Presenting a live 90-minute webinar with interactive Q&A Daubert Motions in Construction Litigation: Making and Defending Challenges Navigating Daubert Standards for Expert Witnesses in Design and Construction Defect Claims TUES DAY, APRIL 29, 2014 1pm East ern | 12pm Cent ral | 11am Mount ain | 10am Pacific Today’s faculty features: Thomas R. Buchanan, President, McDowell Rice Smith & Buchanan , Kansas City, Mo. José Ramón González-Magaz, Partner, Steptoe & Johnson , Washington, D.C. Brendan J. Peters, Partner, Perkins Coie , S eattle 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 Litigation By: Thomas R. Buchanan, Esq. tbuchanan@mcdowellrice.com Jose Gonzalez, Esq. jrgonzalez@steptoe.com Brendan Peters, Esq. BPeters@perkinscoie.com
Overview • Daubert trilogy and more recent Supreme Court cases • Daubert’s application in construction • Reliability and relevance issues. • Scheduling, construction defect and damages. • Daubert’s future impact on construction claims. • Lessons learned. 6
Frye v. United States 293 F. 1013 (D. D.C. 1923) In Frye , the court held that the methodology underlying the lie-detector test was not “generally accepted” and excluded evidence of a successful test by the defendant. (1923 lie detector) 7
Daubert v. Merrell Dow Pharmaceuticals, Inc. 509 U.S. 579 (1993) • Overruled Frye, charged courts to act as “gatekeepers” to exclude irrelevant and/or unreliable expert testimony and set forth a flexible test and some factors to consider: • Testability of the method Peer review and publication of the method • The error rate for the method • • General acceptance of the method 8
General Electric Co. v. Joiner 522 U.S. 136 (1997) • At the time Joiner was decided, there was a split among the circuits concerning the appropriate standard of review of Daubert rulings. • Supreme Court reversed 11 th Circuit’s overly “stringent” standard of review of District Court’s Daubert ruling, holding that appellate review is an abuse of discretion standard. 9
General Electric Co. v. Joiner 522 U.S. 136 (1997) The Supreme Court further held: "[C]onclusions and methodology are not entirely distinct from one another. Trained experts commonly extrapolate from existing data. But nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert. A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered." 522 U.S. at 146. 10
Kumho Tire Co., Ltd. v. Carmichael 526 U.S. 137 (1999) • District Court excluded testimony of tire failure expert in tire blowout/rollover case using Daubert analysis. (actual photo of tire in Kumho ) 11
Kumho Tire Co., Ltd. v. Carmichael 526 U.S. 137 (1999) Eleventh Circuit reversed, holding that Daubert only • applied to the “application of scientific principles” rather than “skill or experience-based observation.” • The Supreme Court disagreed, holding that Daubert applied to expert testimony based upon “technical” and “other specialized knowledge.” • “[A]n expert, whether basing testimony upon professional studies or personal experience, [must] employ in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” 526 U.S. at 151. 12
Weisgram v. Marley Co., 528 U.S. 440 (2000) • District Court admitted expert testimony concerning the origin of a fatal fire, and the plaintiff prevailed at trial. • Eighth Circuit reversed, holding the expert testimony was scientifically unreliable, and the remaining evidence was insufficient to support the jury verdict and directed the district court to enter judgment for the defendant. 13
Weisgram v. Marley Co., 528 U.S. 440 (2000) The Supreme Court upheld the Eighth Circuit’s ruling, holding under F.R.C.P. 50 “that the authority of courts of appeals to direct the entry of judgment as a matter of law extends to cases in which, on excision of testimony erroneously admitted, there remains insufficient evidence to support a jury’s verdict.” 528 U.S. at 547. 14
Wal-Mart Stores, Inc. v. Dukes, 564 U.S. --- ,131 S.Ct. 2541 (2011) In Dukes , an employment class action, the Supreme Court did not rule directly on the issue, but did indicate that a full Daubert analysis may be warranted: • “The District Court concluded that Daubert did not apply to expert testimony at the certification stage of class-action proceedings. We doubt that is so[.]” Dukes , 131 S.Ct. at 2553- 54. 15
Federal Rule of Evidence 702 Testimony by Expert Witnesses 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 16
How Courts Apply Daubert Qualifications of the expert • • Expert bias • Testability of the expert’s theory Error rate • • General acceptance in the field • “Fit” • Expert’s method independent or for litigation • Extrapolation • Accounting for alternative explanations • General acceptance of the field itself 17
Practical Considerations • Cost • Timing • Likelihood of success • Requisite knowledge or expertise 18
Strategic Considerations • Permits cumulative or inadmissible evidence. • Impact on case value. • Relationship to summary judgment. • Impact when experts intertwined. • Setting the stage for a challenge. • Maximizing the benefits. 19
Examples of Daubert in Construction • Hydrologist’s groundwater model stricken. • Engineer’s analysis of concrete failure stricken. • Geotechnical engineer’s opinions withdrawn. • Geotechnical engineer’s opinions admissible but against the weight of engineering community. • Cases settled before ruling. 20
Construction Expert Qualifications • Hewitt v. Liberty Mutual Group Inc. , 82 F.R.D. 681, 686- 87 (M.D. Fla. 2010)(Non-engineer insurance adjustor may opine as to wind as cause of roof damage.) • Johnson v. Inland Steel Co. , 140 F.R.D. 367, 372-73 (N.D. Ill. 1992)(Prohibited occup. Health physician from testifying re design & construction of staircase). • Taylor Pipeline Const. Inc. v. Directional Road Boring, Inc. , 438 F.Supp.2d 696, 705-706 (E.D. Tex. 2006)(Construction expert may not testify re duties.) 21
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