Construction Experts and Res Ipsa Loquitor: Bridging the Evidentiary Gap

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1 EVIDENCE AND EXPERTS Construction Experts and Res Ipsa Loquitor: Bridging the Evidentiary Gap By Jeffrey P. Aiken There has been scant authority on when expert testimony 1 is required to establish a prima facie case for breach of a construction contract. The general rule in civil litigation has been that expert opinion evidence is required, as opposed to simply permissible, whenever the subject matter is beyond the common knowledge or ordinary comprehension of Jeffrey P. Aiken lay jurors. Most often this involves unusually complex or esoteric issues, such as those encountered in professional malpractice claims against architects, engineers, and the like. It is obvious that expert opinion evidence is essential whenever the jury would otherwise be left to speculate such as employing abstract or theoretical probabilities. 2 However, that does little to address the particular question of when expert opinion evidence is required, desired, or precluded in particular situations. Indeed, at the opposite end of the spectrum, the doctrine of res ipsa loquitur may apply to obviate the plaintiff s burden of proving a negligent act on the part of the party that controlled the instrumentality of the plaintiff s losses, much less establishing liability through expert testimony. This article explores the continuum of when expert testimony is prohibited (or unnecessary), permissible, or required for construction claims. Most cases focus only on the alternatives of either requiring or not requiring, or permitting or not permitting, expert opinion evidence to support a claim or issue. 3 By looking at these three situations from a distance, the water gets rather murky. As one court observed: [w]hile it is often difficult to draw the line between logical inferences [which a jury is permitted to make] and speculation, it nevertheless must be drawn. 4 The central factor in answering each of these questions depends on the degree of complexity involved in the required analysis of a factual issue in relation to the ordinary experience and comprehension of lay jurors. 5 Viewed in this fashion, general conclusions can be reached as follows: expert evidence should be precluded when there is no complexity involved 6 such that the jury can decide the matter based on its own well-founded knowledge, 7 experience, and comprehension (including logical inferences from Jeffrey P. Aiken is the senior member of Whyte Hirschboeck Dudek S.C. s Construction Practice Group in Wisconsin, where he focuses on construction litigation, arbitration, and mediation (both as a neutral and party representative). the facts presented or those within the realm of common knowledge 8 ) as competently as a purported expert. Expert testimony should be permitted when there is some complexity subject to resolution through analysis and reasonable inferences the jury may draw from the evidence 9 without the need for expert testimony, but for which an expert is of assistance due to the expert s more detailed and experienced knowledge of the subject in question. Finally, such opinions should be required when the complexity is such that the matter cannot be resolved to a reasonable certainty 10 by a jury s own logical inferences and other analysis without engaging in pure speculation. In other words, the character and context of the evidence will be controlling factors. Although construction disputes are frequently resolved through the use of experts, there is a paucity of authority in published construction decisions concerning the necessity or permissibility of expert testimony generally. Accordingly, the analysis below borrows from other areas of the law as a means of establishing the general rules set forth above. The Expert Admissibility Continuum Generally speaking, an expert is used because [t]he expert has something different to contribute. This is a power to draw inferences from the facts which a jury would not be competent to draw.... the inference must be so distinctively related to some science, profession, business or occupation as to be beyond the ken of the average layman. 11 Expert testimony is the testimony of persons who are particularly skilled, learned, or experienced in a particular art, science, trade, business, profession or vocation, a thorough knowledge of which is not possessed by the public in general. 12 It is almost universally recognized that [i]f the court or jury is able to draw its own conclusions without assistance of expert opinion, admission of such testimony is not only unnecessary but improper. 13 In fact, it has been said that [t]he fact that the expert witness may know more of the subject and better comprehend and appreciate it than the jury is not sufficient to warrant the introduction of his testimony. 14 As summarized by one court, [t]he general rule permits a witness who is experienced in technical matters and qualified to do so, to give his opinion in a matter which is not one of common knowledge, although it involves an ultimate fact to be finally decided by the jury. 15 If the jury is competent on its own to resolve an issue, such as reducing gross future loss to present value without the aid of an expert so that actuarial or mathematical expert testimony is not a thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. 1

2 prerequisite, the better practice is to present the jury with such expert evidence as an aid to its analysis. 16 Such a permissible expert opinion, however, even if uncontroverted, does not mean the jury is required to adopt it. 17 To distinguish between cases where opinion evidence is optional versus mandatory, the former should be available where (i) there is complexity subject to resolution through analysis and reasonable inferences the jury might draw from the evidence without the need for an expert (i.e., within the jury s competence), but (ii) such evidence would be of assistance due to the expert s more detailed and experienced knowledge of the subject in question. Thus, expert testimony is generally required when the matter is beyond the knowledge, comprehension, and experience of a layperson, involving unusually complex or esoteric issues. 18 The most common situation where such evidence is essential is in the professional malpractice area where the design professional can be sued in either tort or contract. It is generally recognized that to establish a claim for breach of such a design contract, expert testimony is necessary to establish negligence of that professional 19 absent obvious situations where res ipsa loquitur could apply or only common knowledge and experience to judge the matter are required. In short, the jury cannot draw logical inferences to a reasonably certain conclusion that such a professional breached his contracted obligation merely from a bad result based on the jurors ordinary experience and knowledge. One reason for adopting such a position is that there is an inescapable possibility of error which inheres in such services. 20 It seems logical that the same rationale should apply to establishing the performance standard for any occupation or endeavor, regardless of one s technical standing as a professional for tort purposes, where the standard is not otherwise clearly evident to an ordinary lay juror. 21 Generally speaking, the performance standard for virtually any construction or other service contract is that the services will be rendered in a workmanlike manner. 22 It is commonly recognized that expert testimony is required to establish what is or is not a workmanlike performance if not otherwise patently obvious using a jury s ordinary knowledge and experience. 23 Proof of what is workmanlike is no different from proof of custom, practice, and usage in the trade or industry. The need for expert opinion evidence on contract damage causation should be handled in the same manner as it is in tort cases, such as those involving future medical expenses or future pain and suffering. 24 In other words, if a causation finding would involve speculation as opposed to merely drawing a reasonably certain inference, an expert opinion should be needed. Whether a particular type of damage was a probable, as opposed to merely a possible, result of the breach as of the time of entering the contract (so as to satisfy the foreseeability requirement for contract damages) 25 may require expert testimony as well. Federal Court Standards Under Federal Rule of Evidence 702, if scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion if the testimony is the product of reliable principles and methods 26 a requirement not found in some states rules of evidence. 27 The trial judge is to make a preliminary assessment of whether the reasoning or methodology underlying the [expert s] testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue. 28 If not, the opinion evidence is not relevant and is not admissible. 29 Although the facts an expert relies upon do not have to be admissible, they must be of a type reasonably relied upon by experts in the particular field in forming opinions. 30 Consequently, before receiving expert testimony, a federal court is to consider a range of factors in determining reliability and relevance depending on the nature of the issue. 