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35 Procurement Law. 1 (1999-2000)

handle is hein.journals/procurlw35 and id is 1 raw text is: Expertise That Is Fausse and Science That Is Junky: Challenging a Scheduling Expert BY HUBERT J. BELL, JR., AND GENE J. HEADY Contractors and owners often retain a claims consultant to conduct an independent evaluation of schedule-related claims arising out of a construction project. Schedule- related claims include claims for delay, acceleration, and loss of productivity due to disruption and resequencing. For the sake of simplicity, we will discuss schedule-related claims in terms of a delay claim. Typically, the claims consultant will employ a scheduling expert to analyze the project schedule. The scheduling expert will review pro- ject records and interview project personnel to gather evi- dence of both excusable and non-excusable delays; evi- dence that the expert can then use to determine which party contributed to or caused the schedule delay.' Sometimes evidence of the cause of a construction delay is sparse. More often, however, the evidence is coin- plex or is subject to widely differing interpretations. At trial, litigants may attempt to bridge any evidentiary gap through the introduction of the expert testimony of its scheduling expert. The scheduling expert will opine as to which party's performance was a contributing factor in the delay or the sole cause of the delay. Following the recent Supreme Court opinion in Kumho Tire Co. v. Carmichael,2 lawyers should expect challenges to expert testimony with greater frequency, especially the scheduling expert's testimony in complex construction cases. The trial judge's gatekeeping obligation regarding expert testimony is not limited to testimony involving sci- entific evidence. In Kumho Tire, the Court held that the trial judge's gatekeeping obligation, as described in Daubert v. Merrell Dow Pharnaceuticals, applies not only to scien- tific expert testimony, but to all expert testimony, includ- ing that based on technical and other specialized knowledge.4 The Daubert gatekeeping obligation requires the trial judge to make an inquiry into both the relcvance and reliability of the expert's testimony to exclude exper- Hihbert.l. Bell, Jr. is a )artner in the Atlanta, Georgia, office of Smith, Cmrie & Hancock, LLP. Gene J. Heady is an associate in the Atlanta office of Smith, Currie & Hancock. tise that is fausse and science that is junky.' It is important that one seeking to challenge the admission of the scheduling expert's testimony under- stand how to lay the groundwork to exclude the testimo- ny. It is equally important that a lawyer seeking to rely on a scheduling expert's testimony understand how to lay the groundwork to ensure admission of the testimony, and that he or she begin to lay that groundwork from the day the scheduling expert is hired. The Trial Judge's Gatekeeping Obligation Under Rule 702 and Daubert Extends to a Scheduling Expert's Testimony and to the Conclusions Reached by the Scheduling Expert Under Rule 702 of the Federal Rules of Evidence, and the Supreme Court's decision in Kuniho Tire, a federal district court should screen for reliability and relevance all expert testimony before it is admitted at trial. Rule 702, like other rules of evidence6 and procedure7 applica- ble to experts, applies without qtalification or exception to all expert testimony and provides: (continued on page 6) 0 , - M y Chair's Column 2 Competitive Sourcing 3 Past Performances 5 Construction Law Perspective 14 Committee Reports 15 Letter From the Editor 18 Publication Order Form 19

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