22.5 Use of Experts

• Library: Virginia Construction Law Deskbook (Virginia CLE) (2019 Ed.)

22.5 USE OF EXPERTS

22.501 In General. The use of experts as witnesses in Virginia is governed by statute ²⁴ and by rules of evidence. This discussion is not intended as an analysis of Virginia statutory law or the rules of evidence applicable to experts. As in determining the use or admissibility of any evidence, the appropriate research must be done before challenging, or meeting any challenge to, the permissibility of expert opinion on a particular issue or the qualifications of the expert to provide an opinion.

22.502 When Expert Witnesses Are Needed. The simple explanation for why expert testimony is so prevalent in construction cases is that bad results in a construction project do not necessarily mean that the contract was breached or that a particular party is clearly responsible for the problem. There is no doctrine of res ipsa loquitur applicable to construction contract claims. If something goes wrong, the cause and responsibility for that problem must be proved—they cannot be presumed.

For example, absent a contract provision shifting the responsibility to the contractor, the owner warrants to the contractor that the plans and specifications are adequate. If the contractor follows the plans and specifications and the resulting structure is defective, that is not the contractor's

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responsibility and the contractor is entitled to be paid. ²⁵ There are various nuances to this basic rule, depending on the extent to which the contractor assumed responsibility for the design, either by contract or conduct. ²⁶ The controversy typically centers on disputed interpretations of what was required by the plans and specifications and disputed analyses of whether the plans and specifications were followed. It is thus necessary to determine what caused the defect to occur: were the plans defective, or was there a mistake in their implementation? Were the requirements ambiguous, so that the contractor adopted a different interpretation than what was intended by the owner and designer? If so, was the interpretation reasonable? The determination of what went wrong and who is responsible often cannot be made from easily defined facts, and opinion based on particular expertise thus is required.

Continuing with the same example, in the absence of a contract provision imposing a different standard, the design professional preparing the plans and specifications is not held to a standard of a perfect product but merely a product that exhibits preparation with reasonable care. ²⁷ Accordingly, someone must present a standard of reasonable care against which performance can be measured. Similarly, a contractor generally is not required to be perfect in its performance but is only required to perform in a reasonably workmanlike manner. ²⁸ Again, someone must present the standard of what is reasonably workmanlike under the circumstances. Even where the contract imposes a higher standard of care on the design professional or a higher standard of performance on the contractor, expert testimony may still be required to explain what is demanded by the contract standard.

In addition to design questions, other issues arise in construction litigation that require the use of experts. The design might be without error and the installation consistent with the design, but the equipment or material

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used might be defective. Identifying that defect requires an expert. If a structure is built that does not comply with the plans and specifications but is structurally sound and serves its intended purpose, damages to the owner may be measured by diminution in value rather than by cost of correction. ²⁹ Diminution in value must be measured, and cost of correction must be established by expert analysis to permit that calculation. If work was not completed, or if repair is required but not yet accomplished, damages may be presented by estimates of the time and cost required to complete or repair rather than by the actual cost. ³⁰ This requires an expert with knowledge of what it costs to do something and how long it reasonably should take to do it.

Damages in a construction case often involve delay and the related costs of extended performance. Schedule and performance analysis to allocate responsibility for delay is a fertile ground for expert testimony, requiring an in-depth analysis of what happened, how it happened, and why. Related to project delay is the question of how to allocate costs to the delay. The Virginia Supreme Court, in Fairfax County Redevelopment & Housing Authority v. Worcester Bros. Co., ³¹ approved the traditional Eichleay method for allocation of home office overhead. In doing so, however, the court set a guideline under which other approaches may be permissible. Deciding which approach to use, and how to bring the calculation within the standards of Worcester Bros., requires expert analysis and testimony.

There are many other circumstances in which expert testimony might be needed in construction litigation. Construction is a complex industry, calling upon the knowledge and expertise of multiple disciplines, and no one can ever predict what might go wrong. Although identifying the cause and consequences of a defect or delay may not always require expert testimony, the specialized knowledge that an expert brings to bear on the facts of a dispute will usually be both helpful and admissible.

22.503 Selecting an Expert.

A. In General. The use of experts in construction litigation is so widespread that an entire industry of construction forensic experts has

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emerged. The difficulty is not in finding an expert to present testimony on a given subject but finding one whose knowledge and credibility as a witness inspire confidence in the attorney and the client.

B. Locating the Expert. As in selecting any service provider, the most reliable method of selecting an expert is referral by satisfied customers. An attorney who has no established relationships in the construction litigation field should not hesitate to seek recommendations from other attorneys known to be active in that field. Experts with whom the attorney has dealt in the past on different issues also provide an excellent referral source. As a further resource, the benefits of a simple Internet search cannot be ignored. Information about potential experts is readily obtainable on the Internet, as construction experts participate regularly in...