JUST BECAUSE I MAY BE AN “EXPERT” DOES NOT MEAN I AM GIVING EXPERT TESTIMONY

On a construction project, it’s hard to argue that the involved parties — whether an architect, engineer, contractor, subcontractor, developer, etc. — are not experts in their field, i.e., they all some scientific, technical, or specialized knowledge or skill particular to their industry.  However, this does NOT mean when they testify in trial, at an arbitration, or at a deposition regarding the construction project they are offering expert opinions / testimony as it pertains to that project.  Testifying as to facts based on personal knowledge or involvement on a project makes you a fact witness and is different than evaluating and rending an after-the-fact opinion as to the work of others.   This does not minimize your knowledge or expertise; it simply means that relative to the construction project you are involved with, your testimony is that of a fact witness and not of an expert.  (It is possible to wear both the fact witness and expert witness hat, but that depends on your subsequent role in the litigation or arbitration.)

A good discussion on this premise can be found in a non-construction case, Buzby v. Turtle Rock Community Association, Inc., 47 Fla. L. Weekly D99a (Fla. 2d DCA 2022), dealing with whether a lawyer was testifying as an expert regarding his own fees. The attorney thought he should be paid for his testimony because he was a professional testifying as to his own attorney’s fees.  Yet, his testimony was not actually in the form of expert testimony, but factual testimony as to his own fees.  The appellate court held the lawyer was NOT entitled to an expert fee (being paid for this time as an expert), and this rationale can equally be extended to parties testifying on construction projects:

This distinction between testimony (i) describing historical facts from personal knowledge and (ii) evaluating the work of others is not limited to doctors; it applies to attorneys as well. 

Thus, the question of whether a witness testifies as an expert – and is thereby entitled to an expert fee – depends not only on the witness’s credentials, but also on whether the witness actually gives expert testimony.

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Like a treating physician, [the attorney] testified to facts within his personal knowledge about acts that he either took or supervised.  Even though the acts [the attorney] described involved technical matters, [the attorney’s] recollections of them “are facts nonetheless.”

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[The attorney’s] decision to volunteer an opinion about his own work did not transform the nature of the deposition or his purpose of testifying.

Buzby, supra (internal citations omitted).

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

 

QUICK NOTE: …BACK TO THE DAUBERT STANDARD FOR EXPERT TESTIMONY

In what has previously appeared to be a game of moving chairs, the Florida Supreme Court formally adopted the Daubert standard to determine the admissibility of expert testimony.  This allows Florida to move on from the Frye standard and the moving chairs associated with which standard should apply to the admissibility of expert opinions.  A good discussion on the Florida Supreme Court’s recent application of the Daubert standard can be found here.  The Daubert standard determines the admissibility of expert testimony / opinions in federal court and now it is officially back in Florida to apply to Florida state court litigation.  This is important to know, particularly in the construction context, because many construction-related disputes utilize the services of an expert witness to render expert opinions.  

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

 

 

QUICK NOTE: EXPERT TESTIMONY – BACK TO THE FRYE TEST IN FLORIDA

imagesExpert testimony (opinions) – very important testimony in construction disputes.  Whether it is a delay claim, an inefficiency claim, a defect claim, etc., expert testimony plays an invaluable role in construction disputes.   Construction attorneys work closely with expert witnesses to ensure that an expert helps render an opinion to support their client’s burden of proof (including damages) or an affirmative defense.

 

 Recently, the Florida Supreme Court ruled that the Frye test governs the admissibility of expert testimony in Florida State courts.   Notably, this was the test used until circa 2013 until the Florida Legislature modified Florida’s Evidence Code to require the Daubert test to apply to determine the admissibility of expert testimony.  The Daubert test is the test used in federal courts and, quite frankly, is a more rigorous standard/test.   For more information on the Frye and Daubert test, please check out this article that I wrote to summarize Florida’s transition back to the Frye test.  In any event, this transition back to the Frye test can be both good and bad depending on who you represent in a Florida State court action and the expert opinion you are looking to introduce.  

 

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.