Numbing the Expert Pinch: Avoiding Expert Disqualification in Construction Litigation

Abstract

This is the era of the expert. Modern construction litigation is a morass of Critical Path Method schedules and other intricate details that all but cry out for expert testimony. The more complex and specialized the litigation, the more difficult it is to identify and retain experienced experts. This expert pinch is further complicated by the "small-world epidemic" where specialized experts, by virtue of their particularized knowledge, have worked with multiple parties involved in litigation. Expert affiliations and perceived bias can become tactical considerations, dictating whether a party may utilize the available expertise. Avoiding expert disqualification is imperative. The expert chosen today may influence the outcome of litigation tomorrow. Because expert disqualification is not based on statutory or regulatory authority, it is essential to understand the trajectory of recent case law. Offering strategic planning for expert retention and disqualification avoidance adds immediate value to litigation. This article analyzes seminal U.S. federal and state case law influencing trends in expert disqualification and serves as a tool for avoiding the disqualification conundrum.