31 It is obvious that expert opinion evidence is essential whenever the jury would otherwise be left to speculate such as employing abstract or theoretical probabilities. Rejection of proffered expert testimony in federal court is supposed to be the exception rather than the rule. 32 However, the differences between federal expert standards requiring reliability in addition to relevance, and state standards that only focus on the latter, should be considered. For example, even assuming these federal opinion criteria are merely illustrative and not exclusive as to admissibility, 33 one might consider it difficult to craft a thorough reliability test in fields lacking a coherent body of promulgated industry materials. Although gaining expertise through practical industry experience outside of traditional scientific fields may, at first blush, be difficult to reconcile with the Daubert 34 reliability criteria (which are to apply not only to scientific testimony, but to all expert testimony), 35 the Supreme Court has substantially broadened the permissible considerations for federal case experts with such expertise. This was accomplished in an example of how reliability might be established to qualify a perfume tester. 36 Viewed in this fashion, one might justifiably conclude that federal and state standards are not all that different despite the inclusion of a reliability factor in Rule 702. Burden of Proof for a Prima Facie Case Whether an expert opinion is required is essentially a question of whether a party can establish a prima facie case without the use of expert testimony. It is basic hornbook law that a claimant has the burden of proof to establish a thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. 2

3 prima facie case. A prima facie case in civil matters must be established by a preponderance of the evidence and has been characterized as one established only when evidentiary facts are stated which if they remain uncontradicted... resolve all factual issues in [a]... party s favor. 37 Although burden of proof is oftentimes characterized as including both a burden of production and a burden of persuasion, the initial focus for purposes of establishing a prima facie case is on the burden of production. 38 Rejection of proffered expert testimony in federal court is supposed to be the exception rather than the rule. A party can be required to aver and prove negative allegations, especially when the allegation is an essential part of the party s claim. For example,... a party alleging failure to perform has the burden of proof. 39 There is no question that a defendant bears the burden of proving affirmative defenses, 40 including excuses for nonperformance 41 or failure to satisfy conditions for performance. 42 However, various cases have held that a claimant has the burden of proof of excluding other potential causes from consideration where multiple causes may have contributed to a result. 43 This oftentimes occurs in construction cases where there are claims of cost overruns and the claimant attempts to prove its claim under what is called a total cost method, which, in effect, avoids the need for a claimant to allocate causation to particular damages. When multiple causes contribute to a project overrun, the total cost approach is disfavored 44 because there is not a basis for even an educated guess as to the increased costs suffered by plaintiffs due to that particular breach or breaches [by the defendant] as distinguished from those causes from which defendant is contractually exempt from responding in damages. 45 Some courts use a four-part test for use of the total cost method, the last element of which is proof by the claimant that it was not responsible for the added costs. 46 Thus, it has been held that [i]n complex situations that may involve multiple [parties], the plaintiff must prove not only that he or she was not liable for the extra cost in this situation but that the defendant was responsible. 47 In short, a claimant is required to bear the allocation burden when there are shared or interdependent performance obligations. Even though it would be relatively easy to conceptually transfer the burden of production on the issue of breach by nonperformance or deficient performance to a defendant by characterizing it as a matter of defense, rather than a burden for the claimant, such an approach sidesteps the threshold question of whether the claimant has satisfied its burden to establish a prima facie case in the first place. Transferring the burden to a defendant to prove the absence of nonperformance, in addition to its existing burden of proving any excuse for nonperformance, seems unjustified except in unusual circumstances such as the defendant never showing up to perform at all or liquidated damages being at issue. 48 Federal pleading standards under the rules are substantially equivalent to those under state law: namely, a short and plain statement showing that the pleader is entitled to relief. 49 Recently, this standard was clarified by the Supreme Court to mean the pleading must contain sufficient factual allegations to permit the court to find that the claim is facially plausible, including the ability to reasonably infer that the opponent is liable. 50 In addition, the court has since held that a complaint must stand on its own at the pleading stage, and inadequately pled allegations may not survive pending discovery. 51 The potential problem this creates is that oftentimes the information needed for scheduling experts to work their magic will depend on results of discovery, so the proverbial chicken-and-egg problem arises. Typically, the more lax pleading requirements in state court would not present such a problem because following the filing of a notice pleading, the claimant is virtually free to kick off the discovery needed to serve as the foundation for an expert opinion. Only if challenged on a motion for summary judgment would state court litigants potentially need an expert s opinion in place before they would have to establish a prima facie case from an evidentiary point of view. If the more stringent federal pleading standards are followed, it may result in early dismissal of claims dependent upon expert opinion evidence that can only be obtained through discovery to establish breach, causation, or damages. Defendants may, therefore, gain some procedural advantage in federal court, where the court may insist on more exacting pleadings. However, federal (and many state) rules require that the attorney signing the pleading verify by her execution of the pleading that the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; [and]... the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery This latter provision may provide an escape route from dismissal at the pleading stage. In other words, if expert opinion evidence is required to establish a prima facie case, a claimant that cannot plead the existence of such an opinion in its complaint should consider identifying explicitly what discovery will uncover that will be relied upon in a forthcoming expert opinion and what that opinion will entail. This affects, as well, the scope of a prefiling investigation. Application of Res Ipsa Loquitur To this point, we have addressed the requirement of expert testimony to establish a prima facie case in construction litigation. Are there circumstances in which the occurrence of thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. 3

4 construction-related damages in an otherwise complex evidentiary setting may obviate expert testimony? The answer is yes, if the doctrine of res ipsa loquitor can be invoked. In short, the doctrine may be used to fill an evidentiary gap when proof of a construction claim might appear to require expert testimony, but the circumstances of the claim are such that direct evidence to allow formation of an expert opinion is not available or unnecessary. The basic concept of res ipsa loquitur is that the result (i.e., injury or damage) would not occur if one with exclusive management and control of an instrumentality uses it properly. 53 It is not a principle of substantive law but of evidence, 54 allowing fact finders to draw certain permissible inferences based on either their own common knowledge or information provided by an expert. 55 These inferences include that a party breached its legal obligation in performing an identified activity; 56 and that such breach was the cause of the damage or injury (i.e., the result). 57 Generally speaking, a claimant cannot rely upon the principle when the facts surrounding the event (such as an accident) are known or reasonably available because, in such instances, there is nothing left for an inference. 58 In other words, it is not to be invoked to overcome evidence, but to be applied in its absence, 59 although this is far from a widespread proposition. The possibility of the event happening from an act of God, for example, or some other cause such that more than one reasonable inference is permissible, most often precludes its application 60 unless additional evidence is adduced to eliminate the causal connection to such other possible causes. 