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How To Effectively Attack & Defend Expert Testimony: Hypothetical Construction Examples Under Daubert – Blog 3 Of 9

How to Effectively Attack & Defend Expert Testimony: Hypothetical Construction Examples under Daubert – Blog 3 of 9

Post Series: How to Effectively Attack & Defend Expert Testimony
  1. Water Intrusion Case

Tenants in a new 30-story office building complain to the owner of water intrusion during thunderstorm events.  Water puddles on the interior sills during some storms, but not during every storm and not always in the same locations.  The problem does seem to occur more often during wind driven rains.  Leaks are more common on the north and east elevations; tenants have reported only two leaks on the south elevation and none on the west elevation.  The contractor directed its glazing subcontractor to caulk the window frames at windows where leaks were reported, which seemed to help, but in some instances leaks returned.  The contractor refuses to perform any more repairs after its one-year warranty expires, and the owner files a construction defect suit.

The plaintiff and defendant both retain building envelope experts to investigate the water intrusion.  The building has a curtain wall system that is designed with two-inch deep sills at the bottom of each window to hold water that penetrates past the window gaskets, with weep holes on the outside to allow any such water to weep back out to the exterior.  The plaintiff’s expert is a P.E. with twenty-five years of experience in designing new window systems, investigating the cause of leaking windows and designing repairs for leaking windows systems.  The defendant’s expert is a P.E. and a general contractor who has constructed many complex commercial buildings, including high-rise office buildings that used similar curtain walls with water management systems.  Defendant’s expert has limited design experience and has never designed new window systems or repairs for leaking window systems.  Defendant’s expert has also never performed water intrusion tests on windows, but has observed others do so on numerous occasions.  Defendant’s expert is generally familiar with ASTM testing and how water management systems work in curtain walls, but has never personally installed or repaired windows or performed ASTM testing.

The plaintiff’s expert follows the investigative steps in the general forensic protocol set forth in the ASTM E-2128.  In connection with his window condition assessment, plaintiff’s expert performs fifteen ASTM E-1105 chamber tests, eight in areas of previously known window leaks and seven in other randomly chosen locations.  In areas of previously known leaks, five of the eight tests are positive for water infiltration.  Three of the seven tests in the random areas are positive.  The plaintiff’s expert then disassembles two window units for examination, one where he was able to recreate a previously known leak and one in a random area that leaked during testing.

The expert discovers that both windows examined have back dams that are only one-inch high, rather than the two inches required by the state product approval for those windows.  The plaintiff’s expert then decides to perform sill pan flood tests on 20% of the windows on each floor of each elevation by taping the weep holes shut and flooding the sills with 1 ½ inches of water to see if they will flood over the back dams and leak into the interior of the building.  Plaintiff’s expert has performed sill pan flood tests throughout his career and uses them as a surrogate test for the more expensive ASTM E-1105 tests to avoid the expense of disassembly of each of the windows to determine if they all have one-inch sills instead of the required two-inch sills.  All sill pan flood tests result in water intrusion into the interior.

The plaintiff’s expert determines there is no need to increase the sample size because all the sill pan tests resulted in water intrusion to the interior and concludes that all the windows need replacing because the sill pans do not meet the product approval requirement of two-inch deep sills.  The plaintiff’s expert report states that based on the expert’s 25 years of experience in diagnosing water intrusion and designing fixes, there is no need to increase the sample size because anything over a 70% failure rate on sill pan flood tests for this sample size indicate a systemic building-wide problem.  Plaintiff’s expert also opines that the three windows with previously known leaks that passed the ASTM E-1105 test likely passed because the caulking fix performed by the contractor was sufficient to prevent water from entering into the sill altogether.  Plaintiff’s expert opines that over time the caulk will shrink and deteriorate, causing new leaks if the back dams are just one inch.  The plaintiff’s expert further opines that there have been fewer leaks on the south and west elevations because, in North Florida, most storms come from the north and east.

