The Daubert Test was established in the 1998 case of Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). In Daubert, the Supreme Court imbued the federal trial judges with a gate keeping function to determine whether expert scientific testimony was sufficiently reliable to be admissible in a federal trial. Construction lawyers have long wondered and feared as to what level of skill, knowledge, education or training would be required to pass the Daubert Test in a delay impact claim presented to a court. This 8th Circuit Federal Court of Appeals case seems to have allayed fears that the bar would be set so high as to be insurmountable: in Weitz Company v. M.H. Washington, et al (8th Cir. 2011 http://www.ca8.uscourts.gov/opndir/11/01/093116P.pdf).
In Wietz, the scheduling expert performed a “Windows Analysis” which distinguishes activities on the critical path (that string of construction activities in which a delay causes an extended duration of the overall project) and those activities with “float” time (where delay to the activity does not affect the overall duration of the project). The expert did not perform a critical path baseline analysis but instead relied upon his expertise with similar projects. The scheduling expert testified that “near critical path” activities should be analyzed as critical even though the contractor’s initial schedule indicated a small amount of float associated with those activities. The scheduling expert also arguably had demonstrated flaws in his delay analysis, he did not visit the site or interview any of the subcontractors. The court, acknowledged that it was not required to admit opinion testimony that is connected to existing data only by the expert’s ipse dixit (an unproven proposition that is accepted solely on the authority of someone who is known to have asserted it). In this instance the arguments of the opponents that activities should have been excluded from the “critical path” did not rise to the level of inherent unreliability. The court acknowledged that a “certain amount of speculation is necessary, and even greater amount is permissible (and goes to the weight of the testimony)” and not to the admissibility of the testimony. Thus, any harm can be cured by “[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.”
The opinion is lengthy and addresses a number of other subjects. I have excerpted the pertinent portions of the opinion below:
“MH Washington claims that the district court should have excluded the testimony of Patrick W. Brannon, P.E., Weitz’s retained expert witness, as unreliable. This court reviews a district court’s ruling admitting expert testimony under Federal Rule of Evidence 702 for an abuse of discretion. United States v. Eagle, 515 F.3d 794, 800 (8th Cir. 2008). Denial of a motion for a new trial is reviewed for abuse of discretion. Chalfant, 475 F.3d at 988.
Brannon is a construction engineer retained by Weitz to analyze responsibility for delays on the project by comparing the original project schedule with Weitz’s contemporaneously updated schedules (events as they actually occurred). Brannon used a methodology known as “windows analysis,” which distinguishes activities on the “critical path,” where a delay causes a delay in the overall project, and those activities with “float” time, where a delay does not affect the overall job.
The district court may admit the testimony of a witness whose knowledge, skill, experience, training, or education merits expert status if (1) the testimony “will assist the trier of fact to understand the evidence or to determine a fact in issue,” Fed. R. Evid. 702, and (2) the evidence is relevant and reliable. Eagle, 515 F.3d at 800; see also Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 588-91 (1993). A district court enjoys broad latitude in determining reliability. United States v. Kenyon, 481 F.3d 1054, 1061 (8th Cir. 2007). If the court is satisfied with the expert’s knowledge, skill, experience, training, or education, “and the expert’s testimony is reasonably based” on that expertise, “the court does not abuse its discretion by admitting the testimony.” Id. Nevertheless, the district court must exclude expert testimony if it is so fundamentally unreliable that it does not assist the jury; otherwise, the factual basis of the testimony goes to the weight of the evidence. Larson v. Kempker, 414 F.3d 936, 940-41 (8th Cir. 2005).
MH Washington argues that Brannon’s analysis was unreliable because it
allocated most of the work on the project to the “critical path” based on an original baseline schedule (Schedule Z) prepared by Weitz that did not distinguish “critical path” and “float” activities. Further, MH Washington objects that the baseline critical-path schedule Brannon used was his own creation, thus rendering unreliable any allocation of responsibility for delays to the entire project. Because Brannon could not definitively identify each particular activity on the project as either on or off the critical path, MH Washington believes that the expert testimony was wholly incapable of testing or verification, and thus unreliable. Before the district court, MH Washington invoked RLI Ins. Co. v. Indian River Sch. Dist., No. 05-858, 2007 WL 4292109, at *5-7 (D. Del. Dec. 4, 2007), for the proposition that expert testimony that does not adequately identify the critical path should be excluded. Before this court, MH Washington points to cases where expert opinion on the responsibility for delays was excluded as unreliable. See, e.g., Lake Michigan Contractors, Inc. v. Manitowoc Co., 225 F.Supp.2d 791, 798-804 (W.D. Mich. 2002) (excluding expert analysis where the expert could not explain the link between the facts and the result,-22- testifying he “did not need to do calculations” because “I’ve done it so long, I just have it in my head.”).
Weitz counters that Brannon testified that in his experience with similar projects, “near critical path” activities should be analyzed as critical, even though the contractor’s initial schedule indicates a small amount of float associated with those activities. In addition, Weitz says that Brannon’s baseline critical-path schedule was just a simplified working document derived from Weitz’s original project schedule, a necessary step for the commonly-accepted windows analysis. Finally, Weitz notes that MH Washington did not retain its own expert to conduct a delay analysis. In the pre-trial order allowing Brannon’s testimony, the district court noted that despite “apparent weaknesses” in Brannon’s analysis, “these weaknesses do not rise to the level of making his testimony unreliable.” The district court distinguished Indian River because there the defendants had to dissect the expert’s report page-by-page to determine what documents supported which conclusion, and the expert’s methodology was “hardly apparent” because “[t]he bulk of the report is a poorly-organized time line of the project events, with analysis scattered throughout.” Indian River, 2007 WL 4292109, at *5-7. By contrast, Brannon’s report was sufficiently specific to allow MH Washington to identify specific documents that arguably demonstrated flaws in the delay analysis. The district court also distinguished the methodological quibbles of MH Washington (e.g., Brannon did not visit the construction site or interview subcontractors) from a situation where an expert is truly unable to explain the link between the facts and the result. See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997) (noting that “nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence hat is connected to existing data only by the ipse dixit of the expert. A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered.”).
The district court did not abuse its discretion in admitting Brannon’s testimony. MH Washington’s arguments about which activities should have been excluded from the “critical path” do not rise to the level of inherent unreliability, for at some point most construction activities become critical if they are all there is left to complete on the job. Expert opinion necessarily involves some speculation. See Group Health Plan, Inc. v. Philip Morris USA, Inc., 344 F.3d 753, 760 (8th Cir. 2003) (“A certain amount of speculation is necessary, an even greater amount is permissible (and goes to the weight of the testimony), but too much is fatal to admission.”). Similarly, Brannon’s use of Schedule Z (which did not identify critical-path activities) to aid in deriving the critical-path schedule is a fact that bears more on the weight of Brannon’s testimony, rather than the fundamental reliability of his analysis. See Daubert, 509 U.S. at 595 (noting that “[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.”).”