John Mark Goodman | BuildSmart
Loss of productivity damages are commonly estimated using a “measured mile” analysis, which compares unimpacted construction work to work which has been disrupted to determine the cost impact of the disruption. Such analyses often require expert testimony that must satisfy the reliability requirements of Rule 702 and Daubert. Generally speaking, to be reliable the analysis must compare work that is “reasonably similar.” As a Colorado federal court recently held, that does not mean the unimpacted and impacted work must be from the same project. See Agri-Systems v. Structural Technologies, LLC, 2023 WL 3481397 (D. Colo. May 16, 2023).
In Agri-Systems, the defendant moved in limine to exclude the plaintiff’s measured mile analysis because it compared work on different projects. The Court rejected the argument that to be reliable a measured mile analysis must compare work on the same project. Id. at *10 (citing Appeal of P.J. Dick Inc., VABCA 5597 et al., 2001-2 BCA ¶31,647 (concluding that an expert’s measured mile analysis was “reasonable and valid” where labor, materials, weather conditions, and area of installation were the same between two projects despite some differences). The defendant also pointed to other differences, including the location (Colorado v. Oklahoma), the quantity of men and equipment required, and the type of reinforcing materials (post-tensioning cables v. rebar). The Court noted that the plaintiff’s expert had identified many of these differences and provided detailed explanations for why they did not defeat the analysis. As such it did not appear that the expert’s selection of the other project for comparison was “arbitrary or chosen to achieve a predetermined result.” Id. citing Daewoo Eng’g and Constr. Co., Ltd. v. United States, 73 Fed. Cl. 547, 580–81 (2006). The Court further held that any unexplained differences between the two projects would go to the weight given to the testimony and not its admissibility.
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