Presenting a live 90-minute webinar with interactive Q&A Daubert Challenges in Construction Claims Defending and Asserting Challenges to Construction Expert Witness Evidence THURSDAY, MAY 9, 2013 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific Today’s faculty features: Tracy L. Steedman, Partner, Niles Barton & Wilmer , Baltimore Rebecca Weisenberger, Attorney, Dorsey & Whitney , Minneapolis The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10 .
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Daubert Challenges in Construction Claims: Defending and Asserting Challenges to Construction Expert Witness Evidence May 9, 2013 Tracy L. Steedman Niles, Barton & Wilmer LLP tlsteedman@nilesbarton.com Rebecca Weisenberger Dorsey & Whitney LLP weisenberger.rebecca@dorsey.com 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 9
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Daubert Challenge • Daubert v. Merrell Dow Pharm., Inc. (reversing summary judgment excluding expert testimony) – Frye superseded by the Federal Rules of Evidence • Nothing in the text of Rule 702 established the necessity of “general acceptance” – Scientific methodology must be relevant,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 or 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. 14
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 or 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 of 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 offering testimony • Boro Const., Inc. v. Lenape Regional High School Dist. Bd. of 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 19
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 20
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 opinions 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
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