61 Sometimes, courts and commentators have couched the discussion in terms of probabilities, not reasonable possibilities, 62 although this would seem to be a distinction without much of a difference. The traditional two requirements are exclusive management and control of the instrumentality being vested in the defendant, and the damage would not have occurred in the ordinary course of things if the instrumentality was used with proper care. 63 In addition, some states add further requirements such as the absence of explanation by the alleged wrongdoer 64 (although this would not seem to be a requirement for purposes of establishing a prima facie case), the absence of fault on the injured party, 65 or the defendant has superior knowledge or means of information as to the cause, 66 which is akin to one of the factors for assigning the initial burden of proof. In fact, these latter two elements have been combined with the two traditional requirements as a prerequisite for use of res ipsa in any case. 67 At least one other court has required the duty to be one of the highest degree of care before res ipsa could be used. 68 Because res ipsa is a principle of evidence and has been characterized as nothing more than a commonsense appraisal of the probative value of circumstantial evidence, 69 it should be equally applicable to construction claims 70 as a matter of basic jurisprudence. 71 Notwithstanding statements suggesting the doctrine was developed solely as an exception, or perhaps more accurately a qualification, of the general rule that negligence is not to be presumed but must be affirmatively proved, 72 there is no reason for res ipsa not to be applicable to construction contract claims. Res ipsa has already been extended outside pure negligence and professional malpractice cases, including strict liability cases, 73 criminal cases, 74 and admiralty cases involving tug-tow contracts. 75 The same rationale can certainly be applied to any breach of contract claim because it too must be affirmatively proven, including proof of the other party s failure to have satisfied its contractual obligation. 76 Some commentators have even referred to a contractual res ipsa 77 or contract damage equivalent. 78 Litigants have occasionally advanced what has been called a res ipsa loquitur-like theory of contract liability 79 or arguments of similar import. 80 Without necessarily engaging in a detailed analysis of res ipsa as an evidentiary inference or presumption, federal courts have nevertheless applied res ipsa in a wide range of other cases, from state secret 81 and excessive force claims under section 1983, 82 to immigration appeals 83 and usury cases. 84 Are there circumstances in which the occurrence of an accident in an otherwise complex evidentiary setting may obviate expert testimony? Extension of res ipsa into contract claims is understandable in light of the nearly pervasive treatment by the courts of an unintentional breach of contract as negligence 85 when, more accurately, contract breaches should be classified either as intentional 86 or unintentional. Negligence is most often understood to be a tort arising from a common law obligation of due care independent of any contractual obligation. 87 Such a common law duty may flow from a contractual undertaking as in cases of personal injury or damage to property other than the subject of the contracted work. 88 But the unintentional breach of contract does not necessarily constitute an act of negligence unless, of course, negligence is redefined to mean a failure to exercise the same degree of skill and care in the performance of a contractual obligation that an ordinary prudent contractor would exercise under the same or similar circumstances (i.e., taking into account the industry custom and practice pertinent to performance of the contractually specified work and materials). Yet so far no court has apparently framed its negligence characterization of an unintentional breach in this fashion. Despite the judicial development of the economic loss doctrine 89 to limit the intrusion of tort into contract law, there are other reasons for avoiding characterization of an unintentional breach as negligence. Foreseeability at the time of contracting is a potential defense to a contract damage thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. 4

5 claim, whereas foreseeability in traditional negligence cases is at the time of the act or omission. In addition, the scope of available damages is much broader in tort negligence cases, specifically the possibility of punitive damages and the possibility of a different causation requirement. Because parties are entitled to intentionally breach their contracts without exposure to punitive damages 90 while retaining a foreseeability defense to various items of damage, there is no reason why an unintentional breach should not be on the same footing. If negligence is not redefined for application to contract claims as suggested above, then a problem arises when the performance standard is below or above the customary practice in the industry. Absent specification of a standard in the contract, 91 customary practice would apply as the standard for a contractor s performance. 92 Certainly, a claimant asserting an unintentional breach of contract should not be required to prove a failure to abide by standard practices when the contractual standard is less, nor should proof of variance from standard practice establish breach of a much higher specified performance standard. Negligence is most often understood to be a tort arising from a common law obligation of due care independent of any contractual obligation. If a claimant can show that the contractual performance was solely within the management and control of the other party, and that the result would not have occurred had there not been a breach of the contractual obligation (such that there is only one reasonable inference to be drawn), then the claimant should be able to establish a prima facie case of both breach and damage causation by proving the result or lack of result. 93 However, the converse also should be true. If there is more than one reasonable inference to be drawn from the result as to its cause, such as the claimant s contribution to the result due to shared performance obligations, then the claimant should be required to do more than merely point to the result to establish its prima facie case. This is precisely what courts have done when confronted with interdependent performance obligations in situations that are very analogous to construction claims. Specifically, res ipsa has been rejected as a means of proving breach and causation in a contract setting due to lack of exclusivity over what would be the instrumentality in the tort vernacular. 94 In other words, one cannot look to the result for purposes of establishing a breach of contract or damage causation when both parties are involved in performing the overall project. In those situations, expert testimony is required to establish at least the predicate facts. 95 This is because it is equally possible both parties caused or contributed to the project deficiency and financial loss, or the claimant alone may have done so through its own voluntary act. 96 Consequently, the absence of expert opinion evidence should be fatal to a prima facie case under such circumstances. The very function of the economic loss doctrine in some states is to insist that a party to a contract that includes a standard of care rely on that standard (and not a tort standard) to establish its claim. 97 Where the contract standard is effectively no different from a tort standard, there is no reason res ipsa loquitor should not be applicable. Res Ipsa Implications for Construction Cases There are essentially two main causes for construction claims, aside from payment default: first, the project is delayed, impacting an owner or contractor; and, second, the project contains deficiencies of one kind or another. Res ipsa has application to both. In many delay cases, it is common to engage forensic scheduling experts to unravel the sequence of who was supposed to do what and when, and what, if any, damage resulted from a particular activity or project disruption, taking into account such concepts as critical path, float, and causation (e.g., windows) analysis subjects far beyond the purview of laypeople. 98 In situations involving a traditional design-bid-build project where the owner s architect is supplying the design documents, it seems that an expert would be required to establish a prima facie case in all but the most simple of delay damage claims by an owner or contractor. Again, the controlling concept is whether the jury can draw reasonable inferences without the aid of an expert. If an expert would be helpful, but not essential, then use of a forensic expert is permissive and not essential for a prima facie case. If, on the other hand, a design-build contract is involved, then the design-contractor would be in sole control of the instrumentality (i.e., project), and an owner should be able to rely on res ipsa to establish a prima facie breach if there is a time-of-the-essence clause in the contract. 99 If not, then a forensic expert would be needed to establish a reasonable time for completion 100 unless such time is clear from the circumstances. Yet, merely establishing breach via res ipsa does not necessarily absolve an owner of the need for an expert on damages even when time is of the essence. Obviously, if liquidated damages are in issue, there should be little need for an expert on damage causation. The same may be true as well for direct damages such as loss of revenue from a delayed project again, depending on the complexity of the causation analysis required to reach reasonable certainty in that conclusion. If an owner or contractor proffers an expert on a subject in an effort to overtry liability in hopes of influencing the damage award, a motion in limine to bar such testimony may be available on the ground that such an expert opinion is unnecessary. Success of such a motion will depend on whether the evidence is readily comprehensible to the jury thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. 5

