The Need For Expert Testimony In Construction Defect Cases

More often than not, your construction defect case will fail unless your claim’s supported by an expert witness. An expert witness may be necessary to prove that the defendant violated applicable construction standards. Expert testimony may also be required to prove what needs to be done to fix the construction issue and how much it’ll cost.

A common scenario that we encounter are homeowners who have concerns about a newly constructed house. They contact their builder and make warranty claims, but either nothing’s done or the builder’s proposed solution isn’t satisfactory to the homeowner. Maybe the builder thinks that its work is just fine. Or perhaps the builder agrees that there’s an issue but isn’t willing to address it in the manner that the homeowner demands.

At that point, we start receiving contacts from homeowners. It’s then that they realize that they need more than just their subjective complaints about the builder’s work and their subjective beliefs about what must be done to fix the work. No court will allow a construction defect case to proceed on that basis alone, and most builders know that.

Instead, expert testimony from a hired expert witness is usually necessary to prove that the builder’s work didn’t meet appropriate construction industry standards. The expert needs to visit the property and view and analyze the construction issues that the homeowner’s concerned about. A report is then prepared explaining what the construction issues are and how applicable industry standards were violated. That report is then used in an effort to convince the builder to do something more than it was willing to do when the homeowner first contacted it.

There’s frequently also an issue regarding the nature, amount, and cost of the work necessary to remedy the defective construction. Proving that the builder’s work is defective because it doesn’t meet industry standards is only half of the case. The second half of the case requires the homeowner to prove what it’ll cost to remedy the defective work. Builders often dispute that the remedy is a great and expensive as the homeowner claims. In those circumstances, an expert witness can also help prove the necessary and reasonable remedies for the construction issues.

A common misconception is that homeowners merely need estimates for repair costs from other contractors and they’re ready for court. That’s insufficient, and the case will be lost, unless those contractors are also willing to explain whether and how the builder violated applicable construction standards. Otherwise, the homeowner may be able to prove damages using the contractor’s estimates, but that won’t matter because the homeowner won’t be able to prove that the builder’s liable for any defective construction. Such contractors are rarely willing to criticize the work of another member of the construction industry, so it’s risky to assume that you’ll get that testimony from a contractor rather than through a hired expert witness.

There are only four ways around the need to support your construction defect case with expert testimony. I’ve discussed one way, which is hoping that your other contractors provide the necessary testimony regarding industry standards and the builder’s failure to meet them (good luck getting that). Another, equally rare possibility, is that the builder could admit to violating an industry standard (good luck making that happen). If a government official has inspected the property and found issues with the construction, that’s usually good enough. Finally, if the construction contract called for the builder to do certain things that it didn’t do, that may be enough to prove liability. But, under all of these scenarios, you’ll likely still need proof of the necessary and reasonable steps to remedy the defective work and the costs of doing so.

Harley Erbe