In any Massachusetts case alleging negligence against a design professional, an expert witness on the topic of liability is a critical, early consideration. Given the expense of expert witnesses, counsel representing design professionals are wise to evaluate (1) the need for an expert, (2) the timing of the engagement of an expert, and (3) the scope of the expert’s services.
To begin, not every allegation of negligence against a design professional necessitates an expert opinion. “The test for determining whether a particular a particular matter is a proper one for expert testimony is whether the testimony will assist the jury in understanding issues of fact beyond their common experience.” Herbert A. Sullivan, Inc. v. Utica Mutual Insurance Co., 439 Mass. 387, 402 (2003) (addressing duties of an insurer). For instance, in its ruling in Parent v. Stone & Webster Engineering Corp., the Massachusetts Supreme Court noted no expert would be necessary to prove professional negligence where an electrician was injured by a mislabeled distribution box carrying 2,300 volts. 408 Mass. 108 (1990). It is reasonable to expect lay jurors to comprehend the duty of an electrician to properly label a distribution box carrying potentially fatal quantities of voltage. To the extent liability is readily recognizable to the average juror (i.e. “within the ken of the average juror”), significant cost savings are achievable by forgoing the use of an expert witness. That, however, is the exception.
Far more often the duty of care is more nuanced, and an expert is required to prove liability. For instance, “[a]rchitects, like other professionals, do not have a duty to be perfect in their work, but rather are expected to exercise ‘that skill and judgment which can be reasonably expected from similarly situated professionals’ . . . Expert testimony is generally needed to establish this professional standard of care.” LeBlanc v. Logan Hilton Joint Venture, 463 Mass. 316, 329 (2012). While contracts for architects, engineers, surveyors and other design professionals often expressly set forth their duties, those contractual terms are not typically sufficient to establish liability against the design professional. More explanation is required to educate the average juror on duties (written and/or implied) of design professionals.
Furthermore, design professional deviations from the common practices of the profession do not always constitute negligence. Design creativity can be “stifled” and progress in the fields of engineering and architecture could be halted if “untried configurations” subjected the practitioners to liability. Klein v. Catalano, 386 Mass. 701, 717 (1982).
Once there is a determination that an expert is necessary legal counsel ought to engage such services early. The early involvement of an expert can assist the attorney in analysis of discovery, preparation for depositions, evaluating exposure, and mediating. Tempting as it may be to delay the procurement of an expert until the point of necessity, hoping that the matter will resolve before incurring expert-related costs, it is more typically a false saving; it invites the classic conundrum of not knowing what you do not know.
That is not to say the initial engagement of an expert need be expensive. An expert can be engaged early at minimal cost. Formal written reports are not needed early in the case. Indeed, it is unadvisable to do so unless the outcome of said report is certain. An attorney experienced in defending Massachusetts design professionals can often identify liability assessments early. Even in that instance, the preparation of a formal, written opinion is typically an expensive endeavor. An informal, verbal opinion is usually sufficient for purposes of identifying available defenses (including the affirmative defenses accompanying the Answer), preparing discovery demands to other parties, responding to discovery demands and participating in mediation.
Therefore, the scope of the expert’s services is best to be left flexible. A tiered approach is often advisable. The potential of a full disclosure, suitable for purposes of Massachusetts Rule 26, must be considered. However, before that requirement is realized, an expert can be engaged on an hourly basis to review the available documents, provide insights thereon, and present a preliminary verbal opinion. Depending on counsel’s assessment of the efficiency, credibility and value of that preliminary verbal opinion, more expert services can be arranged.
Of course, an expert’s opinion (be it verbal or written) can never eclipse the role of the juror. Attorneys must be keenly observant of this foundational truth of the practice of law – an expert is merely a component of the case; it cannot be the end-all-be-all. “The role of an expert witness is to help the jury understand issues of fact beyond their common experience. Under modern standards, expert testimony on matters within the witness’s field of expertise is admissible whenever it will aid the jury in reaching a decision, even if the expert’s opinion touches on the ultimate issues that the jury must decide. [citation omitted] An expert may not, however, offer his opinion on issues that the jury are equally competent to assess.” Simon v. Solomon, 385 Mass. 91, 105 (1982). Moreover, the ability of an opposing party to produce a contradicting expert opinion must never be discounted.
The expert is a critical component to most cases alleging negligence against design professionals in Massachusetts. That being said, the expert need not break the bank for such a case.