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Construction Defect Litigation: Qualifying Your Potential Expert Witness

[fa icon="calendar"] Jun 29, 2015 7:00:00 AM / by Mark McGivern, CSI, Aff. M. ASCE

MarkAbout this blog series:

An expert witness can make or break your construction defect case. Not unlike many other types of litigation, construction cases (of all types) are often “expert-driven” in determining ultimate liability and damages. The ability of the expert not only to qualify, but to work and communicate clearly and objectively with counsel and client is key.

Having served as an expert witness in hundreds of cases over the past twenty years I believe that the expert witness who can distill complex processes into plain and simple language leaves an indelible impression on judges, juries, arbitrators, and other triers of fact. Qualifying your expert is the key to finding someone who will help your case - and not hurt it.

In this series of blog posts, I offer insight gained from my experience as a forensic expert, and from managing and working with other experts on cases both big and small. My experiences include working as a litigation consultant to assist carriers, counsel and corporate clients in construction defect, breach of contract, E&O, and property claims litigation in a multitude of venues throughout the United States. My hope is that those of you who retain expert witnesses will find it valuable to gain the perspective from the other side of the vetting process when seeking an expert you may not have worked with before. And even if you know the expert, these steps may provide you with insights that will increase your dialogue with the expert and maximize the relationship and outcome of any retention.

Qualifying and Vetting Experts

The process of finding the right expert is often undervalued. There are several reasons for this. It could simply be a question of time or cost constraints. In some cases, it may even be the belief that the expert  is not that important to counsel's overall strategy. I would posit that good experts, while never serving as an advocate, can serve as a critical part of the team from beginning to end.  The expert can be an educator to help counsel develop the investigation and determine what is needed - e.g. documents to list in discovery requests, witnesses to depose, or data to be developed - and assist counsel in understanding various technical issues concerning, for example, design, materials, codes, standards, practices, testing protocols, investigation, and a whole host of other issues. 

The expert’s curriculum vitae and list of previous testimony should provide the initial essential information.  Assuming the details provided on paper meet your initial criteria, the next step is the interview.  Whenever possible this should be done in person or by video; this may help you in refining your impression as to the expert’s degree of professionalism and, by extension, his or her credibility. 

The CV does not capture many of the “intangibles.” With a bit of advance preparation, interviewing your prospective experts creates a great opportunity to kick the tires and learn if he or she is the right fit for your matter, beyond just the credentials. This will markedly increase the success in your selection, working relationship and outcome. 

Objectivity

Above all else, the primary mandate for any expert is to maintain his or her objectivity in reaching opinions. Experts are not advocates. That is the job of counsel; this is a big distinction that can harm your case and the expert’s reputation, and undermine counsel before or at trial.  An expert can be qualified, brilliant and charismatic, but if he or she cannot be objective at all times during the engagement, the consequences can be disastrous for everyone (except the opposition). Framing interview questions with an eye towards getting a sense of the expert’s understanding of objectivity in serving as an expert is always informative.

Experience

You will be looking for someone with significant experience in the area of construction that your case involves. Typically, the prospective expert’s CV will provide a first level of detail concerning education, training and experience.

However, depending on the complexity of your case, it may be impossible to find an expert with experience in the exact situation you are litigating.  In such situations, you may have to settle for analogous experience instead.

There are two challenges here. The first is to consider retaining someone who has many years of broad experience in the industry, but who may lack the specific experience in the issues that the case concerns.  In many instances, broad experience will suffice, but the interview ideally will address this concern.  The caution here is always that the “analogous” experience might be deemed too far afield of the expert’s experience or training upon which the expert will rely when rendering the opinion.

The second challenge may reside in retaining an expert with very specific expertise.  For example, a materials expert with experience in the chemistry and physical properties of sealants may qualify regarding the material failure, but may be barred from or limited in testifying about the cause (pathway) of water intrusion. This can be problematic if there are multiple alleged causes (such as failed flashing of defectively installed work) wherein your retained expert may not be able to testify concerning the proximate cause by ruling in or out other causes of failure. Alternatively, an expert in building envelope design and construction may not be qualified to talk about causation relating to the material failure of the sealant unless he can rely upon another expert in the case who has the expertise and has rendered a separate opinion.  I have seen this issue in a number of cases where the retained expert and counsel “overstep” the expert’s qualifications only to have such testimony limited or challenged. This is a good discussion to have with the prospective expert early in the interview process to glean their experience in this type of situation, and to learn how they have handled such situations in past matters.

Education 

Education is of course one of the key qualifiers. This is especially relevant when seeking opinions related to design or manufacturing defects, standards of care, and contractual duties. A bachelor’s degree in engineering or architecture may be sufficient, provided that the experience in that discipline follows to further inform the basis for the opinion. Advanced degrees always augment the expert’s credibility in the minds of jurors, but this can be tricky if the advanced degree (or program certification) is not directly related to the specific subject matter at hand. 

I am aware of a case where the expert held a B.S. in Electrical Engineering obtained in the 1980s.  He also held a Professional Engineering (PE) license.  However, the expert was opining on causation where the question was of wind versus flood damage.  In that case, the expert’s credibility was challenged because his degree as an electrical engineer did not necessarily qualify him as an expert in causation. Ultimately his testimony relied upon his “experience” in construction, as opposed to his education, or his PE license.

But on-the-job-training, as well as current and relevant experience, is often just as important, and certainly complementary to education, especially when the expert graduated a long time ago. Experts who can demonstrate experience beyond the classroom, and utilize this experience, bolster not only the basis for opinions, but add to the expert’s credibility with opposing counsel, opposing experts, and the triers of fact. 

