Construction Management Expert’s Report Fails to Sufficiently Support Damages Opinion

ByZach Barreto


Updated onJanuary 5, 2021

Construction Management Expert’s Report Fails to Sufficiently Support Damages Opinion

Court: United States District Court for the Northern District of Texas, Dallas DivisionJurisdiction: FederalCase Name: State Auto. Mut. Ins. Co. v. Freehold Mgmt.Citation: 2019 U.S. Dist. LEXIS 55052


The plaintiff insurance company brought this case against the defendant building management company seeking a declaratory judgment regarding the rights and obligations under the defendant’s insurance policy. The plaintiff also sought judgment on whether a roof damaged during a storm was covered under the policy. The plaintiff had already paid a certain amount for repairs made on the property after the storm but the defendants countersued to recover additional damages to replace the roof.

The defendant’s counterclaims included contract breach arguments, infringements of the Texas Insurance Code, infringements of the Texas Deceptive Trade Practices Act, and breach of duty of fair dealing and good faith. At the root of their allegations was the argument that the plaintiff refused to perform an effective and reasonable investigation of the claim for additional damages before denying it, unreasonably delayed in rejecting a claim for additional damages, using unreasonable settlement tactics including the employment of a supposedly biased engineering company, and failed to pay their claim. The defendant also sought to exclude the testimony of the plaintiff’s construction management expert witness.

The Construction Management Expert Witness

The defendant challenged the plaintiff’s construction management expert witness under FRE Rule 702 on the basis that his testimony was not relevant in this case and would not help the jury. In an appendix to the brief submitted in favor of their petition, the defendant also argued, without justification, that the expert’s testimony was unreliable and inadmissible. The defendant argued his testimony was not reliable since he did not produce his own calculations and relied on another expert’s calculation and data.

The plaintiff responded that their construction management expert witness was appointed as an expert to testify on construction management and solicitation of bids for the actual repair work. Specifically, the expert was retained to collect bids for different trades, review for code violations, and determine fair and reasonable repair costs. The plaintiff argued that his opinion was relevant to the damages and also that the defendant failed to provide proof as to how the expert’s testimony was unreliable.


The court noted that the plaintiff has the burden of establishing their expert’s admissibility under FRE 702. The expert report consisted of a two-page list of all his opinions—most of which were factual statements about what he was retained for, what his company does, and what other companies had already provided for the roof repair. Although the plaintiff appeared to have named the expert to testify on construction management, his report did not contain any evidence or conclusions on such matters. Furthermore, though he reported a variety of incidents, such as being approached and offered bidding services, it was unclear how these incidents or evidence justified the only opinion stated in his report. The expert also suggested that he relied on the following information or data: the plaintiff’s scope of loss, the other expert’s roof inspection and bids, and an electric systems company’s site inspection and bid. Nonetheless, he failed to explain in his testimony why he concluded these facts and data supported his opinions. The court could not simply take his word for it and, therefore, his testimony was unreliable and irrelevant.


The motion to exclude the construction management expert witness’s testimony was granted.

About the author

Zach Barreto

Zach Barreto

Zach Barreto is a distinguished professional in the legal industry, currently serving as the Senior Vice President of Research at the Expert Institute. With a deep understanding of a broad range of legal practice areas, Zach's expertise encompasses personal injury, medical malpractice, mass torts, defective products, and many other sectors. His skills are particularly evident in handling complex litigation matters, including high-profile cases like the Opioids litigation, NFL Concussion Litigation, California Wildfires, 3M earplugs, Elmiron, Transvaginal Mesh, NFL Concussion Litigation, Roundup, Camp Lejeune, Hernia Mesh, IVC filters, Paraquat, Paragard, Talcum Powder, Zantac, and many others.

Under his leadership, the Expert Institute’s research team has expanded impressively from a single member to a robust team of 100 professionals over the last decade. This growth reflects his ability to navigate the intricate and demanding landscape of legal research and expert recruitment effectively. Zach has been instrumental in working on nationally significant litigation matters, including cases involving pharmaceuticals, medical devices, toxic chemical exposure, and wrongful death, among others.

At the Expert Institute, Zach is responsible for managing all aspects of the research department and developing strategic institutional relationships. He plays a key role in equipping attorneys for success through expert consulting, case management, strategic research, and expert due diligence provided by the Institute’s cloud-based legal services platform, Expert iQ.

Educationally, Zach holds a Bachelor's degree in Political Science and European History from Vanderbilt University.

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