Construction Design and Defect Litigation: Using Daubert/Frye to Challenge Admissibility of Expert Witness Testimony

In most construction suits, both sides rely on experts to provide opinions and testimony in support of or against claims of liability and damages. Such expert testimony often involves determining fault for design and construction defects and calculating direct and consequential damages, among other issues.

The Daubert ruling and the body of law surrounding challenges to expert opinions and testimony continue to evolve for construction disputes. Courts require that expert testimony—as well as the methodology or technique on which it is based—be tested to ensure that it is relevant and reliable.

Expert opinion and testimony impact all parties in a construction dispute, including property owners, developers, financial institutions, design professionals, contractors, subcontractors, suppliers and vendors.

Listen as our panel of construction litigators discusses the applicability of the Daubert standard to the presentation of expert testimony in construction disputes and analyzes what is required to successfully raise a Daubert challenge to the admission of expert testimony.

1. Dispositive motions in the Daubert hearing: the Daubert challenge
2. Daubert’s application to construction cases
   1. Is the construction expert qualified?
   2. Is the construction-related testimony reliable and relevant?
3. Case law regarding Daubert’s application to specific construction claims and damages
4. Strategies for rebutting proffered arguments in support of expert witness testimony

The panel will review these and other key issues:

• How can counsel effectively challenge a construction expert witness’ theories and whether those theories have been adequately tested?
• Under what circumstances should counsel consider not filing a Daubert motion?
• How can prior rulings involving a construction expert witness be used?