Construction Litigation Support & Expert Witness Testimony

In the unfortunate event a construction owner remains dismissive of a legitimate claim or becomes unwavering in their mistaken view, claim litigation becomes necessary. Having already researched and assembled the facts and damages entitlement related to your case, our expert construction claims experience is your attorney’s best asset in successfully recovering your claim damages quickly and cost-effectively.

Armed with the all-important Expert Claim Report, we assist your attorney by providing Construction Litigation Technical Support and Expert Witness Testimony to present the facts supporting your claim in person.

Construction Expert Witness Testimony

Our professional experience includes serving as a Fact Witness and an Expert Witness, delivering sworn testimony in a number of high-dollar cases. We have received high praise from attorneys and others on the detail and accuracy of our expert reports and persuasive testimony.

Our expert deposition and trial testimony includes cases involving:

  • Breach of contract
  • Schedule acceleration by the owner and its impact
  • Defective design
  • Ambiguous specifications
  • Impossibility of Performance
  • Bids and bid solicitation practices
  • Critical Path Method (CPM) Project Scheduling
  • The Collapsed AsBuilt Schedule method of allocating delay responsibility
  • Delay and disruption accountability
  • Industry Trade Practice in support of plaintiff’s means and methods viability
  • Computation of Money Damages using court and board-approved methods
  • Proper use of the Eichleay Formula to calculate extended home office overhead damages
  • Failure of facility owner (or prime contractor) entity to timely release withheld earnings
  • Wrongful Termination

and other construction and contractor-related issues.

Expert Witness-Related Training & Experience

 Related Training, Appointments, Membership

  • AAA training as Construction Arbitrator and dispute Mediator.
  • Former Member, Panel of Construction Arbitrators, American Arbitration Association, Southeastern District
  • Former Affiliate Member, American Society of Professional Estimators.

Record of Arbitration Presided Over

  • $16,000 demand by Birmingham minority subcontractor in dispute with prime contractor. Heard ex-parte, Birmingham, 1994.
  • $200K dispute between contractor, hospital owner and owner’s architect in re defective work. Facility Location: North Alabama. Heard in Montgomery, one-day hearing, 1992.
  • Three-member panel, three day hearing, $400K dispute between general contractor and subcontractor, 16 story condominium project. Location: Atlanta. Heard in Atlanta, 1991

Noteworthy Cases

2014-2015: County of Fresno v. Rising Sun Construction, California Superior Court.

  • County alleged damages upwards of $500,000 for defective work and late completion.
  • Contractor, a going business of 30 years, cross-filed for breach of contract alleging damages of $3 MM, and business destruction damages of $7MM.
  • Contractor, our client as of Sep2011, engaged us to analyze the problems and advise.
  • Did so, finding egregious County administration and multiple breaches of contract. Composed the original Claim and Damages Calculations in the form of a Request for Equitable Adjustment of the contract.
  • Deposed pretrial for two days and testified at trial for contractor for two more, responding to both questions of fact and opinion. Testimony included covered all of the issues in the “bullet point” Expert Witness Testimony list above, in varying degrees of detail.

1990 American BioReactor, Inc. v. Ashbrook Simon Hartley, United States District Court, Birmingham, Alabama, Judge Seybourn J. Lynne presiding.

  • Action for breach of contract, loss of process patent rights and privatization rights, alleging $14MM in damages.
  • Deposed for two days pretrial and testified for plaintiff as to facts and opinion, regarding
  • project scheduling, subcontracting principles, methods, and practices by general contractors aimed at nullifying negative cash flow at initial stages of projects,
  • bidding and subcontractor solicitation practices of general contractor entering into a new trade area and as first time new market participant;
  • and degree of accuracy and level of thoroughness of contract estimate done under special time and “foreign” market restraints.
  • Jury found for defendant; narrow jury instructions by Judge Lynne precluded otherwise, deserved or not.

1989 – Batteast Construction Co. v. The United States. Deposed by defendant in action in United States Court of Claims brought by contractor for wrongful default by Corps of Engineers on $30MM Army world-wide communications facility, alleging damages upwards of $8MM. Defendant cross-filed $5MM action for loss of use of facility. In 1986, we had been engaged as interim project manager in a turnaround management consultant team attempting response to the Corps’ Cure Notice on this project.  Responded to questions of both fact and opinion regarding –

  • actions taken and correspondence handled;
  • damage to contractor due to refusal of Government to timely release withheld earned funds, and
  • as to whether withholding of funds by the Corps under its reasons (unproved assertions by subcontractors to the Corps of monies owed by general contractor) was contractually permissible.

Appearances Before Government Appeals Boards & Courts, 1999-2006

  • Corps of Engineers Board of Contract Appeals, 1999.
  • The COE BCA was subsumed by the U.S. Armed Services BCA, 2000.
  • The COE BCA judge and the claims were transferred to the ASBCA, 2000.
  • Action in the Fed. Dist. Ct., N. Dist. Ala. to compel release of FOIA documents, 2000
  • Hundreds Government incriminating documents dumped, prompting
  • Fed.Tort Claims Act action in the Fed. Dist. Ct., N. Dist. Ala., dismissed; two-year filing statute
  • Fed. Dist. Ct., N. Dist. Ala., Bivens Claim action against Corps’ agents; dismissed
  • Appeal of the Bivens Claim dismissal at the U.S. 11th Circuit Court of Appeals; failed,
  • Takings Claim at the U.S. Fed. Ct. of Cl.; dismissed, and
  • Appeal of the Takings Claim dismissal at the U.S. Federal Circuit Court of Appeals; failed, 2006

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