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