Untitled Document
According to Federal Rule of Evidence 702 and clarified by the 1993 Daubert matter (Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993)), the process of proving cause and effect often requires the use of expert testimony. One condition set forth is that a witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert has reliably applied the principles and methods to the facts of the case. Addressing this condition often involves the requisite expertise to deliver the cause-and-effect explanation in a manner that limits or minimizes any inferences necessary to fill in “factual gaps.” Several matters have established precedent and parameters that may be helpful to consider when proving cause and effect. Although addressing the specific case findings is beyond the scope of this article, one such matter—to take the example of Appeal of Dawson Construction Company, Inc., No. 93-03 BCA P26, 177 (June 25, 1993)—notes that courts and boards of contract appeals have exhibited some leniency in accepting contractor proofs of the amount of damages; however, they hold contractors to a more rigorous standard in examining proof of causation. It goes on to say that in the case of productivity loss, contractors have failed to recover when they were unable to (1) show that the owner was responsible for the claimed loss, (2) demonstrate that the explanation favoring recovery for the loss was more plausible than another explanation that did not support recovery, or (3) provide a reasonable basis for allocating the additional cost among a variety of contributing factors.
Understanding these challenges can help when undertaking the task of establishing a causal link. For instance, in showing that the owner was responsible for the claimed loss, it’s important to address self-inflicted inefficiencies and disruptions and to show how they are accounted for. Id. A trier of fact will be less likely to award damages that are speculative or when it believes the claim may include costs for the contractor’s own problems, so it is important to identify those issues up front and account for them appropriately. Also, explanations limited to generalities and anecdotal allegations must be avoided. Madison Crushing v. Volkmann R.R., 2003 WI App. 22 (Wis. Ct. App. 2002). It’s helpful to be specific and thorough in an explanation, but not complex. Recognizing that the trier of fact may not have lived through the effort of culling through daily reports and other project records, it is helpful to consider the best way to summarize detailed causation issues to a judge or jury in a straightforward manner. In doing so, it is prudent to appreciate the role that project records have in establishing causation. Case studies have suggested that triers of fact have been more compelled by details and specifics on how an event or alleged disruption results in a claimed impact when it is supported by contemporaneous project records, including photographs, videos, or other tangible visual aids, which people remember better than just written narratives. For example, the Dawson case cautioned, “Expert opinions offered on certain matters that clearly are not supported by the record tended to cast a shadow on the value of other opinions concerning issues where underlying factual matters were less clear.” Appeal of Dawson Construction Company, Inc., No. 93-03 BCA P26, 177 (June 25, 1993). Accordingly, well-prepared daily reports, project photographs, and other project records maintained contemporaneously can serve as valuable tools and often provide an effective means to help in developing the cause-and-effect link.
Moreover, it may be helpful to provide some structure to the cause-and-effect continuum. Effectively establishing causation typically first requires identifying the root cause (sometimes referred to as proximate cause), intermediate cause, and direct cause (sometimes referred to as immediate cause). Identifying the root, intermediate, and direct causes can be important as they often establish the path through which the cause-and-effect explanation should be delivered. Root causes can include design changes, scope changes, force majeure, specific and isolated events, contractor rework, or improper scheduling. Intermediate causes can include acceleration, overtime, over-crowding, out-of-sequence work, or cumulative effect. Direct causes can include fatigue, idle time, a less optimized work process, or increased rework. Once the various points through the continuum are identified, the effectiveness of the cause-and-effect link becomes a function of using the project records and factual data to demonstrate how those points can be sensibly connected. A judge or jury will typically be more inclined to find the cause-and-effect link more plausible when a cogent presentation is made using project records, such as daily reports and project photographs.
In summary, establishing causation is a fundamental requirement to the successful preparation and resolution of a construction claim. It is important to recognize the role of an expert in this regard. A logical presentation explaining to the trier of fact the link between the root cause and the resultant impact in such a manner that the explanation is specific and sensibly flows is helpful. The use of contemporaneous records such as daily reports and project photographs supporting the facts can help make the cause-and-effect explanation more effective. The more that a witness can assist the judge or the jury, on their own, to arrive to the conclusions using project records, the less inclined they will feel to have to make inferences, and the more persuaded and compelled they may be to accept the cause-and-effect logic.
While this article is intended to provide some considerations to help in establishing causation, projects and situations have their individual nuances and circumstances that should be analyzed case-by-case.
Keywords: litigation, construction, cause and effect, preponderance of evidence, project records, expert testimony
Paul Ficca is a senior managing director and global practice leader of FTI Consulting’s Construction Solutions Group in Seattle. Peter Vosbikian is a construction solutions senior director in FTI’s Philadelphia office.