Expert Opinions of Consultants Raise Questions of First-Hand Knowledge and Personal Expertise

Few complex construction claims are prosecuted or rebutted without the use of expert opinion. Through written reports and oral testimony, the claim consultant attempts to establish causation and quantify damages. These opinions are invariably a distillation of a great deal of empirical information and technical methodology. It is virtually impossible for any claim consultant to possess first-hand knowledge of all the facts or personal expertise in all the technical disciplines underlying a claim opinion.

The nature of the expert opinion exposes it to the challenge that it encompasses inadmissible hearsay and should not be considered. In a recent case, a party on the losing end of a claim complained that the consultant had merely “parroted” the opinions of his client’s engineering personnel and paraphrased their work product. But the opinion was admissible. An expert is permitted to rely on outside sources even though it allows hearsay into evidence to establish the basis for the expert’s opinion.

This ruling was based on an interpretation of the Federal Rules of Evidence. Even when an opinion is admitted into evidence, however, it is still vulnerable to attack for lack of credibility.

I invite your thoughts on the expert opinions of claim consultants. To what extent should the basis for those opinions be first-hand and to what extent may they rely on secondary sources?

In next Monday's issue of Construction Claims Advisor:

• Approval of Sample Item Did Not Waive Specification
• Arbitrators Did Not Ignore “Total Cost” Method of Calculating Damages
• Holding Subs and Suppliers to Their Price Quotations

Bruce Jervis, Esq., Senior Editor
Construction Claims Advisor

Comments

[Arnold L Versaw Jr]

When numerous experts come up with the same consistent opinion of course the defendant would feel that the process was not fair. Although the damages still exist.

[Dennis A. Spors]

Th expert show always review, research and provide an independent opinion. To merely concur with those who have hired you and not show some form of objective analysis, is a mistake. I also work as a AAA Neutral and if I am left with the impression the expert was repeating what they were told without checking out the information, the value of their testimony goes down in value

[Greg Powers]

As an expert, I think it is unwise to rely on my client and their staff for the 'why' behind the issues.

They may provide the clues that I use to begin my analysis and review, but I think I would feel the same way as the loser if the 'expert' didn't verify, validate and support their view with a body of evidence...

Over the years, I've listened to the cries of my clients about what they believed were the issues, only to find out that they were way off base...

Sometimes the client is trying to discourage a line of research as they want to bury a few of their sins...

The risk is just not worth it.

[Karen L. Warseck, AIA, LEED AP]

I concur with everyone here that an independent investigation is necessary. However, sometimes, the evidence has been covered over, removed or otherwise altered. In that case, the only sources available to the investigation are those people who were there when the issue was at hand and any photographs they may have taken. Assuredly this is not the best alternative but sometimes that is all there is. Having said that, however, in my opinion it is still incumbent upon the expert to sort through the material and come up with his/her own independent analysis based on his/her own expertise and not rely on the opinions of the building personnel as those opinions are inherently biased.

[Dominick DeSalvo]

As an expert we have a duty to try and determine what really happened and what cause it had on the project. It has been my experience also that the client's never make mistakes it is always the other guy. In the past five years I have seen more and more experts just repackaging their clients claims with pretty charts and graphs without doing the necessary analysis needed to make an independent opinion of what happened and how it impacted the parties.

[Daniel M. Uman CCE, SP, RICS]

Crdeibility for an expert is everything. Paraphrasing a clients claim is not professional. An independent investigation of the facts in light of industry practise and a thorough knowledge of the construction technical issues is necessary to provide verifiable claim forensics. An expert should not be caught with a credibility problem. When they do, they client got caught with a yes man and the wrong expert.

[David Bentley, CCE, CCM, PMP, LEED AP]

Of course we have to listen to the client, that is the purpose of the interview process after we review the shelf data. If one is truly an expert and qualified for a particular case, they should be able to sort out the facts from the speculation, and develop an independant and qualified opinion. I have no problem with this.

[Thomas A. Zimmerman, FAIA, CCS, NCARB]

Conversations with the "client" fall pretty low on my reliability list. Certainly they are helpful for contextual purposes but they are indeed primarily hearsay. The exceptions relate to the more reliable sources of information the client can bring to the table to substantiate an opinion - contracts; construction documents; inspection and testing reports; other documentation. Otherwise physical evidence; photographs; deposition testimony; building codes and standards; and even weather data are more reliable sources in developing an opinion regarding building failures and negligence.

[Bruce Jervis, Editor, Construction Claims Advisor]

I think we all agree that it is one thing for expert opinion to pass the "hearsay" test and be admitted into evidence. It is another thing for that opinion to be sufficiently independent to be credible and persuasive.

[José A. Deliz]

In court, when there is only an opinion of an expert hired by one of the parts, in my opinion, the other part either, does not have a case strong enough to be supported by an expert opinion, or does not have enough money to hire his own expert. I would hope that a judge is wise enough to discriminate which case he's dealing with.

A judge should try to impose his own expert, or insist upon an expert agreed-upon between both parties beforehand, although this may not always be possible.