Training

The expert’s training or certification, as well as current CEU’s, publications, and public speaking engagements add further credibility to an expert's opinions, and should be a consideration as well. A review of the expert’s publications and presentations is another tool to evaluate the expert’s presentation style. Ongoing experience, training, and/or credits in codes, standards, and technologies are important issues for the expert to stay abreast of.  

Asking the expert to demonstrate his or her familiarity with the current codes, standards, and best practices at issue in your case is particularly relevant to qualifying the expert.  I was involved in a construction defect case wherein it was alleged that the contractor breached the standard of care in violating an applicable code provision. At deposition, the contractor’s expert testified that he relied upon the code and his experience. However, the expert had relied upon a prior version of the code, which had been superseded by an updated version and was therefore not applicable.  The lawyer defending the case was blindsided; he had relied upon his expert to get it right.  The mistake was made, and it had a significant impact on the contractor’s case, and impacted the reputations of both expert and counsel.  In that case, counsel would have benefitted from a thorough vetting of the expert and his knowledge of the current codes. 

Experience

Relevant experience can often be the most important factor in retaining and qualifying the expert, especially if that expert can convey that expertise in the courtroom.  During the interview you may want to ask the prospective expert to explain in some detail his specific relevant experience on the subject at hand to hear how he or she responds in clarity, detail, and approach.  Often this type of question will lead to follow-up questions to glean the process by which the expert arrived at the opinion.  Some experts will gloss over this type of question if they don’t have such relevant experience, and this too can help form your overall opinion in the vetting process.  Listen closely to the tone and tenor of your prospective expert's responses, as a jury may also be listening in the future.

Licensure

Licensure is one of the criteria in determining whether an architect or engineer will be recognized as an expert by the court.  In addition, certain states’ licensure regulations prohibit non-licensed individuals from performing any type of work where they represent themselves as engineers or architects, including expert work.  This is true if the expert’s opinions rely on him or her performing certain tasks that may be classified as the “practice” of Architect or Engineering. For example, if the testifying engineer performs structural calculations as part of his or her opinion, that expert may be subject to being duly licensed as a professional engineer to perform the work.  On the other hand, an engineer whose analysis and opinions are limited to reviewing the work of other experts in a forensic context may be allowed to testify without a license. This is an important distinction when vetting the requirements of your expert, and should be discussed with the expert as part of the interview.  These requirements vary from state to state and between state and sederal courts, and are enforced by state licensing boards.  In most cases, architects and engineers must be properly licensed in the state where they will testify.  If you have found an expert in California with the right experience and training but your case is in Nebraska, it is worthwhile to inquire as to whether it’s possible for the expert to get licensed in Nebraska in time to testify.

Conflicts

It is not uncommon for a complex suit—for example, a suit concerning a large homebuilder—to include dozens of third parties— i.e., the subcontractors who worked for the GC—and for each of these companies to have its own legal team.  If your expert testifies frequently, it is quite possible that he has testified for another party in the suit, or for the law firms representing them.  If this is the case, you will want to know in detail what they did for the other legal team and whether the work performed or opinions expressed were in any way contrary to what you’re expecting from the witness in the present case.

Previous testimony

You can be sure that opposing counsel will examine every word in every case of your expert’s previous testimony on the stand, so you will need to do the same.  Get a list of every case that the expert has testified in, including depositions.  Discover what issues were involved and what kinds of positions she took in each case.  If she issued opinions in cases similar to the case that you are trying now, you want to make sure that her opinions are consistent with the testimony you are expecting her to offer given the facts of the current case, unless the circumstances are substantially different.

Publications, lectures, media and blogging

Anything your expert has ever said or written—or ever had said or written about him—is fair game for opposing counsel.  You will need to search by every means available to find out what the expert has published, where he has lectured, what he has said, whether he has ever been sued, what has been written about him, whether he has written a blog that is controversial, and so on.  You are looking to rule out anything that could diminish his credibility, make him look insincere, or make him appear to be an “opinion for hire” who will say anything for the right price.

Disqualification

Stating the obvious, asking the expert about his or her being sanctioned, sued, or having a license revoked is fair game.  Most states maintain a website database that provides information on a registered professional’s license, standing, and citations.  The expert’s CV should indicate registration by state, making it easy to go online and review the information.

Defense v. Plaintiff opinions.

To be credible to a judge or jury, experts need to be—and need to appear to be—objective.  An expert who testifies 99 percent of the time for the plaintiff (which is not uncommon) can be made to appear biased rather than objective.  Finding an expert with more balanced testifying experience will do more to help your case.

In many construction defect cases, there is the opportunity for your expert to be more than just a witness and to become part of the strategizing team, providing valuable information.  The choice of your expert should be based on much more than just the ability to qualify, and one should consider many factors including the ability to communicate clearly and objectively with counsel and the client. Choose wisely. 

My next post: the importance of your potential expert's knowledge of the legal process.

Are you qualifying an expert witness? 

Download your copy of 9 Questions to Ask Your Prospective  Construction Defect Witness today. 

 

Disclaimer

Each retention and investigation is different. The comments and opinions expressed are general in nature and are not intended as legal or expert advice for any particular investigation. Always seek qualified counsel to advise you on your particular case or investigation before retaining an expert. The processes and considerations discussed are general in nature, and may not be applicable to every case. 

 

Topics: Root Cause Analysis, Litigation Support, Construction, Construction Defect, Architecture, Forensics, Insurance