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A Cautionary Tale: Resist the Impulse to Exert Pressure on Your Expert to Give Opinions They Don’t Really Believe

If your community association is involved in matters requiring the hiring of experts, including, but not limited to, transition-related issues, or in evaluating what to do about design and/or construction deficiencies, financial irregularities, or environmental concerns, among others, the association is going to need to engage one or more experts to assist in investigating and determining the cause and scope of each problem, a protocol for fixing each problem, and evaluating who is responsible for the damages sustained by the association.

An expert must be completely objective with no financial interest in the outcome of the case. In litigation, an expert’s opinions must be backed up by documents, testimony, applicable codes, treatises, or other recognized standards in the industry. An expert cannot support an opinion by merely relying upon the expert’s “experience.”

If the Court finds that the expert’s opinions are not adequately supported, the opinions can be barred as “net” opinions. If that happens, the association’s entire case or portions of the case can be lost on a pre-trial motion and the jury will never get to hear the expert’s opinions. Therefore, if litigation is even remotely contemplated, it is important that the association hire experts who have experience at more than just conducting thorough, well planned investigations and writing reports.

There is no reason why the association should be training the inexperienced expert on the association’s dime. The experts hired by the association should have ample experience testifying—preferably at trial but, at the very least, in multiple depositions. An experienced expert knows what must be done to avoid the embarrassment of having the expert’s testimony barred as a net opinion.

Unfortunately, sometimes well-intentioned Board members are overly aggressive in lobbying the expert to try to “help” the expert reach an opinion that the Board member is strongly committed to. Experienced experts who have been through the rigors of testifying in depositions and at trial resist these efforts if they disagree with the opinions held by the Board members. They understand that it is not the expert’s job to be an advocate for the client – that is the job of the attorneys.

The expert’s function is to independently investigate and formulate opinions based on a disinterested and objective analysis. If the association does not like the opinions of the expert, the association can hire a new expert. The expert is not supposed to tailor the expert’s opinions to the desire of the client, no matter how much the association has paid the expert or how passionately, loudly and forcefully one or more Board members insist upon the correctness of their own, personal opinions.

An expert who buckles under pressure and adopts opinions held by the Board members but which the expert does not really believe and cannot adequately support is opening the association up to disaster at trial or on pre-trial motions.

Many years ago, we represented an association led by a very aggressive and brilliant Board President. He was determined that, as part of a complex construction defect case, we were going to include a multi-million dollar claim for replacement of all of the many miles of “private” roads in the community. The expert hired by the association was an experienced municipal engineer who had testified many times in front of county and municipal Boards and Committees. However, he was inexperienced in serving as an expert in litigation. He had never testified in deposition or at trial. He explained that the experts would need to do core samples of the roads taken in strict conformity with requirements of the NJ Department of Transportation (“DOT”). Those requirements clearly spelled out how many samples had to be taken, in what manner they had to be taken, that a certain percentage of the core samples taken out of the pavement had to be discarded and that other procedures had to be followed. The expert conducted the testing per the DOT requirements. After discarding the requisite number of cores, the result was that only a small portion of the pavement was in need of replacement. The Board President was outraged that the expert’s methodology resulted in a claim worth only about $100,000. Without telling counsel, he called the expert, insinuated the association would withhold payment of fees, bullied and otherwise demanded that the expert ignore the DOT requirement that a certain number of cores be discarded. He wanted all of the cores to be used. In doing so, the results in his expert report were skewed so that it appeared that a multi-million dollar replacement of all of the roads was needed. The association’s counsel was unaware of the errors in the expert’s report. Of course, defense experts familiar with DOT testing requirements saw the mistakes that had been made. At a pre-trial hearing, the Judge barred the association’s expert from testifying at trial and struck his opinions as net opinions. The entire road claim was dismissed. The $130,000 in expert fees spent by the association and a substantial amount of attorney’s fees were completely wasted.

The example cited above is an extreme example but it is nevertheless instructive. Whether you are in the transition process and litigation is the farthest thing from your mind, or you are knee deep in litigation, do not hire weak, malleable, “friendly” experts who issue “made as instructed” reports. An expert who will allow the Board to manipulate the expert through brow-beating, withholding of payment of fees or other pressure into issuing opinions the expert does not believe in is doing great harm to your case and should be avoided or fired. You need objective opinions from independent experts who will tell you the truth so that you can make a reasoned business decision about the seriousness of the issues you face and so you can evaluate the return on investment that the association will likely obtain from pursuing the claim through negotiation or, if negotiation fails, litigation.

COPYRIGHT © 2020, STARK & STARK

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About this Author

Donald Brenner, Shareholder, Stark Law, Construction Litigation, Real Estate Lawyer
Shareholder

Donald B. Brenner is a Shareholder and Chair of the firm’s Construction Litigation Group. Mr. Brenner has extensive experience in handling complex construction litigation claims on behalf of community associations, developers and other plaintiffs. 

Mr. Brenner has been involved in handling over 200 construction litigation cases dealing with a wide range of issues including, but not limited to, water penetration through virtually every kind of building cladding material including, but not limited to, exterior insulation and...

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