Whose opinion counts?

The testimony of expert witnesses often is the most critical evidence used to determine the outcome of cases alleging construction defects or failure. There are questions and issues only an individual qualified as an expert witness can address in construction and professional liability cases, such as:

• What was the cause of the construction defect or roof system failure?
• Was a roof system failure caused by inadequate design, defective workmanship, poor quality materials or damage to the roof by other trades?
• Is what is alleged as a roof problem not a defect but a problem caused by moisture from a concrete deck, condensation or porous walls, for example?

Only certain witnesses are allowed to present expert testimony, and their opinion testimonies must be reliable. Only an individual with expertise in the field is allowed to present opinion testimony regarding subjects that are beyond the common knowledge of lay persons.

Unlike expert witnesses, the admissible testimony of a witness who is not qualified as an expert generally is limited to factual testimony based on personal observations and knowledge of the events and transactions that are the subject of the litigation. Per the Federal Rules of Evidence that govern cases in federal courts and are followed in most state courts, a lay witness can offer an opinion only in limited circumstances where the opinion is rationally based on the witness's perception and is helpful to understanding the witness's testimony or determining a fact in dispute. If the witness's testimony is based on scientific, technical or other specialized knowledge, the witness must be qualified as an expert in the field and his or her testimony must satisfy the standards required of experts for reliability.

Construction cases often become battles of experts. The expert witness who is better prepared, more familiar with the facts of the case, more experienced and knowledgeable in the field, and better able to explain his or her reasoning is more likely to be the more persuasive witness whose testimony could determine the outcome of a case decided on technical grounds. If an expert is found not qualified or the expert's testimony is found inadmissible, the party intending to have the expert testify on their behalf is likely to lose the case perhaps through entry of summary judgement.

The Daubert case

Because expert testimony is critical to the outcome of a case and can be subject to abuse if unqualified individuals present expert testimony or provide testimony that is not well-founded, there are principles and rules governing the admission of expert testimony.

In 1993, the U.S. Supreme Court issued its landmark decision in Daubert v. Merrell Dow Pharmaceuticals Inc. that provides the fundamental legal principles governing the admissibility of expert testimony. The Supreme Court's decision in the Daubert case was the basis for adoption of Rule 702 of the Federal Rules of Evidence, which governs the use of expert testimony in federal courts and generally is followed by state courts.

In the Daubert case, the Supreme Court made it clear the trial court judge is to act as the "gatekeeper" to determine the admissibility of expert testimony. This is consistent with the role trial court judges play when deciding preliminary questions concerning whether a witness is qualified, a privilege exists or evidence is admissible.

In its Daubert decision, the Supreme Court emphasized it is the responsibility of the trial court judge to screen the evidence and determine the admissibility of proffered expert testimony. In addition to ruling on the qualifications of an individual offered as an expert witness, the trial court judge must ensure the expert's testimony rests on a reliable foundation and is relevant to the issues being decided at trial.

When performing the gatekeeper responsibility, the trial court judge is required to determine two things: First, is the expert witness qualified to present expert testimony about the issues at hand? Second, is the proffered testimony of the expert reliable and relevant?

The Daubert case evaluated scientific evidence, specifically whether a mother's prenatal ingestion of a prescription drug, Bendectin, caused her two children's serious birth defects. In its decision, the Supreme Court identified several factors that should be considered by the trial court judge to determine whether proferred expert testimony was reliable, including whether the expert's theory or technique could be or had been tested or was subject to peer review and publication; the error rate associated with the scientific technique used by the expert; standards controlling the technique's operation; and whether there was widespread acceptance of the expert's technique.

The factors cited by the Supreme Court in the Daubert decision were geared toward determining the reliability of scientific evidence. Following the Daubert decision, it was unknown whether the Supreme Court's ruling applied only to cases involving scientific evidence or had broader applications.

The Supreme Court answered this question in its 1999 decision in Kumho Tire Co. v. Carmichael. In this case, the Supreme Court said Daubert's holding that the trial court judge was given the duty of serving as the gatekeeper applied not only to testimony based on scientific knowledge but also to the testimony of engineers and other experts who were not scientists and whose testimony was based on technical and other specialized knowledge. The Supreme Court said the factors listed by the court in the Daubert case should be applied with flexibility. When assessing the reliability of an engineering expert's testimony, the trial court may consider the Daubert factors to the extent relevant, which will depend on the nature of the issue, an expert's particular expertise and the subject of the testimony.

Federal Rule of Evidence 702

The Daubert and Kumho Tire decisions are the basis of Rule 702 of the Federal Rules of Evidence governing testimony by experts. Most states have adopted rules similar to Federal Rule of Evidence 702. A witness who intends to present expert testimony must be qualified as an expert by knowledge, skill, experience, training or education. If the individual is qualified as an expert, the rule states the witness may testify in the form of an opinion if:

• The expert's scientific, technical or other specialized knowledge will help to explain the evidence or determine a fact
• The testimony is based on sufficient facts or data
• The testimony is the product of reliable principles and methods
• The expert has reliably applied the principles and methods to the facts of the case

By providing testimony about subjects that are not within the usual province of laymen, expert testimony is appropriate when it may help the jury or factfinder reach a decision regarding an issue that is beyond common knowledge.

