relied on an estimating software list to develop the estimate); Tardo v. State Farm Fire & Casualty Co., No. 08-1165, 2009 U.S. Dist. LEXIS 78800, 2009 WL 1804766, at *4 (E.D. La., June 22, 2009) (finding that the damages expert’s methodology for deriving his estimates were not “based upon sufficient facts or data” and highlighted that the expert ignored who did the repairs, what kind of materials were used to make the repairs, how much the repairs cost); K-Con Bldg. Sys., Inc. v. U.S., 131 Fed. Cl. 275 (2017) (rejecting one forensic scheduling analysis over another after finding that the expert’s methodology did not actually reflect the reality of what occurred on a construction project).
These are just a few examples of questionable methodologies, and practitioners should be aware of how their experts arrive at their conclusions and check for superior methodologies prior to issuing expert reports. Being proactive and taking the extra steps to check the expert’s methodology will ultimately make the expert’s opinions less susceptible to Daubert challenges and help avoid the severe consequence of having your expert excluded before trial.