Delaware: Construction—Daubert Motion to Exclude Expert Testimony Granted
May 6, 2019

In this action, the Third Party Plaintiff, a General Contractor who had been sued by a group of residential homeowners for water damage, alleged that Rawle & Henderson LLP’s client, a subcontractor, failed to notice and report a defect in the weatherproofing elements of a deck prior to laying the cast stone coping over the top.  This defect was outside the subcontractor’s scope of work, but the General Contractor argued that the subcontractor was contractually obligated to report defects even outside the subcontractor’s scope.

To advance that argument, the General Contractor hired a construction expert with over 50 years of industry experience in construction to opine as to the subcontractor’s alleged fault for the water damage.  The General Contractor’s construction expert offered, in his report, his opinion that the contract imposed on the subcontractor a duty to inspect for defects in the construction, even defects outside the subcontractor’s scope of work.  The General Contractor further opined that failure to inspect and report triggered the indemnification provisions of the contract.

Rawle & Henderson LLP filed a Daubert motion to exclude the expert report as offering an impermissible legal conclusion under Delaware’s Rule of Evidence 704 (which is identical to the federal rule).  We argued that an expert cannot offer the fact finder contract interpretation, as that was the exclusive province of the court and the finder of fact.

In opposition, the General Contractor responded that the construction expert was providing industry context for the clauses in the contract, which is permissible under Delaware law.

The Court ruled in favor of Rawle & Henderson LLP’s client and excluded testimony related to most of the report.  The Court reiterated the importance of Evidence Rule 704, which precludes experts from offering testimony as to legal standards, duties or ramifications.  The Court noted that any statement by the expert as to what duties were imposed by the contract was an impermissible legal opinion rather than industry contract.

The Court then proceeded to outline the portions of the expert report that she found objectionable.  In particular, she noted that when the expert quoted from the contract, that action “underscores the fact that he’s offering a legal opinion and legal interpretation of the contracts.”  The Court ruled that she would permit into evidence the portion of the report opining that if the subcontractor had taken certain steps, the damages would not have occurred, but ordered that the expert stop short of saying those steps were contractually required of the subcontractor.

This ruling was significant because the Court seldom excludes reports from experts with impressive qualifications.  This is because rule 702 and the Daubert standard allow experts generous leeway to opine on the subject of their expertise.  The Delaware Courts will, however, enforce rule 704, which prohibits parties from using experts to advance their legal arguments rather than their factual claims.  The Court is the authority as to the law and will preclude expert testimony that invades the Court’s province.

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