Following the decisions rendered in the Daubert and Kumho Tire cases, trial court judges, fulfilling their gatekeeper function, have the responsibility to see expert testimony is reliable. An expert is permitted wide latitude to offer opinions, but the opinions must be well-founded.

An expert witness must be prepared to demonstrate his or her methodology and conclusions are well-founded in the discipline in which the expert is testifying. The expert's opinion ideally should be based on the expert's personal experience and recognized practices within the industry. The expert's testimony should include references to authorities that support his or her testimony. Widespread acceptance of a theory or principle is an important factor when allowing expert testimony. Expert testimony should be supported by criteria by which the court can evaluate its reliability.

Pre-trial hearing

The purpose of a judge serving as a gatekeeper is to exclude unreliable expert testimony. Challenges to experts typically are considered by the trial court judge before trial. The party who wants to challenge another party's expert testimony files a motion in limine, often referred to as a Daubert motion, seeking to disallow or limit the testimony of another party's expert. Through pre-trial discovery and mandatory disclosure of the identity of experts and the substance of their intended testimonies, the parties are familiar with the expected testimonies of expert witnesses. In civil litigation, the parties must disclose the basis of their expert's opinions with sufficient specificity to allow opposing parties to prepare a defense and avoid ambush at trial.

After the filing of a motion in limine, a hearing is scheduled. Based on the motion and testimony presented at the hearing, the judge considers the reliability and potential helpfulness of the expert's testimony and issues a ruling that governs the introduction of expert testimony at trial. The purpose of the pre-trial motion in limine and the Daubert hearing is to prevent the jury from hearing evidence that would be inadmissible at trial.

In ruling on the admissibility of an expert's testimony, a trial court judge is not to decide which party's expert is more credible. As often quoted in judicial decisions: " … Vigorous cross-examination, presentation of contrary evidence and careful instruction on the burden of proof are the traditional and appropriate means of attaching shaky but admissible evidence."

The trial court judge rules on admissibility of evidence but not the weight to be given to a witness's testimony or the witness's credibility, which are left to the jury. Once a witness is qualified to testify as an expert, it is up to the trier of fact to determine the expert's credibility and how much weight to give the expert's testimony when deciding the outcome of the case.

Unlike other witnesses, expert witnesses are not required to possess firsthand knowledge of the facts of the case or have made personal observations. In a construction case, an expert witness does not have to have made a site visit or have personal knowledge of the case's underlying facts. Conducting a thorough on-site investigation at the construction site and making personal observations certainly make the expert's testimony more credible and compelling but are not requirements. An expert witness may base an opinion either on personal knowledge or facts or data the expert has been made aware of by listening to the testimonies of other witnesses, studying reports, reviewing deposition transcripts, reading documents, viewing photographs or other means. The expert's opinion must be consistent with the facts of the case; otherwise, the expert's opinion may be found to be irrelevant.

The party who intends to call an individual to testify as an expert witness has the burden to establish by a preponderance of the evidence that the individual has the qualifications to present expert testimony and that his or her testimony satisfies the standards for admission of expert testimony.

An expert's testimony that is speculative or conclusory without providing a foundation is not likely to get past the gatekeeper. Similarly, expert testimony based solely on the expert saying it is so will not be admissible. Expert testimony based on obsolete reference materials such as out-of-date R. S. Means Construction Cost Data is unreliable and not acceptable. Experts are not authorized to present legal opinions.

A trial court's ruling on the admissibility of expert testimony is not likely to be reversed on appeal unless the trial court judge has made a clear error. In the case General Electric Company v. Jointer, the Supreme Court ruled in 1997 that a trial court's ruling on the admissibility of evidence from a proffered expert witness would only be reversed on appeal if the appellant could show the trial court judge's ruling was an abuse of discretion. In other words, the appellate court will not substitute its independent judgment regarding whether the expert testimony was admissible but instead will determine whether the trial court judge abused his or her discretion when ruling on the admissibility of expert testimony.

Establishing standard of care

Expert testimony ordinarily must be presented to establish the standard of care that is to be expected of a defendant who is accused of acting negligently. When an expert is going to offer an opinion regarding whether a defendant satisfied the standard of care required of that profession or trade, the expert must be qualified in that particular field.

As stated by the Georgia courts: "[T]he law imposes upon building contractors and others performing skilled services the obligation to exercise a reasonable degree of care, skill, and ability, which is generally taken and considered to be such a degree of care and skill as, under similar conditions and like surrounding circumstances, is ordinarily employed by others of the same profession."

Get a good expert

Expert testimony is critical in construction cases. You want to be sure to retain a well-qualified expert who can provide accurate, well-founded and persuasive testimony on your behalf and can handle vigorous cross-examination by the opposing party's counsel.

Also, be prepared to challenge another party's expert if the expert is not qualified to present expert testimony regarding the subject in dispute in the case or attempts to present testimony that is not reliable or based on the facts in evidence in the case.

Stephen M. Phillips is a senior partner with Atlanta-based law firm Hendrick Phillips Salzman & Siegel P.C.