6 without an expert opinion, so that opinion evidence would invade the province of the jury as the finder of facts. Even though a jury is not required to follow an expert s opinion, 101 an owner-claimant is forced from a practical point of view to engage its own expert. Otherwise, it runs the risk that the court may find the lack of an owner-expert to be fatal, should it be determined that the matter is overly complex for a jury. For smaller damage claims, this may obviously be a prohibitive burden for an owner from a monetary perspective. In such situations, the owner s counsel would be well advised to pursue relief from this burden of production by asserting that the contractor possesses the ease and access to proof much more so than the owner, so as to transfer this burden to the contractor. 102 When it comes to fast-track projects of one form or another, the principles underlying res ipsa would dictate the need for a forensic expert in all but the most simple of cases. The reason should be obvious for both breach and causation determinations. A jury, using ordinary experience, is clearly unable to decipher the scheduling impacts of various acts or omissions on such basic determinations as to whether they were on a critical path or within float. Similarly, without expertise in scheduling analysis, a jury could not determine with reasonable certainty what acts or omissions caused what delay damages. Insofar as delay damage causation is concerned, unless readily apparent to or comprehensible by a layperson, an expert s opinion should be required in any situation where such an opinion is required to establish a breach. This would be true for nonliquidated damages arising from a project with joint owner-contractor performance: namely, designbid-build and fast-track projects. When it comes to defect claims, the need for expert testimony will depend to a large degree on the contract structure. First of all, expert opinion evidence may be required to establish the contractual performance standard, such as when an owner acts as its own general contractor employing trades directly, or when a general contractor asserts claims against its subcontractors for deficient performance. As before, the general rule is that expert testimony is required, unless, of course, the breach of industry standard practices is obvious to jurors using their own normal experience. Unlike the forensic scheduling expert, however, this would be an expert in the particular trade who would need to establish that standard. If the defect is susceptible to either a design or construction deficiency, as is commonly the case, then an owner would not be able to rely on res ipsa to establish breach unless it has an expert opinion on sufficiency of the design; thus, the only remaining inference would be breach of the construction contract for prima facie case purposes. This would be true for a design-bid-build or a fast-track project. On the other hand, if a design-build contract is in issue, res ipsa should be available to establish the breach element of an owner s claim. It also might satisfy the damage causation element, although a contractor may claim that an expert opinion is needed by the owner to satisfy the foreseeability requirement for recovery of a particular category of damages at the time of breach. In situations where only one party is performing the construction activity and is doing so on a time-and-material basis, expert testimony should be required to establish a prima facie case, if the result is not subject to a contractual warranty 103 or otherwise readily comprehensible to the jury. If the activity does not achieve the desired result within any particular time, an expert should be necessary to prove that the activity performed varied from standard practice and caused the damages being claimed. If the result was either late or incomplete at the conclusion of the performance, an expert also should be necessary to establish what a reasonable time would have been for the performance, absent, of course, a time-of-the-essence clause in the contract. Similarly, if the claim involves an assertion that the contractor was inefficient in its performance, thereby unnecessarily increasing the time or cost of the project, the nature of the services should require expert testimony on variance from standard practice and damage causation. If an expert would be helpful, but not essential, then use of a forensic expert is permissive and not essential for a prima facie case. Protecting Client Rights Construction cases present complex fact patterns in which issues of causation and damage often require the use of expert testimony. The extension of res ipsa to construction claims can be a valuable aid in both assertion and defense of construction claims by owners and contractors alike. Failure to take this established evidentiary principle into consideration in deciding whether expert opinion evidence is permissible or essential could jeopardize client rights and adversely impact the cost of construction claim prosecution and defense as well. Counsel would therefore be well advised to thoroughly assess not only the need for expert opinion evidence but to assess the potential use of res ipsa loquitor as well. Endnotes 1. As used throughout this article, the terms expert opinion evidence, expert testimony, and opinion evidence should be deemed synonymous Am. Jur. 2d Evidence 182 (2008): a party cannot satisfy its burden of production with evidence that supports only an abstract or theoretical probability, or evidence that would require the jury to engage in speculation or conjecture (citing Guenther v. Armstrong Rubber Co., 406 F.2d 1315 (3d Cir 1969); S. Burlington Sch. Dist. v. Calcagni-Frazier-Zajchowski Architects, Inc., 138 Vt. 33, 40, 410 A.2d 1359, 1362 (1980) ( Evidence which gives rise to a determination based on mere conjecture, surmise or suspicion, thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. 6

7 is an insufficient foundation for a verdict. (authority cited). ); see also Holsen v. Heritage Mut. Ins. Co., 182 Wis. 2d 457, 465, 513 N.W.2d 690 (Ct. App.), rev. granted, decision vacated on other grounds, 185 Wis. 2d 1, 517 N.W.2d 448 (1994) (internal citations omitted): [A] jury unguided by expertise beyond the ken of their mutual life experiences would have no basis, other than speculation, to decide the complex issues of causation here; there would be nothing upon which the jury could base a reasoned choice between the two possible inferences. Jury awards may not be based on speculation. 3. See S. Burlington Sch. Dist., 138 Vt. 33 (dealing with the need for expert testimony to establish the standard of care of a roof designer and another s breach of the obligation to adequately supervise construction). 4. Id. at Treatment of the exclusion of expert testimony on pure relevancy grounds is beyond the scope of this article. 6. Burandt v. Clarke, 274 Or. 521, 547 P.2d 89 (1976) ( As defendants concede, medical testimony of causation between collision and injury is not essential if there is an uncomplicated situation. ). 7. See Merrill v. Univ. of Vt., 133 Vt. 101, 329 A.2d 635 (1974) (quoting from Burton v. Holden & Martin, 112 Vt. 17, 19, 20 A.2d 99 (1941), as follows: where, as here, the physical processes terminating in death are obscure and abstruse, and concerning which a layman can have no well founded knowledge and can do no more than indulge in mere speculation, there is no proper foundation for a finding by the trier without expert medical testimony ) (emphasis added). 8. Keel v. St. Elizabeth Med. Ctr., 842 S.W.2d 860, 862 (Ky. 1992). 9. S. Burlington Sch. Dist. v. Calcagni-Frazier-Zajchowski Architects, Inc., 138 Vt. 33, 43, 410 A.2d 1359 (1980): A jury is competent to draw logical inferences from facts within their knowledge. 10. See Mainor v. K-Mart Corp., 79 N.C. App. 414, 339 S.E.2d 476 (1986) (holding an expert is needed to testify that the plaintiff, with reasonable certainty, may be expected to experience future pain and suffering as a result of a proven injury ); Wunderlich Contracting Co. v. United States, 351 F.2d 956, 968 (Ct. Cl. 1965) ( It was plaintiffs obligation in the case at bar to prove with reasonable certainty the extent of unreasonable delay which resulted from defendant s actions and to provide a basis for making a reasonably correct approximation of the damages which arose therefrom. ). 11. IHC Hosps. v. Bd. of Comm rs, 108 Idaho 136, , 697 P.2d 1150 (1985) (emphasis added); see also First Nat l Bank v. Sousanes, 96 Ill. App. 3d 1047, 1054, 422 N.E.2d 188 (1981) ( related to a science, profession, business or occupation ); Mindombe v. United States, 795 A.2d 39, 42 n.6 (D.C. 2002); Nesmith v. Walsh Trucking Co., 247 N.J. Super. 360, 369, 589 A.2d 613 (App. Div. 1989) (citations omitted), rev d on other grounds, 123 N.J. 547, 548, 589 A.2d 596 (1991). 12. IHC Hosps., 108 Idaho at 143 (quoting with approval George M. Bell, Handbook of Evidence for the Idaho Lawyer (2d ed. 1972)). 