ConstructionPro Week, Volume: Construction Advisor Today - Issue: 92 - 01/28/2011

More Disagreement Regarding Expert Opinion

We recently discussed a dispute over the admissibility of delay testimony which failed to establish the schedule’s critical path. Now there is a case involving the need for expert testimony to establish damages for wrongful termination. Expert opinion is so widely used in the prosecution and defense of construction claims that it has come to be expected. But when is it required and what must it include?


A subcontractor presented expert opinion regarding responsibility for delay, compliance with contract requirements, and adequacy of project administration. The jury, finding that the sub had been wrongfully terminated, awarded damages. The prime contractor appealed. The prime argued that the sub’s expert had never testified about damages, so there was no evidence to support the jury’s award.



The appeal was denied. The jurors were capable of calculating damages with reasonable certainty. The subcontractor had presented evidence of subcontract billings and subcontract payments. The sub’s officials had testified to the accuracy of that information. This was sufficient.


What do you think? Is expert opinion sometimes overused in the construction claim arena? Can it become a shortcut, allowing finders of fact to shirk their responsibilities? Or is it inherently more instructive than a layperson’s analysis of the facts? As always, I welcome your input.


Featured in Next Week’s Construction Claims Advisor:

  • Expert Testimony Admissible Despite Failure to Identify Critical Path
  • Buried Metal Was Not Differing Site Condition
  • Formal Default Not Required to Reach Performance Bond




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