Award Reversed Because of No Expert Testimony

Apr 25, 2017 | News, SJCC

Executive Summary:  A Washington concrete contractor, Salinas Construction, Inc. (SCI), was awarded $404,000 of its requested $425,000 for a job at U.S. Army Joint Base Lewis-McChord only to see this decision reversed in district court.  The problem was that SCI did not offer expert testimony, despite warnings that it was needed.

[The information for this article is taken from review of Construction Claims Monthly, MEASURED-MILE METHOD REQUIRES EXPERT OPINION, October 2016, pages 75-76).

The impact to the Contractor.  SCI’s claim of impact was a common one – they were adversely impacted by the general contractor, CJW Construction, Inc. (CJW).  According to SCI, the general contractor was late in delivering concrete, handed over poor subgrade to pave upon, and delayed the job such that SCI had to perform in poor weather conditions.

I know the business and don’t need an expert.  I don’t know what SCI was thinking, so I am taking a leap and making my own opinion here, but it may have been that SCI didn’t feel as if a 3rd party expert was necessary in this case.  SCI used John Salinas II to calculate damages likely because Mr. Salinas knows the business and, secondly, the cost of Mr. Salinas was zero.

I cannot argue the reasons stated for doing the analysis in house, but finding an expert witness would certainly have provided a more objective opinion on damages.  However, there didn’t seem to be a problem with objectivity in SCI’s presentation of damages.  More importantly here was the law:  offering expert testimony would have precluded the defendant from getting the decision reversed.

The defendant was able to ask for judgement as a matter of law under Federal Rule of Civil Procedure 50(b).  This allowed the defendant to deem Mr. Salinas’ testimony inadmissible simply because his testimony did not rely upon experts or other resources such as seminars, books, et cetera.  Simply put, he was downgraded to a layperson.

My story.  I can imagine this hurt bad – to have such a great result in one court only to have it reversed by another court.  That pain isn’t going away.  I haven’t experienced this exact source of pain, but I have been involved with expert witnesses as a contractor and I’ve approved payments to these witnesses.  It can be spendy and I can see why a contractor would do anything to avoid this payment(s).

We had marginal success in my largest matter where we spent tens of thousands on expert witnesses.  I cannot know if our award would have been only a fraction of what we took home had we not gone to out-of-house experts, but I know we did take home a check much larger than zero.

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