13. Valiga v. Nat l Food Co., 58 Wis. 2d 232, 251, 206 N.W.2d 377 (1973); Anderson v. Eggert, 234 Wis. 348, 361, 291 N.W. 365 (1940) ( Whether the testimony was properly received in this case depends upon whether the members of the jury having that knowledge and general experience common to every member of the community would be aided in a consideration of the issues by the testimony offered and received. ). See also State v. Blair, 164 Wis. 2d 64, 75, 473 N.W.2d 566 (Ct. App. 1991) (expert testimony is admissible only when the issue to be decided requires an analysis that would be difficult for the ordinary person in the community ). 14. Kreklow v. Miller, 37 Wis. 2d 12, 22, 154 N.W.2d 243, 248 (1967), citing Henry Wade Rogers, Law of Expert Testimony 36, at 51 (3d ed. 1941)); see also K-Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex. 2000); Nesmith v. Walsh Trucking Co., 247 N.J. Super. 360, 369, 589 A.2d 613 (App. Div. 1989); Nolop v. Skemp, 7 Wis. 2d 462, 96 N.W.2d 826 (1959); Kujawski v. Arbor View Health Care Ctr., 139 Wis. 2d 455, 407 N.W.2d 249 (1987); Bruss v. Milwaukee Sporting Goods Co., 34 Wis. 2d 688, 150 N.W.2d 337 (1967). 15. Bridger v. Union Ry. Co., 355 F.2d 382, 389 (6th Cir. 1966). 16. Jahanshahi v. Centura Dev. Co., 2003 Pa. Super 43, 816 A.2d 1179, 1184 (Pa. Super. 2003) ( [L]ost profits from a new business may be established with reasonable certainty with the aid of expert testimony... quoting Restatement (Second) of Contracts 352, Comment b). Thus, while expert testimony might well aid the fact finder, it is not required. ); Bonura v. Sea Land Serv., Inc., 505 F.2d 665, 669 (5th Cir. 1974) (in holding expert testimony is not a prerequisite, the court stated: Believing as we do in the ability of the modern American jury, we align ourselves with the majority of the circuits which have spoken on this question. We hasten to note, however, that we believe that it is decidedly the better practice to present the jury with either expert mathematical testimony or actuarial tables to aid it in its task of reducing gross future lost earnings to their present value. ). 17. City of Keller v. Wilson, 168 S.W.3d 802, 820 (Tex. 2005) ( Even uncontroverted expert testimony does not bind jurors unless the subject matter is one for experts alone. ). 18. Such a requirement has been characterized as representing an extraordinary step. Weiss v. United Fire & Cas., 197 Wis. 2d 365, 378, 451 N.W.2d 753 (1995); Trinity Lutheran Church v. Dorschner Excavating, Inc., 289 Wis. 2d 252, 710 N.W.2d 680 (2006). 19. Webb v. Lungstrum, 223 Kan. 487, 1 2, 575 P.2d 22 (1978); Micro-Managers v. Gregory, 147 Wis. 2d 500, 513, 434 N.W.2d 97 (Ct. App. 1988) (quoting from La Rossa v. Scientific Design Co., 402 F.2d 937, 943 (3d Cir. 1968) as follows: If the activity of [the defendant] pursuant to its contract... be viewed as the rendering of professional services, then no matter how the basis of liability is described, it amounts to no more than a claim of negligence in failing to perform these services with due care. ). 20. City of Mounds View v. Walijarvi, 263 N.W.2d 420, 424 (Minn. 1978). 21. Lemay v. Burnett, 139 N.H. 633, 634, 660 A.2d 1116 (1995) (this court has held that where scientific issues would be beyond the capacity of men of common experience and knowledge to form a valid judgment by themselves... expert evidence [is] required to assist a jury in its decision (authorities cited) ) ( Expert testimony is required, however, where the subject presented is so distinctly related to some science, profession or occupation as to be beyond the ken of the average layperson. (quoting from Beard v. Goodyear Tire & Rubber Co., 587 A.2d 195, 200 (D.C. 1991))) (emphasis added); IHC Hosps. v. Bd. of Comm rs, 108 Idaho 136, 697 P.2d 1150 (1985). 22. Alco Std. Corp. v. Westinghouse Elec. Corp., 206 Ga. App. 794, 796, 426 S.E.2d 648 (1992) ( a duty is implied in every service, repair or construction contract to perform it skillfully, carefully, diligently, and in a workmanlike manner. ); Peterson v. Highland Crate Co-op., 156 Fla. 539, 541, 23 So. 2d 716 (1945) ( There is an implied obligation on everyone who undertakes to perform a contract that it will be performed in a good, workmanlike manner. ); Roscoe Moss Co. v. Jenkins, 55 Cal. App. 2d 369, 376, 130 P.2d 477 (Ct. App. 1942) ( The provision of the agreement that the work would be done in a good and workmanlike manner added nothing to plaintiff s obligations under the contract. ); Dawn Court Assocs. v. Cristia, 115 Ohio Misc. 2d 54, 59, 761 N.E.2d 705 (2001) ( In every contract for the future performance of construction services, an implied duty is imposed upon an independent contractor to perform services in a workmanlike manner. ); Holden v. Placid Oil Co., 512 F. Supp. 644, 648 (E.D. La. 1981); Waterman S.S. Corp. v. Brady-Hamilton Stevedore Co., 243 F. Supp. 298 (D. Or. 1965); Board of Educ. v. Del Bianco & Assocs., Inc., 57 Ill. App. 3d 302, 308, 372 N.E.2d 953 (Ct. App. 1978); Gosselin v. Better Homes, Inc., 256 A.2d 629, 639 (Me. 1969); Maville v. Donaghue, thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. 7

8 193 Misc. 11, 82 N.Y.S.2d 621 (1948); McCelland-Gentry Motor Co. v. Meyer, 94 Okla. 282, 285, 222 P. 261 (1923); Flintkote Co. v. Dravo Corp., 678 F.2d 942, 948 (11th Cir. 1982); Maloney Tank Mfg. Co. v. Mid-Continent Petroleum Corp., 49 F.2d 146, 149 (10th Cir. 1931); Kubby v. Crescent Steel, 105 Ariz. 459, 460, 466 P.2d 753, 754 (1970). 23. Riverfront Lofts Condo. Owners Ass n v. Milwaukee/ Riverfront Props. L.P., 236 F. Supp. 2d 918, 936 (E.D. Wis. 2002) ( Generally, expert testimony is needed to determine whether a manner of construction meets with industry standards and is, thus, workmanlike. See Herkert v. Stauber, 106 Wis. 2d 545, 570 (1982). However, when an issue can be resolved by common sense, no such testimony is needed. Id. ); Dawn Court Assocs. v. Cristia, 115 Ohio Misc. 2d 43, 60, 62, 761 N.E.2d 705 (2201) ( An expert witness is needed to establish that building repairs were not done in a workmanlike manner. Evid. R An expert witness is needed because people who are not trained or experienced in construction cannot know whether repairs to a building were done in a workmanlike manner. The expert must testify that it is more probable than not that the building repairs that are the subject of the lawsuit were not done in a workmanlike manner, and that this failure caused the damages sustained by the plaintiff. ) ( This court holds that it is necessary to establish by expert opinion testimony that a contractor failed to perform in a workmanlike manner. ). 24. City of Cedarburg Light & Water Comm n v. Allis-Chalmers Mfg. Co., 33 Wis. 2d 560, 568, 148 N.W.2d 13 (1967) ( We have applied a related concept in holding that expert testimony is essential to establish an injured person s future medical expenses as well as his future pain and suffering.). 25. See Restatement of Contracts 330 (1932); Arctic Contractors, Inc. v. State, 564 P.2d 30, 45 (Alaska 1977); Richmond v. Cretens, 175 Wis. 297, 185 N.W. 247 (1921). 26. Fed. R. Evid. 702 (2009). 27. See Wis. Stat ( ). 28. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, (1993). See also Kuhmo Tire Co. v. Carmichael, 526 U.S. 137 (1999) (applying Daubert to testimony of experts who are not scientists and finding that the trial court s gatekeeping obligation applies to testimony based on technical or other specialized knowledge.). 29. Fed. R. Evid. 402 (2009). 30. Fed. R. Evid. 703 (2009). 31. These include: 1. whether the theory or technique has been tested; 2. whether the theory or technique has been subjected to peer review and publication; 3. the known or potential rate of error for the theory or technique; 4. whether the theory or technique has been generally accepted in the particular field or relevant expert community; and 5. whether the probative value of the proposed testimony is substantially outweighed by the dangers of unfair prejudice. Daubert, 509 U.S. at ; Kuhmo Tire, 526 U.S. at Amendments to Rule 702, advisory comm. notes. 33. Kumho Tire, 526 U.S. at ( list of factors was meant to be helpful, not definitive ). 34. See generally Bruce Gerhardt, The Design Professional s Standard of Care After Kumho Tire: From the Expert With an Opinion to Expert Opinion, 28 Constr. Law., Fall 2008, for a more detailed discussion of the history and status of the U.S. Supreme Court cases concerning the admissibility of expert testimony. 35. Id. at 138, 142, Id. at 151 ( it will at times be useful to ask even of a witness whose expertise is based purely on experience, say, a perfume tester able to distinguish among 140 odors at a sniff, whether his preparation is of a kind that others in the field would recognize as acceptable. ). 37. Beecher v. LIRC, 273 Wis. 2d 136, 682 N.W.2d 29 (2004), citing Walter Kassuba, Inc. v. Bauch, 38 Wis. 2d 648, 158 N.W.2d 387 (1968)) (emphasis added). No cases have been encountered dealing with whether foreseeability is determined solely at the time of initial contract execution versus later on when modifications are entered. 38. Id.; 29 Am. Jur. 2d Evidence 182 (... a party cannot satisfy its burden of production with evidence that supports only an abstract or theoretical probability, or evidence that would require the jury to engage in speculation or conjecture (citing Guenther v. Armstrong Rubber Co., 406 F.2d 1315 (3d Cir 1969))). 