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Volume 7 - Number 41 | October 19, 2009

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  EDITOR'S NOTES | Issue 7-41
Expert opinion is commonly used in both the prosecution and rebuttal of construction claims. Expressed in written reports and oral testimony, the opinion seeks to establish causation and quantify damages. But to what extent must an expert's opinion be based on first-hand knowledge? And, must the witness possess expertise in all the technical disciplines that apply to the opinion?

In a case reported this week, a party on the losing end of a claim complained that an expert had merely "parroted" the opinions of his client's engineering personnel and paraphrased the engineers' work product. It was inadmissible hearsay, argued the losing party. But, a federal appeals court upheld the admissibility of the expert's opinion even though it may have been based in part on hearsay.

Another case this week involved expert opinion. A "measured mile" analysis was allowed in establishing the lost productivity incurred by a contractor, despite the possible mischaracterization of some of the low productivity days. Damages need not be proved with mathematical precision. In a third case, a project owner was held to have waived the right to terminate for late completion when it encouraged continued performance by the contractor.

If you have not yet signed up for this week's webinar titled Construction Documentation and Record Management: Get it Right to Prevail in Disputes  with Matt Devries, there is still time. Visit http://tinyurl.com/constructiondocumentation for more information.
  EXPERT WITNESS ALLOWED TO RELY ON INFORMATION FROM OTHERS
An expert witness is entitled to rely on information furnished by others. Admissible expert testimony can be based on a foundation that includes hearsay.
  “MEASURED MILE” PRODUCED CLOSE ENOUGH APPROXIMATION OF LOST PRODUCTIVITY
A “measured mile” analysis of lost productivity was not required to establish damages with mathematical precision. Inaccurate treatment of some low productivity days would not be grounds for reversal.
  PROJECT OWNER WAIVED RIGHT TO TERMINATE FOR LATE COMPLETION
A project owner delayed a contractor’s performance by failing to make timely delivery of owner-furnished material to the site. The owner then waived the right to terminate the contract for late completion by encouraging the contractor to continue to work after the deadline.