Designating and admitting experts is a vital component of any construction dispute.  Many construction disputes require experts.  Many construction disputes can only be won with the role of an expert. Thus, experts and construction disputes go hand-in-hand. No doubt about it!  Time needs to be spent on developing the right expert opinions to support your burden of proof. This means you want to designate the right expert that can credibly and reliably render an expert opinion.

It is common for one party to move to strike the testimony and expert opinions of another party. This is referred to as a Daubert motion. Sometimes the motion is about gamesmanship. Sometimes it is to see how the judge rules on the issue. Sometimes there is a legitimate reason associated with the expert opinion. And, sometimes, it is a combination of the above. Regardless of the reason, parties know the weight expert opinions can have and, therefore, treat the opinions seriously prompting the Daubert motion.

A recent opinion out of the Southern District of Florida, Berkley Insurance Co. v. Suffolk Construction Co., 2023 WL 7010001 (S.D.Fla.2023), deals with the trial court striking a portion of a general contractor’s expert opinion. The dispute involved a general contractor and a subcontractor and subcontractor’s performance bond surety. The general contractor refused to pay the subcontractor and the subcontractor’s performance bond surety, in furtherance of mitigating damages, funded the subcontractor’s continued performance. The surety then sued the general contractor to recover losses and the non-payment.

One of the expert opinions the general contractor offered was that the subcontractor’s performance bond surety acted as a “de factor subcontractor.” This opinion was based off the surety “requesting all payment for [the subcontractor], from [the surety’s] agents’ presence at onsite meetings on the project, and from its decisions mandating certain manpower and other resources to be applied to the project after [the subcontractor] breached. [The surety] exercised complete control over [the subcontractor] to such extent that [the surety] became a ‘de factor subcontractor.’” Berkley Ins. Co., 2023 WL at *8.

The trial court, however, was not buying this expert opinion. At all. “Remarkably, however, [the expert] has never before attempted to develop the theory he advances of a surety becoming a ‘de facto contractor.’ His ‘customized’ expertise was allegedly generated to advocate for the specific legal arguments of counsel but without any objectively verifiable basis….”  Berkley Ins. Co., supra, at *8.  The trial court further explained:

An expert must show how his experience leads to the conclusion reached and why that experience is a sufficient basis for the opinion. But in this Report, [the expert] claims that a surety may become a “de facto contractor” even though he admitted that, in his entire career, there had not been one time where he had experience evaluating a surety as being a “de facto contractor.” Furthermore, [the expert] states that he has never seen, known, or even heard about a “de facto contractor” before this case. And as we stated before, he has no experience acting as a surety in any meaningful way.

To admit this opinion under Rule 702 [of the Federal Rules of Evidence] we must find there to be some showing of how his experience led to or reliably supported his conclusions. While [the expert] conveyed that he reviews industry standards and articles “every day, it’s just a normal course of my … daily routine”, he cannot cite a single industry standard or article that he has seen in his entire career that discusses the “de facto contractor” theory. With no experience to point to and no industry recognition of the “de facto contractor” theory, there is no link between his experience and his opinion besides “I think it’s just something that is understood in the industry.” [The expert] failed to show how his experience may render a reliable opinion before the trier of fact and nothing in our review of this record can save him on this score.

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So, in short, we have an “expert opinion” that effectively clothes [the general contractor’s] legal conclusions that will be presented in the case. The facts supporting that legal conclusion can be, and certainly will be, presented at trial through testimony of fact witnesses with personal knowledge. To bolster that testimony with an expert opinion, [the general contractor] must present a witness with experience as a surety (which [the expert] does not have) or with practical experience of a contractor who has faced that dilemma (which [the expert] admits he also does not have). So the Court on this record has zero basis to find, preliminarily or otherwise, that a reliable expert opinion can be forthcoming through this expert. As to this “de facto subcontractor” opinion, he is not an expert at all. Hence, his testimony in this regard must be excluded.

Berkley Ins. Co., supra, at *8-*9 (internal citations omitted).

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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