39. Acuity Mut. Ins. Co. v. Olivas, 2007 WI 12, 47, 298 Wis. 2d 640, 726 N.W.2d 258; see also Van Sickle v. Hallmark & Assocs., 2008 ND 12, 744 N.W.2d 532, 536 (2008) ( Breach of contract occurs when there is nonperformance of a contractual duty when it is due.... The party claiming there is a breach has the burden of proof. ) (authorities omitted). 40. Pittman v. Lieffring, 59 Wis. 2d 52, 59, 207 N.W.2d 610, 613 (1973). 41. Jacobs v. Tenneco W., 186 Cal. App. 3d 1413, 231 Cal. Rptr. 351 (1986) ( an excuse for nonperformance is an affirmative defense. ) (authority omitted); Lenn v. Riche, 331 Mass. 104, 111, 117 N.E.2d 129 (1953). 42. Stender v. Twin City Foods, 5 Wash. App. 809, 810, 490 P.2d 1311 (1971). 43. This is to be distinguished from concurrent causation in a tort context where the plaintiff need only show that the defendant s conduct was a substantial factor in causing the damage, and the defendant is then required to prove contributory negligence as a defense or bar. See Chief Judge Cardozo s discussion as applied to nuisance claims in McFarlane v. City of Niagara Falls, 247 N.Y. 340, 160 N.E. 391 (1928); Yow v. Henken, 152 Wis. 2d 86, 447 N.W.2d 538 (Ct. App. 1989) ( The cause questions ask whether there was a causal connection between the negligence of any person and the (accident) (injury). These questions do not ask about the cause, but rather a cause. The reason for this is that there may be more than one cause of an (accident) (injury). quoting from Wis. J.I. Civil 1500). 44. Amelco Elec. v. City of Thousand Oaks, 27 Cal. 4th 228, 115 Cal. Rptr. 2d 900, 38 P.3d 1120 (Ct. App. 2002). 45. Lichter v. Mellon-Stuart Co., 305 F.2d 216, 219, 220 (3d Cir. 1962) ( Since the court could find no basis for allocation of this lump sum between those causes which were actionable and those which were not, it was proper to reject the entire claim. Kremer v. United States, 1950, 88 F. Supp. 740, 116 Ct. Cl. 358, J. J. Kelly Co. v. United States 1947, 69 F. Supp. 117, 107 Ct. Cl ). 46. City of Westminster v. Centric-Jones Constructors, 100 P.3d 472 (Colo. 2003). 47. Amelco, 27 Cal. 4th at 246 (authority omitted). 48. Monsen Eng g Co. v. Tami-Githens, Inc., 219 N.J. Super. 241, 530 A.2d 313 (1987) (where contractee established that there was a valid liquidated damage clause, contractor had the burden of proving contractually acceptable excuses for delay because a challenge to a liquidated damage clause is basically an affirmative defense ) citing in support: Wassenaar v. Panos, 111 Wis. 2d 518, 331 N.W.2d 357 (1983); Hous. Auth. v. Forcum-Lannom, Inc., 248 Ark. 750, 454 S.W.2d 101, (1970); L.A. Reynolds Co. v. State Highway Comm n, 271 N.C. 40, 155 S.E.2d 473, (1967); Cent. Steel Drum Co. v. Gold Cooperage Inc., 200 N.J. Super. 251, 265, 491 A.2d 49 (App. Div. 1985)). The defense for the contractor is to show the claimant substantially contributed to delay and thus forfeited the right to recover such damages. See Gen. Ins. Co. of Am. v. Commerce Hyatt House, 5 Cal. App. 3d 460, 472, 85 Cal. Rptr. 317 (1970) (because liquidated damages are not favored in equity, [a]n owner whose acts have contributed substantially to the delayed performance of a construction contract may not recover liquidated damages on the basis of such delay. ). 49. Fed. R. Civ. P. 8(a)(2). 50. Douglas E. Motzenbecker, Supreme Court Raises the Pleadings Bar Again, 35:2 Litig. News., Winter 2010 (discussing Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)). 51. Id. at 11 (discussing Ashcroft v. Iqbal, 129 S. Ct (2009)). thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. 8

9 52. Fed. R. Civ. P. 11(b)(2), (3). 53. Zukowsky v. Brown, 79 Wash. 2d 586, 592, 488 P.2d 269 (1971) ( We are concerned with a phrase born to the law of torts in Byrne v. Boadle, 159 Eng. Rep. 299, 2 H. & C. 722 (1863). Literally translated, the words mean the thing itself speaks, and as first used by courts they meant nothing more than that the particular manner and circumstances of an accident might speak sufficiently to support an inference of negligence by the trier of fact, enabling the injured plaintiff to avoid nonsuit on that issue. Thus, the phrase initially expressed a common-sense recognition of the potential efficacy of circumstantial evidence. Unfortunately, in the generations since the concept was first enshrined in Latin, the phrase has developed an almost impenetrable crust. ) (further quoting from William L. Prosser, Res Ipsa Loquitur in California, 37 Cal. L. Rev. 183 (1949), as follows: From that casual utterance, dignified and magnified by the cloak of the learned tongue, there has grown by a most extraordinary process the doctrine of res ipsa loquitur. It is a thing of fearful and wonderful complexity and ramifications, and the problems of its application and effect have filled the courts of all our states with a multitude of decisions, baffling and perplexing alike to students, attorneys and judges. ); see also Shull v. B.F. Goodrich Co., 477 N.E.2d 924 (Ind. App. 1985); Tamura, Inc. v. Sanyo Elec., Inc., 636 F. Supp. 1065, 1068 (N.D. Ill. 1986) ( it is similar to the indirect method of proof in employment discrimination cases, where a plaintiff may prove unlawful discrimination by eliminating other reasonable explanations for his or her employer s acts ). See generally Chesapeake & Potomac Tel. Co. v. Hicks, 25 Md. App. 503, 514, 337 A.2d 744 (Ct. Spec. App. 1975) (referencing 4 John Henry Wigmore, A Treatise on Evidence 2509, at (1st ed. 1905)). 54. Gray v. BellSouth Telecomm., Inc., 11 So. 3d 1269, (Miss. Ct. App. 2009); Soltz v. Colony Recreation Ctr., 151 Ohio St. 503, 87 N.E.2d 167 (1949); Roberts v. Weber & Sons, Co., 248 Neb. 243, 247, 533 N.W.2d 664 (1995); Marrero v. Goldsmith, 486 So. 2d 530, 531 (Fla. 1986) 55. Cleary v. Manning, 884 N.E.2d 335, 338 (Ind. Ct. App. 2008); Horner v. N. Pac. Beneficial Ass n Hosps., Inc., 62 Wash. 2d 351, 382 P.2d 518 (1963); Tucker v. Univ. Specialty Hosp., 166 Md. App. 50, 62, 887 A.2d 74 (Ct. Spec. App. 2005) (characterizing the use of expert testimony to establish the predicates as quasi-res ipsa loquitur in that the expert testifies to the probability the injury was caused by the failure to exercise due care, citing Dover Elevator Co. v. Swann, 334 Md. 231, 254, 638 A.2d 762 (1994)). 56. Shields v. United Gas Pipe Line Co., 110 So. 2d 881, 884 (La. Ct. App. 1959) ( [T]here is no inference as to what act produced the injury, and no foundation is laid for the application of the doctrine where the physical act or the thing which caused the injury is unknown or is not disclosed or identified. 65 C.J.S. Negligence 220(8), sub-section (b). ). 57. Id. at 884 ( the thing which speaks is the unusual factor within the causal chain ); Cleary, 884 N.E.2d at 335; Swierczek v. Lynch, 237 Neb. 469, 466 N.W.2d 512 (1991); Mireles v. Broderick, 113 N.M. 459, 827 P.2d 847 (Ct. App. 1992); see Restatement (Second) of Torts 328D, cmt. b (1965). ( A res ipsa loquitur case is ordinarily merely one kind of case of circumstantial evidence, in which the jury may reasonably infer both negligence and causation from the mere occurrence of the event and the defendant s relation to it. ). 58. Massengill v. Starling, 87 N.C. App. 233, 237, 360 S.E.2d 512 (1987); Knief v. Sargent, 40 Wis. 2d 4, 7, 161 N.W.2d 232 (1968) ( When there is evidence of negligence substantial enough to sustain a verdict, the doctrine is inapplicable to those particular facts or theory of negligence and the giving of the instruction is considered superfluous or redundant. ). 59. Danville Cmty. Hosp., Inc. v. Thompson, 186 Va. 746, 759, 43 S.E.2d 882 (1947). 60. Loomis. v. Toledo Rys. & L. Co., 107 Ohio St. 161, 140 N.E. 639 (1923); Kekelis v. Whitin Machine Works, 273 N.C. 439, 160 S.E.2d 320 (1968) (the res ipsa inference of causation does not apply where there is more than one inference that can be drawn from the evidence); Shields, 110 So. 2d at 885. However, the contrary also has been held: namely, a claimant is not required to present evidence to overthrow every reasonable theory of nonliability on the part of the defendant. Powers v. Seibert, 297 S.W.2d 627, 630 (Mo. Ct. App. 1956) (quoting earlier decision) (the facts of the occurrence warrant the inference but do not compel it). 61. Sharp v. Wyse, 317 N.C. 694, 698, 346 S.E.2d 485 (1986) ( The rule of res ipsa loquitur never applies when the facts of the occurrence, although indicating negligence on the part of some person, do not point to the defendant as the only probable tortfeasor. In such a case, unless additional evidence, which eliminates negligence on the part of all others who have had control of the instrument causing the plaintiff s injury, is introduced, the court must nonsuit the case. ) (quoting from Kekelis, 273 N.C. at 443). 62. George Foltis, Inc. v. New York, 287 N.Y. 108, 115, 38 N.E.2d 455 (1941) (... [T]he doctrine of res ipsa loquitur is not an arbitrary rule. It is rather a common-sense appraisal of the probative value of circumstantial evidence. It requires evidence which shows at least probability that a particular accident could not have occurred without legal wrong by the defendant. ); Bornstein v. Metro. Bottling Co., 26 N.J. 263, 269, 139 A.2d 404 (1958); see William L. Prosser, Handbook of the Law of Torts 39 at (4th ed. 1971) ( The injury must either be traced to a specific instrumentality or cause for which the defendant was responsible, or it must be shown that he was responsible for all reasonably probable causes to which the accident could be attributed.... Where such other causes are in the first instance equally probable, there must be evidence which will permit the jury to eliminate them. ). 