The defendant’s expert performs no testing at all, but observes eight of the fifteen ASTM E-1105 tests that plaintiff’s expert performed.  The defendant’s expert believes that plaintiff’s expert incorrectly performed four of the eight E-1105 tests according to the ASTM protocols and the expert’s past observation of other such tests.  Of these four E-1105 tests incorrectly performed, two were on windows that leaked and two were on windows that did not leak.  Defendant’s expert agrees the back dams of the two deconstructed windows were only one inch, not the required two inches.  Defendant’s expert also opines that the sill dam flood tests are invalid as there is no specific ASTM standard for them.  Defendant’s expert concludes that fifteen E-1105 tests are statistically insignificant and, therefore, the plaintiff has no proof of a systemic problem.  Defendant’s expert ultimately concludes that only the two deconstructed windows need replacing.

Both parties file Daubert motions.  What is the result?  Based on the Author’s trial experience, the plaintiff’s expert testimony is admissible.  In the practice of the expert’s own profession, the expert has performed numerous water intrusion investigations on glazing systems and has followed the recognized ASTM E-2128 protocol.  While there is disagreement over whether plaintiff’s expert properly performed all fifteen E-1105 chamber tests, the court will leave that dispute to cross-examination.  With respect to the sill dam flood tests, because the plaintiff’s expert relies on such tests in normal professional practice as a surrogate test after first performing more expensive E-1105 tests, and because the expert actually deconstructed two windows to determine the cause of the leaking, the court will likely deem the testimony sufficiently reliable.  The court will also likely allow the sample size because that sample has proved sufficient based on the expert’s regular professional practice over a long period.

With respect to the defendant’s expert, the court will likely conclude that although the expert did no independent testing, the expert has sufficient professional credentials and has observed, and is generally familiar, with the ASTM E-2128 forensic investigation protocol and the ASTM E-1105 testing method.  Defendant’s expert observed over half of the E-1105 tests, and the court will allow testimony as to whether plaintiff’s expert correctly performed the tests, subject to opportunity for vigorous cross-examination.

The court will likely preclude defendant’s expert from testifying that the sill dam flood tests are invalid as defendants’ expert has no experience in observing or performing those tests and has no regular professional experience in window testing to make such a determination.  However, the court will likely allow defendant’s expert to testify that the expert has never seen such tests, subject again to vigorous cross-examination.  While the court might allow defendant’s expert to testify that only the two deconstructed windows need replacing, the court will likely prohibit defendant’s expert from testifying that the testing sample size was too small—the defendant’s expert lacks experience as to sill pan flood tests and necessary sample sizes for window testing as part of the expert’s ordinary professional practice.

Let us now turn to an example of expert testimony regarding damages in a construction defect case.

  1. Construction Defect Damages Expert

A plaintiff or defendant may seek to introduce damages through the estimate of a contractor or design professional.  If the expert gives a damages estimate based purely upon experience that does not relate to underlying data capable of evaluation and cross-examination, or if the expert does not normally make damage or repair estimates in the ordinary course of his or her business, that expert’s testimony  becomes problematic under Daubert.

For example, a professional engineer or general contractor may be well qualified in many technical aspects of construction, but that does not mean he or she is well versed in creating repair estimates for construction defects.  However, if a damages expert relies upon his or her experience in preparing repair estimates in the performance of the expert’s regular job duties and undertakes business risk in relying on such repair estimates, the court will likely deem the testimony more reliable and thus admissible.  While Daubert has no exact requirements as to how detailed an estimate must be, the more detail provided as to labor hours, rates, material requirements and costs the better.  Such detail allows for meaningful cross-examination and therefore makes the testimony more likely to withstand muster under Daubert.[1]  A trial attorney should not attempt to introduce damages testimony if the underlying components of the estimate are not identifiable.

Finally, let us look at an example involving a delay expert in a high-rise, Class A, office building construction project.

  • Delay Expert

The general contract requires the contractor to use CPM methodology or a similar task precedent methodology in scheduling the construction.  There is a firm completion date in the contract, after which the owner is entitled to actual delay damages.  The project comes in a year late.  The owner seeks a year of actual delay damages based upon actual lease rates negotiated with tenants who could not move in.  The owner files a lawsuit seeking delay damages, and the contractor files a counterclaim for extended general conditions.  Both retain scheduling delay experts.

