Construction cases have been won and lost on the weight of the expert witnesses brought in to testify, but how can attorneys ensure expert testimony intended to bolster their client’s case is even admissible in court?

Two standards generally are accepted with relation to expert testimony. Yet, these standards vary significantly such that 36 states and the federal government embrace one standard of evidentiary admissibility, while 14 embrace the other.

The two commonly held standards are Daubert, which is more widely accepted, and the Frye standard. As one court has noted, Frye “only applies when an expert attempts to render an opinion that is based upon new or novel scientific techniques.” A court applying the Frye standard must determine whether the methodology by which an expert’s opinion was derived has been generally accepted by experts in the particular field in which it belongs.

Under Daubert, on the other hand, the trial judge is considered the “gate keeper” of expert testimony and is permitted to consider a number of factors before allowing the opinions into evidence, only one of which is Frye’s general acceptance standard. 

Because the Frye standard applies only to new or novel scientific evidence, it often is considered inapplicable in most cases. Under Frye, one court ruled that “[t]he proponent of the evidence bears the burden of establishing by a preponderance of the evidence the general acceptance of the underlying scientific principles and methodology.” As one court has noted, “[j]ust when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized...” Since most expert opinions in construction cases do not rely on new or novel scientific evidence, a Frye hearing would not be necessary, and in any event, these opinions would likely survive a Frye challenge. On the other hand, under Daubert, a challenge is more likely, and a trial judge has more latitude in determining whether to accept or reject expert testimony.

The state of Florida in 2019 definitively joined 36 other states that to some extent had rejected the Frye evidentiary standard for expert witness testimony in favor of the Daubert standard, when the Florida Supreme Court reversed its earlier decision in DeLisle v. Crane that had, just the year prior, re-affirmed the Frye standard in Florida. In changing course, the Florida Supreme Court eliminated “pure opinion” testimony of experts which had, until that time, not been subject to Frye. 

This leaves attorneys in construction matters to look to both federal and state court cases that have applied the Daubert standard in similar cases. For example, in one case, in denying the plaintiff’s Daubert motions, the court emphasized that the ultimate decision-maker plays a role in whether an expert can testify as to legal conclusions. In particular, the court explained that “the usual concerns about gatekeeping are not present in . . . [bench trials] . . . because the court as a fact finder is “’presumably competent to disregard what [s]he thinks [s]he should not have heard, or to discount it for practical and sensible reasons.’” In another matter, the court further elaborated that “the court as fact finder is free to later decide to disregard testimony in whole or in part and/or to decide how much weight to give it.”

In another matter that pitted Balfour Beatty Rail, Inc. against Kansas City S. Ry. Co., the court excluded the opinions of an expert retained to measure the critical path delay to the substantial completion of a railroad construction project because, “in drafting his expert reports and opinions, he did not previously consider . . . a key document in the case[.]” 

Specifically, the court found that the expert’s testimony was unreliable because it never articulated in any detail, even with assistance and prodding from the court, the methodology used by analysts in the construction field to determine whether a particular activity or delay in a project was a critical path activity or delay. The expert made a number of general statements about the methodology for critical path scheduling analysis when he stated that he simply reviewed certain documents and information provided to him by BBRI to determine whether activities and delays were critical path. However, the court was never able to ascertain with any degree of certainty from the expert’s testimony what steps are normally taken in conjunction with the critical path schedule analysis, and whether the expert undertook such steps in performing his analysis.

In another case, Pond Hollow Homeowners Association v. The Ryland Group, Inc., a developer sued its engineer for indemnity and contribution in connection with alleged defects in the homes related to water-table levels or drainage. In particular, the court found that the affidavit submitted by Plaintiff’s expert failed to establish an applicable standard of care because it failed to “explain industry practices or refer to contract or industry guidelines related to evaluation or recognition of a water table.” Ultimately, the court found that merely alleging that a standard of care was breached is insufficient. 

When the success (or failure) of a construction dispute hinges on the admissibility of expert witness opinions, counsel must be aware of the applicable standard in the relevant jurisdiction and ensure that their expert’s opinions will survive a challenge under that standard.