63. Turk v. H. C. Prange Co., 18 Wis. 2d 547, 553, 119 N.W.2d 362 (1962). 64. Koch v. Norris Pub. Power Dist., 10 Neb. App. 453, 459, 632 N.W.2d 391 (2001); Morner v. Union Pac. R.R. Co., 31 Wash. 2d 282, 290, 196 P.2d 744 (1948). 65. Shields v. United Gas Pipe Line Co., 110 So. 2d 882, 884 (La. Ct. App. 1959); Myrlak v. Port Auth., 157 N.J. 84, 95, 723 A.2d 45 (1999); Leikach v. Royal Crown, 261 Md. 541, , 276 A.2d 81 (1971); Norris v. Ross Stores, Inc., 159 Md. App. 323, 859 A.2d 266 (Ct. Spec. App. 2004) Mueller v. St. Louis Pub. Serv. Co., 358 Mo. 247, 251, 214 S.W.2d 1 (1948); Weaks v. Rupp, 966 S.W.2d 387, 395 (Mo. Ct. App. 1998) ( Missouri courts often infer the superior knowledge element of res ipsa loquitur from the defendant s control over the instrumentality at issue); Shields, 110 So. 2d at 885 ( In addition, for the doctrine to be applicable, the case presented must be one in which the plaintiff cannot be expected to have information as to the cause of the accident, and the defendant on the contrary must from the circumstances be presumed to be fully informed on the subject. (authority cited)); Collins v. Superior Air-Ground Ambulance Serv., Inc., 338 Ill. App. 3d 812, 789 N.E.2d 394 (2003) ( [The]... essence... [of] the doctrine of res ipsa loquitur, and its purpose is to allow proof of negligence by circumstantial evidence when the direct evidence concerning cause of injury is primarily within the knowledge and control of the defendant. ); Baker v. Coca Cola Bottling Works, 132 Ind. App 390, 177 N.E.2d 759 (Ct. App. 1961) ( The basis or reasoning for this principle, in its origin at least, seemed to have been that the defendant had exclusive control over the injuring agency and the plaintiff normally had no access to any information about its control and operation. 3 Cooley on Torts (4th ed.), sec. 480, p ); Dalley v. Utah Valley Reg l Med. Ctr., 791 P.2d 193, 197 (Utah 1990); Nopson v. City of Seattle, 33 Wash. 2d 772, 207 P.2d 674 (1949). 67. See Jackson v. H. H. Robertson Co., 118 Ariz. 29, 574 P.2d 822 (1978). 68. Gilbert v. Korvette s, Inc., 223 Pa. Super. 359, , 299 A.2d 356 (1972). 69. Curley v. Ruppert, 272 A.D. 441, 444, 71 N.Y.S.2d 578 (N.Y. App. Div. 1947) ( The rule of res ipsa loquitur is a common-sense thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. 9

10 appraisal of the probative value of circumstantial evidence. ); Byrne v. Boadle, 2 Hurl. & Colt. 722 (dissent) (quoted in Chesapeake & Potomac Tel. Co. v. Hicks, 25 Md. App. 503, 509, 337 A.2d 744 (Ct. Spec. App. 1975)) (Res ipsa adds nothing to the law, has no meaning which is not more clearly expressed for us in English, and brings confusion to our legal discussions. It does not represent a doctrine, is not a legal maxim, and is not a rule. It is merely a common argumentative expression of ancient Latin brought into the language of the law by men who were accustomed to its use in Latin writings. * * * It may just as appropriately be used in argument on any subject, legal or otherwise. Nowhere does it mean more than the colloquial English expression that the facts speak for themselves, that facts proved naturally afford ground for an inference of some fact inquired about, and so amount to some proof of it. The inference may be one of certainty, as when an excessive interest charge appeared on the face of an instrument, or one of more or less probability only, as when negligence in the care of a barrel of flour was found inferable from its fall out of a warehouse. ); State v. Jasper, 237 Neb. 754, 763, 467 N.W.2d 855, 862 (1991), quoted with approval in Anderson v. Service Merch. Co., 240 Neb. 873, 880, 485 N.W.2d 170 (1992)) ( Res ipsa loquitur operates as a type of circumstantial evidence, that is, facts or circumstances, proved or known, from which existence or nonexistence of another fact may be logically inferred or deduced through a rational process. ); Ferguson v. Metro. Gov t of Nashville & Davidson County, No. 01-A CV-00434, 1993 Tenn. App. LEXIS 281 (Tenn. Ct. App., Apr. 16, 1993). 70. But see Shields, 110 So. 2d at 884 (without citation, res ipsa is a rule of evidence peculiar to the law of negligence ); Zichler v. St. Louis Pub. Serv. Co., 332 Mo. 902, 59 S.W.2d 654 (1933); Flick v. Crouch, 1976 Okla. 116, 555 P.2d 1274; Horner v. N. Pac. Beneficial Ass n Hosps., Inc., 62 Wash. 2d 351, 359 ( a rule of evidence peculiar to the law of negligence also without citation). 71. George Foltis, Inc. v. New York, 287 N.Y. 108, 115, 38 N.E.2d 455 (1941) (in discussing res ipsa, the court stated: In the administration of the law we must be satisfied with proof which leads to a conclusion with probable certainty where absolute logical certainty is impossible. We may be constrained to act upon indecisive evidence where complete proof is impossible. Then the logical probative force of the evidence produced is measured, in part, by the test of whether it is the best evidence available. (authority cited)). 72. Zichler, 332 Mo. at ; Chism v. Campbell, 250 Neb. 921, 927, 553 N.W.2d 741 (1996). 73. Owen v. Gen. Motors, 533 F.3d 913, 923 (8th Cir. 2008) ( It is well-established under Missouri law that juries may infer causation and the existence of product defects based on circumstantial evidence under a res ipsa-type theory such that some product liability claims may be submitted to juries without expert testimony that identifies specific product defects citing Fain v. GTE Sylvania, Inc., 652 S.W.2d 163, 165 (Mo. Ct. App. 1983)). 74. United States v. Mandujano, 499 F.2d 370, 373 n.5 (5th Cir. 1974) cited with approval in State v. Reid, 383 S.C. 285, 679 S.E.2d 194 (Ct. App. 2009) ( The res ipsa loquitur or unequivocality test an attempt is committed when the actor s conduct manifests an intent to commit a crime referencing a comment to the Model Penal Code); see also Collier v. State, 846 N.E.2d 340, 347 (Ind. App. 2006) ( [a]n attempt is an act of such a nature that it is itself evidence of the criminal intent with which it is done and, in support, quoting from Hamiel v. Wisconsin, 92 Wis. 2d 656, 285 N.W.2d 639, 644 (1979) ( [I]n the crime of attempt, it is primarily the acts of the accused which provide evidence of the requisite mental intent. ). 75. Chester D. Hooper & Jeanne-Marie D. Van Hemmen, Burdens of Proof Between Tugs and Tows, 70 Tul. L. Rev. 531, (1995); but see Mullane v. Chambers, 206 F. Supp. 2d 105, 116 (D. Mass. 2002), rev d and remanded on other grounds, 333 F.3d 322 (1st Cir. 2003) ( The circumstances of this case in admiralty are not within the scope of precedents on res ipsa loquitur, and no reason appears for a court s extending the principle to circumstances to which case law would not apply it. ). 76. Acuity Mut. Ins. Co. v. Olivas, 2007 Wis. 12, 47, 298 Wis. 2d 640, 726 N.W.2d 258 (2007). 77. David Tartaglio, Note, Expectation of Peace of Mind: A Basis for Recovery of Damages for Mental Suffering Resulting from the Breach of First Party Insurance Contracts, 56 S. Cal. L. Rev. 1345, 1369 (1983) ( Professors Appleman and Appleman suggest that in order to shift to insurers the burden of proving that an insurer acted reasonably, any insurer breach should be considered a contractual res ipsa. ). 78. Michael L. Closen, HIV-AIDS Infected Surgeons and Dentists, and the Medical Profession s Betrayal of Its Responsibility to Patients, 41 N.Y.L. Sch. L. Rev. 57, 124 (1996). 79. Joseph Pickard s Sons Co. v. United States, 532 F.2d 739, 742 (Ct. Cl. 1976). 80. In re Iridium Operating LLC, 373 B.R. 283, 300 (S.D.N.Y. 2007) ( This aspect of the [Creditors ] Committee s case amounts to res ipsa loquitur-type thinking: i.e., how could the projections have been close to reasonable when the service turned out to be so inadequate, the debt burden turned out to be so high and the revenue turned out to be so pathetically low? ). 81. Barwick v. U.S., 923 F.2d 885, 887 (D.C. Cir. 1991) (personal injury negligence case); In re Sealed Case, 494 F.3d 139, 152 (D.C. Cir. 2006) (in reversing the dismissal of a complaint implicating state secrets, the court implicitly accepted the use of res ipsa in stating, Horn s prima facie case against Huddle relies, subject to the constraints of the state secrets privilege, upon the cable, the office chatter of Embassy personnel, and a res ipsa loquitur inference as to Huddle s source of information about Horn s conversation with Sikorra. ) U.S.C. 1983; Abdullahi v. City of Madison, 423 F.3d 763, 770 (7th Cir. 2005) ( Even conceding that the plaintiff may have been in police custody while he suffered his injury, we refused to indulge plaintiff s logic akin to the doctrine of res ipsa loquitur citing Brownell v. Figel, 950 F.2d 1285, 1292 (7th Cir. 1991); Christopher v. Florida, 449 F.3d 1360 (11th Cir. 2006) (use of a res ipsa theory in a 1983 action claiming use of excessive force by an officer). 83. Karouni v. Gonzales, 399 F.3d 1163, 1174 (9th Cir. 2005). 84. Fowler v. Equitable Trust Co., 141 U.S. 384, 389 (1891) ( Where, indeed, the contract upon its face imports usury, as by an express reservation of more than legal interest, there is no room for presumption; for the intent is apparent; res ipsa loquitur. ). 