The owner’s expert is a P.E. who is a professional expert witness that formerly worked for a number of large construction contractors as a scheduler and is well versed in CPM methodology.  The owner’s expert retired fifteen years ago and has not provided scheduling services for ongoing projects since that time.  The owner’s expert now works exclusively as a professional expert witness.

The contractor’s expert has no college degree, but the expert has worked thirty-five years for a large commercial construction company and is currently the Scheduling Director for the company.  The contractor’s expert oversees the scheduling department and performs CPM scheduling for larger jobs, most of which are high-rise office buildings.  The contractor’s expert is well versed in CPM scheduling methodology and software, as well as alternative scheduling techniques.  The contractor’s expert performs delay analyses for the company on problem projects.  The contractor’s expert does not generally testify as an expert, but has agreed to do so for the contractor with permission of the expert’s company in this case.

The contractor in the present case prepared a CPM schedule that the owner accepted as the project schedule.  Although there were many delays on the job, the contractor did not prepare monthly CPM updates.  The contractor did prepare several monthly look-ahead schedules, but gave up on creating regular updated schedules because of ongoing design changes.  The contractor also maintained detailed daily reports and minutes of subcontractor coordination meetings and owner/contractor progress meetings.

Due to the lack of regular, contemporaneous CPM schedule updates during construction, the owner’s delay expert prepared a “windows schedule analysis.”  The owner’s expert reviewed selected emails provided by the owner and design professionals and various project minutes complaining about the contractor’s performance.  The owner’s expert then charted the effect of these contractor issues onto the original schedule.  The owner’s expert then broke the original CPM schedule into six windows of time that established the contractor was at fault for the delay in each window.

The contractor’s expert also examined the original CPM baseline schedule to determine the original logic of the as-planned schedule.  The contractor’s expert then reviewed all daily reports, meeting minutes, delivery tickets, emails and other data to establish a detailed as-built schedule.  After the expert’s review, the expert broke the as-built schedule into windows of time through which the critical path actually ran and identified where the delays occurred.  The contractor’s expert then analyzed all of the project data to determine the causes of each delay.  The contractor’s expert concluded that the owner was responsible for nine months of delay due to design changes and value engineering changes, the contractor was responsible for two months’ delay due to subcontractor delays and coordination issues, and both the owner and contractor were concurrently responsible for one month of delay.  Both the owner and contractor filed Daubert motions to exclude expert testimony.  Who wins?

Based on the writer’s experience, the court will allow the contractor’s expert to testify, while the court may exclude the owner’s expert.  A windows analysis, if properly performed, should pass Daubert muster.  Weitz Co. v. MH Washington, 631 F.3d 510, 526–27 (8th Cir. 2011).  However, the court should exclude expert testimony that does not adequately identify the critical path.  RLI Ins. Co. v. Indian River Sch. Dist., No. 05-858, 2007 U.S. Dist. LEXIS 89519, 2007 WL 4292109, at *5-7 (D. Del. Dec. 4, 2007).

The contractor’s expert has no professional degrees, but is qualified through experience and knowledge.  The contractor’s expert followed generally accepted scheduling principles by creating an as-built schedule to compare with the original schedule to determine where delays occurred to the critical path.  Only after doing so did the contractor’s expert analyze the data to assign responsibility for the delay.  The contractor’s expert analysis also fell within the expert’s normal practice in performing scheduling and delay analyses for the expert’s employer.

The owner’s expert has far better professional and educational credentials; however, there are serious issues with the reliability of the methodology used, namely the owner’s expert failed to follow the normal protocol for a windows analysis.  Rather than first creating an as-built schedule based on all the project documentation, the owner’s expert identified delays to the as-planned schedule based upon issues raised by the owner and design professionals.  The owner’s expert then used these issues to identify windows of delay on the project.  The court may exclude this very biased opinion as unreliable because of the methodology used.

[1] Although a topic for an entirely separate discussion, both plaintiffs and defendants need to be aware of the role prejudgment interest plays in Florida damages claims.  While subject to much debate among members of the bar, the law is clear in Florida that prejudgment interest is awardable on construction defect claims and delay claims.  This requires that there be evidence of the date of loss.  The expert should take care to measure damages and costs applicable at the date of loss or at least be able to discount damages measured at a date later than the date of loss.  Failure to do so could result in disqualification of such evidence.

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