Construction Site Expert Witness On Rule 702

In It Takes More Than Common Sense, construction site expert witness William Gulya, Jr., President & CEO, Middlesex Trenching Company, writes:

The primary purpose of expert witness testimony is to assist the trier of fact in understanding the evidence and/or determining a fact issue. A trial judge therefore has the duty and responsibility to ensure that an expert has specialized knowledge and their testimony will be applicable in assisting the trier of fact relevant to the case at hand.

The plaintiff in a recent Federal Maritime case alleged he tripped on a two-inch line on the vessel’s deck and sustained injuries. The plaintiff asserted an un-seaworthiness claim against defendant and sought damages for, among other things, lost earnings and impairment of his earning capacity.

The plaintiff’s legal counsel proposed a marine safety expert witness who was to opine that there was no safe access to the vessel, inadequate lighting in the boarding area, absence of a gangway, lack of supervision by the vessel’s crew, and failure to coil the line at issue as additional causes of plaintiff’s accident. The defendant sought to exclude the report and anticipated testimony of the plaintiff’s expert on the grounds that his opinions offered no specialized knowledge or assistance to the trier of fact.
The Court relied on the Fifth Circuit’s decision in Peters v. Five Star Marine, 898 F.2d 448, 450 (5th Cir.1990), which said a district court may properly exclude expert testimony if the subject matter that the proposed expert plans to discuss and the opinions he plans to express to the fact-finder are matters that a fact-finder can deal with competently based on common sense and knowledge of the world.

In this case, the plaintiff’s allegation that he suffered injuries after he tripped over a mooring line /rope on a vessel was indeed an issue that the Court was very capable of evaluating based on its common knowledge and experience. Therefore the marine safety expert’s report and testimony would be of no assistance to the fact-finder in understanding the evidence or determining a fact in issue, as required by Rule 702 of the Federal Rules of Evidence, and hence would be excluded.

This was seemingly a blow to the plaintiff’s case. However, there was a twist. The plaintiff’s counsel argued that, using the same logic, the defendant’s expert should also be excluded under Rule 702 because defendant planned to use him to offer testimony on the same issues.

The Court ruled on this evidentiary issue sua sponte (a Latin term meaning “of one’s own accord.” It refers to when the court addresses an issue that has not been presented for consideration by the litigants). Thus the court denied both the plaintiff’s and the defendant’s marine safety/ liability expert reports and precluded both experts from testifying at trial.

Rule 702 currently provides that “if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise” (Lexis Nexis).

Was the court correct in their ruling? Could the facts simply be understood by the Court by means of common knowledge? You can decide. One thing is unquestionable — an expert witness report and/or testimony must be considerable and significant in assisting the trier of fact and not simply based on common sense and or common knowledge.

Read more: William Gulya, Jr., Middlesex Trenching Company, specializes in excavation & construction site preparation.