85. Hardscrabble Ski Area, Inc. v. First Nat l Bank, 42 Wis. 2d 334, 166 N.W.2d 191 (1969) ( A contract may be breached through negligence as well as any other manner. ); Shaw v. Petersen, 180 Ga. App. 823, 824, 350 S.E.2d 831 (1986). 86. Patton v. Mid-continent Sys., Inc., 841 F.2d 742, 751 (7th Cir. 1988) ( Even if the breach is deliberate, it is not necessarily blameworthy. The promisor may simply have discovered that his performance is worth more to someone else. If so, efficiency is promoted by allowing him to break his promise, provided he makes good the promisee s actual losses. If he is forced to pay more than that, an efficient breach may be deterred, and the law doesn t want to bring about such a result. ) (Judge Posner). 87. Landwehr v. Citizens Trust Co., 110 Wis. 2d 716, 329 N.W.2d 411 (1983) ( We agree with the court of appeals that there must be a duty existing independently of the performance of the contract for a cause of action in tort to exist. ); McDonald v. Century 21 Real Estate, 132 Wis. 2d 1, 390 N.W.2d 68 (Ct. App. 1986) ( there is no tort liability for non-feasance i.e., for failing to do what one has promised to do in the absence of a duty to act apart from the promise made ); ( torts consist of the breach of duties fixed and imposed upon the parties by the law itself, without regard to their consent to assume them ); Autumn Grove Jt. Venture v. Rachlin, 138 Wis. 2d 273, 405 N.W.2d 759 (Ct. App. 1987) ( Where a contract is involved, in order for a claim in tort to exist, a duty must exist independently of the duty to perform under the terms of the contract. Wisconsin does not recognize an inherent cause of action in tort for every negligent performance of a contractual obligation. ). thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. 10

11 88. The economic loss doctrine bars a claim for purely economic losses from being pursued in tort when the underlying obligation arose from a contract. See Nelson v. Motor Tech, Inc., 158 Wis. 2d 647, 462 N.W.2d 903 (Ct. App. 1990) ( [I]n order to proceed in a tort action when the parties relationship is defined by a contract, there must be a duty in common law independent from any duty created by the contract. In applying this test, the existence of a contract is ignored when determining whether the alleged misconduct is actionable in tort. ); Flintkote Co. v. Dravo Corp., 678 F.2d 942, 948 (11th Cir. 1982) ( The [economic loss] rule does not prevent a tort action to recover for injury to other property and persons because the duty breached generally arises independent of the contract. ). 89. See Sunnyslope Grading v. Miller, Bradford, 148 Wis. 2d 910, 437 N.W.2d 213 (1989); Wisconsin s economic loss doctrine is a judicially created rule that aims to preserve the distinction between contract and tort and seeks to avoid drowning contract law in a sea of tort. Linden v. Cascade Stone Co., 2005 WI 113, 7, 283 Wis. 2d 606, 699 N.W.2d 189 (2005). 90. The exception, of course, is in the case of bad faith by an insurer Samuel Williston, Treatise on the Law of Contracts, 34:3 at 21 (Richard A. Lord ed., 4th ed. 1999) ( since all trades have their usages, when a contract is made with someone concerning the business of his or her craft, it is framed on the basis of its usage, which becomes a part of the contract, except the usage is preempted by particular stipulations ); Polyfusion Electronics, Inc. v. AirSep Corp., 30 A.D.3d 984, 985, 816 N.Y.S.2d 783 (App. Div. 2006) (industry custom and practice cannot modify unambiguous contract terms) Williston, supra note 91, 34:16 at 128 ( A party is always held to conduct generally observed by members of his or her chosen trade because the other party is justified in so assuming unless he or she indicates otherwise. ); Dwyer v. City of Brenham, 70 Tex. 30, 7 S.W. 598, 599 (Tex. 1888) ( the parties are always presumed to contract in reference to the usage or custom which prevails in the particular trade or business to which the contract relates ) (quoted with approval in Modine Mfg. Co. v. N.E. Indep. Sch. Dist, 503 S.W.2d 833 (Tex. Civ. App. 1973)); Redding v. Snyder, 352 Mich. 241, 246, 89 N.W.2d 471 (1958) quoting Karwick v. Pickands, 171 Mich. 463, 471 (1912) ( It is said that all trades have their usages, and, when a contract is made with a man about the business of his craft, it is framed on the basis of its usage, which becomes a part of it, except when its place is occupied by particular stipulations ) and referencing California Lettuce Growers, Inc., v. Union Sugar Co., 45 Cal. 2d 474, 289 P.2d 785 (1955); 55 Am. Jur. Usages and Customs 24; 25 C.J.S., Customs and Usages 9 and 3 Corbin on Contracts, 556; Mihara v. Dean Witter & Co., 619 F.2d 814, 820 (9th Cir. 1980) (admission of testimony regarding New York Stock Exchange and NASD rules was proper because the rules reflect the standard to which all brokers are held.); see also U.C.C (2), (4), (5). 93. A claimant should not have to show it is free from fault if the performance needed to produce the result rests solely with the other party. 94. Waterbury v. Byron Jackson, Inc., 576 F.2d 1095, 1099 (5th Cir. 1978) (res ipsa rejected where defendant s agents controlled the instruments of an oil well squeeze operation but the plaintiff had complete control over its planning and preparation); see also Pure Torpedo Corp. v. Nation, 327 Ill. App. 28, 63 N.E.2d 600 (1945); J.C. Trahan Drilling Contractor, Inc. v. Cockrell, 225 So. 2d 599 (La. App. 1969) (contractor and owner had shared control of the drilling operation, precluding res ipsa); A. & J., Inc. v. S. Cities Distrib. Co., 173 La. 1051, 1053, 139 So. 477, 478 (1932) ( where there is a divided responsibility and the damage may have resulted from a cause over which the defendant had no control, all of the authorities hold, or at least the great weight of authority is, that the rule cannot be successfully invoked. ). 95. Tucker v. Univ. Specialty Hosp., 166 Md. App. 50, 61, 887 A.2d 74 (Ct. Spec. App. 2005) (in allowing the use of expert inferential reasoning to establish the predicate facts for res ipsa in a medical malpractice action, the court stated... a jury is not permitted to apply a res ipsa analysis to infer negligence, unaided by expert testimony, in a complex case.... ). 96. Gray v. BellSouth Telcom, Inc., 11 So. 3d 1269, 1272 (Miss. 2009); Fibber s Paint & Body Shop v. Reed, 252 Ark. 1016, 482 S.W.2d 832 (1972); St. John s Hosp. & Sch. of Nursing, Inc. v. Chapman, 1967 Okla. 126, 434 P.2d 160 (1967); Napoli v. Hinsdale Hosp., 213 Ill. App. 3d 382, 572 N.E.2d 995 (1991) (the claimant has the burden to prove all three elements); but see Gatlin v. Ruder, 137 Ill. 2d 284, , 560 N.E.2d 586 (1990) (reaffirming Illinois elimination of the third element and holding a claimant does not have to eliminate all other possible causes to use res ipsa). 97. Town of Alma v. Azco Constr. Inc., 10 P.3d 1256 (Colo. 2000). ( Consistent with this duty analysis, we now expressly adopt the economic loss rule. We hold that a party suffering only economic loss from the breach of an express or implied contractual duty may not assert a tort claim for such a breach absent an independent duty of care under tort law. ). 98. See, e.g., Robert M. D Onofrio, Can There Be Float on the Critical Path? Under Constr. Aug. 2009; Judah Lifschitz, Evans Barba & Alexis Lockshin, A Critical Review of the AACEI Recommended Practice for Forensic Schedule Analysis, Constr. Law., Fall 2009, at Time of the essence generally arises when the contract or conduct of the parties makes it clear that time is a critical element of the performance and consequences are specified for failure to achieve on time performance. Ricchio v. Oberst, 76 Wis. 2d 545, 557, 251 N.W.2d 781 (1977) ( Time will not be regarded as of the essence of the contract merely because a definite time for performance is stated therein, without any further provision as to the effect of nonperformance at the time stated. ); see also Long Inv. Co. v. O Donnell, 3 Wis. 2d 291, , 88 N.W.2d 674 (1958) (a provision requiring performance by a date no later than does not transform time into being of the essence without language on consequences for untimely performance). There is authority for the proposition that where there is some provision as to time of performance, a reasonable time is not implied; however, the existence of one or the other is beyond the scope of this article Tommy L. Griffin Plumbing & Heating Co. v. Jordan, Jones & Goulding, Inc., 570 S.E.2d 197, 199 (S.C. Ct. App. 2002) (expert testimony necessary to establish reasonable time for engineer to complete redesign work) City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) Buzgheia v. Leasco Sierra Grove, 60 Cal. App. 4th 374, 389, 70 Cal. Rptr. 2d 427 (1997) ( In determining whether the normal allocation of the burden of proof should be altered, the courts consider a number of factors: the knowledge of the parties concerning the particular fact, the availability of the evidence to the parties, the most desirable result in terms of public policy in the absence of proof of the particular fact, and the probability of the existence or nonexistence of the fact. ) See, e.g., Micro-Managers v. Gregory, 147 Wis. 2d 500, 434 N.W.2d 97 (Ct. App. 1988) (there is no implied warranty of results in a pure time-and-material software programming services contract). thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. 11

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