Advise & Consult, Inc. | September 18, 2015
Expert witnesses can sometimes play a vital role in providing expert witness testimony during construction defect and dispute cases to lawyers, judges and jury members. I say sometimes in that too frequently there are a hand full of expert witnesses that don’t prove to be worth anyone’s time, much less their money that a client puts up in good faith that they will get a quality service. As with any profession, there is a few that give the majority a bad name, whether that be attorneys, insurance providers and in this case expert witnesses.
The case I am referring to is Wehman v. State Farm Fire and Cas. Co., No. 14–1416 (FLW)(DEA) (D.N.J. Sep. 3, 2015).1 This case involves a property insurance dispute after Superstorm Sandy and whether an expert witness testimony should be allowed. Wehman hired a Mr. Fife as an expert witness to provide testimony as to the damages and repair costs on their home. A 12 page estimate that outlined the damages to both the interior and exterior of the home totaling $86,000 was presented to the insurance company. The dispute arises from the fact that Mr. Fife never inspected the property, nor had any communication with the Plaintiff on the damage to their home. The inspection was performed by a Mr. Davis.
The insurance company moved to have Mr. Fife’s testimony excluded as he has no factual basis for his report and that it was nothing more than speculation. As rebuttal, the Plaintiff contended that while Mr. Fife did not personally conduct the inspection of the property, Mr. Fife “has been in the profession of providing damage estimates for well over a decade” and the process used by Mr. Fife is “routinely” used to prepare estimates for storm damage.
The court stated:
Without inspecting [the] property or attempting to determine whether the observed damage to [the] property existed prior to Sandy, or was caused as a result of conditions during Sandy, Mr. Fife’s conclusion that the listed damage to [the] property was caused by Sandy [was] tenuous and speculative and offer[ed] little more than the mere possibility that Sandy caused damage to [the] property.2
The court determined that the plaintiff “failed to establish that the estimate is an accurate or reliable documentation of the damage caused to Plaintiff’s property as a result of Sandy and subject to coverage under Plaintiff’s insurance policy.”3
In the cases of construction defects and insurance disputes, expert witnesses don’t usually have first-hand knowledge of the construction or the dispute of the property. Through years of experience and understanding the process the expert witness can base his testimony on what most likely happened, but when an expert is removed even a step further and doesn’t even look at the property in question, it removes the ‘witness’ portion of his title and, as the court agreed, should not be allowed to perform as an expert witness.
It is also disturbing that this process was described as “routine”. There are few things that are “routine” in construction defects and insurance disputes as each one has their own quirks, details and ramifications. There shouldn’t be a one size fits all routine and property owners, attorneys, and insurance carriers should not only expect, but demand a better level of expert witness and experts like this should not be allowed to offer expert witness testimony.
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1 Wehman v. State Farm Fire and Cas. Co., No. 14–1416 (FLW)(DEA) (D.N.J. Sep. 3, 2015).
2 Id. at 4.
3 Id.