CONSTRUCTION DELAY Expert Witnesses

A large portion of litigation claims arising from construction projects stems from delays in the work schedule.  This sounds simple enough, but the actual cause of the delay can be quite complicated and confusing.  Was it the weather, lack of materials, safety issues, labor strife, or was it something else?  Was the delay foreseeable and preventable?

Because of this, expert witnesses are frequently called upon to examine the situation, conduct detailed analysis, and provide an informed opinion as to the cause of the delay.  This again sounds fairly straightforward, but how and to what extent is an individual qualified as an expert in determining delays in construction projects?  The Federal Rules of Evidence Rule 702 says that an expert is a person who possesses special “knowledge, skill, experience, training, or education.”  Complicating this is the interpretation of the rule, as there is no licensing, certification, or accreditation of construction scheduling and delay experts.  What qualifications are sufficient to be deemed a construction delay expert will be the focus of the discussion below.

Training and Education

“Formal training” in scheduling and delay analysis is a misnomer, in that there is no set course to gain the “knowledge, skill, experience, training, or education” needed to qualify as an expert and to provide expert testimony.  Some associations and schools offer formal training, but this area of practice has no accepted curriculum and no set requirements for a recognized certification as a construction delay expert.  An individual may be able to take an accredited course at a college or university or attend a multi-day professional seminar held at a conference.  Each of these would presumably encompass an examination of the roles and responsibilities of the parties involved, as well as proactive schedule management, the development of construction schedules, and the practices and procedures related to claims and claim litigation.  But again, a compulsory program of study is not prescribed or  mandatory.

As a result, self-study, day-to-day use and application of skills, and continuing education are all that is currently needed to reinforce expertise in construction scheduling delay analysis.  Formal education or a technical degree is not required to become proficient in planning, scheduling, and delay analysis.  In litigation, courts will use their own discretion in admitting an individual as a construction delay expert, with the expert’s credibility determined by the trier of fact.

Industry Standards

A significant problem with expert qualifications in construction delays is the fact that there is no precise and specified standard of care.  Unlike the standards for a surgeon, attorney, or engineer, there isn’t an industry-wide established and accepted standard of practice for analysis of construction delays and for construction planning and scheduling.  Just because an individual is licensed as an engineer, planner, architect, engineer, or general contractor does not necessarily mean that he or she is an expert in construction delays.  It does not necessarily follow that the individual has the required knowledge, skill, and experience that is needed to analyze scheduling and delays, and further give expert testimony on the subject.

There are some certification programs that are gaining acceptance throughout the field, however.  The Construction Management Association of America (CMAA) provides the CM Certification Program, which is administered by the Construction Manager Certification Institute (CMCI).  The CMCI is an independent administrative body of the Construction Management Association of America (CMAA). The Institute’s board is made up of CM professionals responsible for policies and procedures that affect the criteria for professional CM Certification.  The Certified Construction Manager (CCM) is the only CM certification accredited by the American National Standards Institute (ANSI) under the International Organization for Standardization’s ISO 17024 standard.  Over 1800 professionals have the “Certified Construction Manager” designation.  The Association for the Advancement of Cost Engineering International (AACEI) also has formal planning and scheduling committees and has published guidelines for planning and scheduling activities; however, there are no formal rules.

There are several other certifications related to this area of expertise:  Certified Estimating Professional (CEP); Certified Forensic Claims Consultant (CFCC); Earned Value Professional (EVP); and Planning & Scheduling Professional (PSP), for example.  Again, none of these has been deemed to be recognized as the certification of curriculum necessary to be an accepted construction delay expert.  Accordingly, without an industry standard, the level of experience, background, and education required of an expert to testify on a construction delay matter will continue to be decided by a judge, and the credibility of the expert’s testimony weighed by the jury.

Expert Qualifications

As mentioned above, Federal Rules of Evidence Rule 702 says that, as far as an expert’s qualifications, Rule 702 permits parties to introduce expert opinions provided that the expert has the required “knowledge, skill, experience, training, or education.”  An individual with relevant expertise who can offer responsible opinion testimony that is helpful to a judge or jury may qualify as an expert witness. (Tuf Racing Prod., Inc. v. Am. Suzuki Motor Corp., 223 F.3d 585, 591 (7th Cir. 2000)).  The Northern District of Illinois stated that in assessing a proposed witness’s qualifications, a court should consider the witness’s “full range of education, experience, and training.” (LG Elec. U.S.A., Inc. v. Whirlpool Corp., 661 F.Supp.2d 940, 951 (N.D.Ill.2009)).  However, Rule 702 prohibits admission of an expert’s opinions unless these opinions will aid the trier of fact to understand the evidence or determining a fact in issue. (Porter v. Whitehall Laboratories, Inc., 9 F.3d 607, 613 (7th Cir.1993)).

Introduction of Expert Testimony

More recently, the District Court of Rhode Island set out the threshold for expert testimony in a construction delay dispute.  The court held that a witness’s statement at trial—without particular expertise other than familiarity with the facts—was all that was needed to calculate the days of construction delay and to ascertain who was responsible for performing a specific activity.  This witness testimony fell short of the standard set by Rule 702.  No “scientific, technical, or other specialized knowledge” was required to assist the trier of fact to understand the evidence. (Allstate Interiors & Exteriors, Inc. v. Stonestreet Const., LLC, — F.Supp.2d —-, 2012 WL 5381673 (D.R.I. 2012)).  In addition, the courts examine the relevance of the expert testimony.  Federal Rules of Evidence Rule 401 states that, relevant evidence means “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Fed.R.Evid. 401.  That being said, the Eighth Circuit has explained that “[d]oubts about whether an expert’s testimony will be useful should generally be resolved in favor of admissibility.” (Larabee v. MM & L Int’l Corp., 896 F.2d 1112, 1116 n. 6 (8th Cir.1990)).  As one can see, the definition of an expert lies with the court’s application of Federal Rules of Evidence 702 and 401.  Counsel wanting to qualify a witness’s testimony as expert will need to argue within those parameters.

Credibility

The Court of Federal Claims held that an expert adequately provided analysis related to a construction delay and the resulting damages.  For each period of delay, the expert offered an opinion on the existence of a delay, who was responsible for the delay, and whether injury resulted from the delay.  The expert described the evidence he relied upon in support of his opinions. He then determined the amount of damages purportedly due to plaintiff based on his delay analysis.

The court did, however, say that qualifying as an expert witness is one thing.  The issue of whether the expert is credible is another.  The Court of Federal Claims said that its findings did not mean that the court must credit the expert’s testimony.  At trial, the Court of Federal Claims said, the plaintiff’s counsel needed to lay the foundation for the expert’s testimony.  After this, the defense has the opportunity to emphasize weaknesses and errors in the expert’s testimony on cross-examination. (GASA, Inc. v. U.S., 88 Fed.Cl. 752 (Fed.Cl. 2009)).

Conclusion

Based on the current state of expert certification and the qualifications for admission of expert testimony in trial, specific experience in the matters of construction delay will continue to be the greatest asset to using an expert witness to a party’s advantage.