Expert Witness Selection: Choosing an Expert Without the Right Experience Can Be Fatal to a Claim

The selection of an expert witness can be critical to the outcome of a construction dispute. A well-qualified and strong expert witness can be essential to a party prevailing on its claim or defense. Conversely, as the recent New Jersey Appellate Division decision in Wellinghorst v. Arnott, highlights, retaining the wrong expert can have significant negative consequences and potentially result in the dismissal of a claim.

In Wellinghorst, the plaintiff was injured in 2007 while walking when she tripped over the edge of a utility trench that had been cut in the roadway in connection with a construction project. Plaintiff retained a professional engineer as her expert. The expert conducted a site investigation, during which he took measurements, made observations, and took photographs. Based on the foregoing, the expert opined in 2011 that the asphalt patch covering the trench sunk, while the surrounding roadway did not, due to improper backfill. At his deposition, he testified that because the backfilling had occurred approximately four years earlier, he was unaware of any test that could determine why the patch had sunk. He further stated that there were no tests he could perform to determine whether there was insufficient compaction of the trench because any tests would have had to have been performed at the time the trench was backfilled. However, when questioned about “ground penetration radar testing,” he testified that he was not familiar with it, and when asked about a Westervelt cake test, he acknowledged that he was “not certified to make” that test. The defendant that oversaw the construction project filed a motion to bar plaintiff’s expert, which was granted. The court ruled that although the expert had more than 30 years of experience as an engineer, his opinion lacked any factual or reasonable scientific basis because he was not present when the patch sunk and he failed to conduct any tests to determine what happened. As such, the court determined that his opinion that improper backfill caused plaintiff’s injury was not admissible.

On appeal, the Appellate Division affirmed the trial court’s ruling, noting that an expert’s opinion must state the “why and wherefore” of the opinion and that an opinion based solely upon a personal opinion is unreliable. The Court also emphasized that the expert performed no tests even thought such tests were available. Finally, the Court flatly rejected plaintiff’s contention that expert testimony was not necessary, finding that the issue of whether the trench was properly backfilled and compacted is beyond the knowledge of an average juror as demonstrated by the fact that testing procedures were available to determine the cause of sinking of the patch.

The Wellinghorst decision demonstrates the critical importance of selecting the right expert in a construction dispute. Although tests were available to potentially determine the cause of the asphalt patch’s failure, the expert retained by Plaintiff was either not familiar with or unable to perform such tests. The failure to perform such tests rendered the expert’s opinion inadmissible, and ultimately resulted in the dismissal of Plaintiff’s case. In selecting and retaining an expert, parties to a construction dispute should endeavor to ensure that the expert is sufficiently qualified, experienced, knowledgeable regarding the available types of scientific testing and analysis in the particular field in which an expert opinion is sought, and capable of performing or having performed such tests to the extent necessary to offer an opinion.

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