A recent ruling by the United States District Court for the Southern District of Florida is a good reminder that experts are not only useful in construction litigation, they are often required. This is true even if the dispute concerns the breach of a materials contract, as opposed to a dispute over the actual construction or design of a large-scale, complex project.

Plaintiff Thermoset Corp. was hired to install a roof system at an international airport in Nassau, Bahamas. Thermoset purchased roofing materials for the project from defendants Building Materials Corp. of America and Roofing Supply Group Orlando LLC. Shortly after Thermoset installed the roof system, portions of the roof’s outer membrane became detached. Consequently, Thermoset was forced to repair and replace large portions of the roof at significant cost.

Thermoset filed suit against the suppliers, alleging a variety of warranty and tort claims on the basis that the suppliers’products were defective or otherwise failed to perform in accordance with various warranties. Thermoset did not present any expert testimony in support of its claims. At the close of discovery, the suppliers filed a motion for summary judgment on all claims arguing that Thermoset’s failure to present expert testimony was fatal to each claim. Specifically, the suppliers argued that the issue of whether the roofing material was defective and the issue of whether the roofing material caused the alleged damages were both too complex to be decided by a jury without the aid of expert testimony. The court agreed and granted the suppliers’ motion for summary judgment on all claims.

The court explained that although expert testimony is not necessary if “jurors are as capable of understanding and drawing correct conclusions from the facts as an expert witness,” expert testimony is necessary when “the technical and scientific aspects of the case would result in the jury’s inability to comprehend the issues.” In this case, the court believed that the issues (whether the reformulation of an adhesive product adversely affected performance of the product and whether use of the adhesive product after its expiration date caused the alleged damages) were sufficiently complex to require expert testimony.

The court held that a determination of whether the product was defective, and if so, whether the product caused the alleged damages, required substantial technical and scientific knowledge that an average lay juror would not have. Thus, it was Thermoset’s obligation to “bridge these gaps in the jury’s understanding with expert testimony.” The court explained that by not offering expert testimony, Thermoset “is as a matter of law without the tools to lead the jury to the conclusion that its harms resulted from defects” in the roofing materials.

While there is no bright-line rule for determining when expert testimony must be produced, it is always best to offer expert testimony if an average juror could not reasonably infer a fact essential to a party’s claim or defense without assistance from an expert.

Thermoset Corp. f/k/a Thermoset Roofing Corp. v. Building Materials Corp. of America et al., Case No. 14-60268-CIV- Cohn/Seltzer, Document 166 (S.D. Fla. April 9, 2015)