Courthouse Reporter Series – How to Avoid Having Your COVID-19 Expert Stricken

D’Arcy Vicknair founding partner, Andrew Vicknair, recently authored a blog for the American Bar Association and posted on The Dispute Resolver: Courthouse Reporter Series – How to Avoid Having Your COVID-19 Expert Stricken.

Expert witnesses play a key role in litigation, especially when dealing with construction issues. The testimony of an expert at trial can be a deciding factor in helping persuade a jury or judge in your client’s favor. Thus, it is imperative that your expert’s opinion meet the proper legal standard.

In Polaris Engineering, Inc. v. Texas International Terminals, LTD, the United States District Court for the Southern District of Texas reiterated the importance of an expert’s opinion complying with the applicable legal standards governing expert testimony. 2023 U.S. Dist. LEXIS 109413 (S.D. Tex. June 26, 2023).

The legal standard at issue in Polaris was Rule 702 of the Federal Rules of Evidence. Polaris involved a suit arising from a contract related to the design, engineering, and construction of a terminal and crude-oil processing facility for Texas International Terminals in Galveston, Texas. There were four separate contracts that governed the Project. One of the contracts governed the creation of the 50,000 barrel per day crude processing unit. Because the parties wanted to move quickly, they agreed to certain assumptions about the Project and specifically designed a change order process whereby the price and schedule could be adjusted if the agreed upon assumptions were incorrect.

Polaris submitted a multitude of change orders, which it alleged Texas International never accepted or rejected. Polaris also insisted that Texas International failed to adequately engage in the change-order dispute resolution process as detailed in one of the contracts. Texas International attempted to bring the Project online and introduce crude oil. However, the Project failed to achieve stable operations and the parties’ relationship fell apart. Polaris alleges that this was because TXIT used nonconforming crude oil and refused to engage qualified operators.  Polaris alleged that Texas International failed to pay what it owed under the four contracts and filed suit seeking various forms of relief. The matter was removed to federal court.

One of the claims asserted by Polaris involved a claim for over $18 million in COVID-19 related change order requests that it submitted to Texas International after filing suit. In an effort to support its claims, Polaris utilized two experts to specifically testify about the various impacts that COVID-19 had on Polaris’s schedule and the various damages that Polaris incurred from the COVID-19 delays.

Texas International moved to strike the testimony from both experts claiming that the expert testimony was based on unreliable data and did not include any methodology. In ruling on the motions, the Court made it clear that they are “gate-keepers” and have to ensure that expert testimony is both relevant and reliable. The Court stated that the proponent of the expert testimony (in this case, Polaris) bears the burden of proving the:

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact trier of fact understand the evidence or a fact in question,
(b) the testimony is based on sufficient facts or data,
(c) the testimony is the product of reliable principles and methods, and
(d) the expert has reliably applied the principles and methods to the facts of the case.

The Court struck Polaris’s first COVID-19 expert because the expert did not model the alleged COVID-19 schedule impacts in its delay analysis but simply stated that construction was disrupted by labor absenteeism and other COVID-related restrictions and procedures. The Court further pointed out the expert’s failure to use any specific method to explain how or to what extent Polaris’s safety protocols caused delay. The Court ultimately found that the expert’s opinion was not the product of a reliable method. The Court noted what the expert had done in analyzing other delays on the Project, such as the Critical Path Method and noted that no such analysis had been done with respect to the COVID-19 delays. This lack of analysis was noted by the Court as warranting exclusion of the opinion.

The Court noted that Polaris’s second COVID-19 expert did use a method and appropriate facts to conclude that Polaris’s damage calculation was reasonable and, if COVID-19 caused the delays, then this portion of the expert’s testimony would be admissible. However, the Court noted that the expert failed to use a methodology or provide facts to support that COVID-19 actually caused the alleged delay. The expert admitted that he had not identified documentation to support the delay was caused by COVID-19 and referred to the first expert’s report for the delay assessment rather than performing his own analysis. Ultimately, the Court ruled that the second expert’s conclusions were inadmissible because they were not supported with facts and a methodology.

Expert opinions are important and often needed. However, as illustrated in Polaris, courts will strike opinions that do not comply with applicable standards such as here: supporting facts and reliable methods.

Be proactive by discussing the admissibility standards with your expert and evaluating their opinions to avoid any potential for having the opinions stricken. Do not be afraid to communicate the importance of the standards to your expert. After all, it may prevent you from having your expert opinion thrown out.