Construction Expert Witness Testimony Allowed

Defendant insurance company hired construction expert witness to opine on allocation of responsibility for specific costs in project.  The plaintiff filed motions to exclude this testimony.  The court ruled to allow the expert report.

Facts: This case ( PAIGE INTERNATIONAL, INC. v. XL SPECIALITY INSURANCE COMPANY, et al – United States District Court – District of Columbia – May 25th, 2016) involves a lawsuit filed by a subcontractor against an insurance company (XL) that sold bonds to another subcontractor that hired the plaintiff.   The insurance company hired construction expert witness Donald Harrison to opine on allocation of responsibility and costs associated with the job.

The work involved the construction of the Marriot Marquis Hotel in Washington D.C.  The prime contractor on the job, Hensel Phelps Construction Company, hired numerous subcontractors, who, in turn, hired subcontractors.  One of the subcontractors, Truland Systems Corporation, hired Paige International to perform a portion of the work.

Truland purchased two bonds from XL.  One was a payment bond, in which the defendant pledged to make payments to those under contract with Truland if it (Truland) failed to pay.  In addition, Truland also purchased a performance bond from the defendants, which provided a guarantee that Hensel would be paid in the event that Truant stopped performing on their contract.

Truland subsequently declared bankruptcy, became insolvent and was terminated by Hensel.  Hensel then filed a claim with XL and was paid $3,550,000 on performance bond.  Paige then filed suit against XL, claiming that they should be paid under the payment bond that Truland purchased from them.  The XL’s defense is that payments made under the performance bond should be deducted from the payments bond.

In order to prove their case, XL hired Donald Harrington to assess and allocate responsibility for costs associated with the work that Tru;and started bud did not complete.  The plaintiff’s filed four motions to exclude parts of the report and the judge has decided to encapsulate them into one Daubert motion.

Discussion: The court moved through the four part test of Daubert in turn.  The first part is the expert’s knowledge.  The plaintiff, its motion, did not argue against Harrington’s qualifications.  In addition, the defendants provided ample background for the first part of the Daubert test to be a non-issue here.

The plaintiff details numerous reasons that Harrington lacks knowledge relevant to this case.  Paige relays that Harrington’s report is based on insufficient evidentiary foundation and is thus unreliable.   The court disagreed, stating that, at this juncture in the case, the Harrington report will be allowed as it is based on sufficient data.

In addition, the plaintiff states that the report is not based on reliable principles and methods because Harrington does not express any judgment based on his experience and in his reliance on methodology.  They state that Harrington is just repeating information from Hensel Phelps.  Again, the court disagreed, stating that the report utilized reliable methods and principles.

Last, the plaintiff stated that Harrington’s methods and principles detailed in his report do not apply to the specifics of the present case.  The court again disagreed.

Conclusion:  The motion to strike the report of Donald Harrington is denied.