In a trial, there are 2 types of witnesses. One is called a “fact witness” – a person who tells the jury what he/she saw or said. The second kind is called an “expert witness” – this witness can give opinions on things that he/she did not see – he/she can give opinions about something relevant to the case, if the judge determines that they are an expert in the field and can help the jury understand the issues in the case.
The trial judge decides if a proposed expert can give opinion testimony. This decision is based upon whether the judge determines that the person is actually an expert in a subject relevant to the case. Only in rare circumstances will the appellate courts second guess the trial judge’s decision in this area.
Thus, when the South Carolina Court of Appeals reversed a case based on this issue this week, I thought you might want to hear about it. By the way, there is a similar rule in North Carolina about when a witness can give expert opinion testimony.
Just The (Key) Facts
Tesnair v. Professional Plastering & Stucco, Inc. provides a nice primer on this important legal issue in South Carolina. It’s not ground breaking, but it can provide a good education and hopefully help us understand an important and contested issue that arises in many trials.
This case involves allegations of extensive damage to a large condo development on John’s Island, South Carolina. The suit was about whether there were problems with the design of the building and the work by the various contractors. Fixing the damage cost millions of dollars, even by the lowest estimate.
By the time of trial, everyone except Professional Plastering & Stucco, Inc., which had installed the stucco, had settled. From my experience with such cases, the litigation cost for the many defendants was probably very high. Everyone who touched the building seems to end up being sued in these kinds of cases.
All About The Expert
Professional Plastering offered a witness who seemed to be very knowledgeable and experienced, but the trial judge did not allow Chris Dawkins to testify as an expert. Dawkins has a civil engineering degree from NC State University and a master's degree in civil engineering with a specialty in construction management from Georgia Tech. He is licensed in North Carolina and Georgia, but not South Carolina. He has 30 years of experience and focused on determining the problems with buildings, including stucco issues in coastal Georgia.
Dawkins knew about the International Residential Code of 2000 (IRC) which was at issue as well. Dawkins had witnessed the testing done on the building, but did not conduct the testing himself.
The South Carolina Court of Appeals ruled that the trial judge had made an error in keeping out Dawkin’s opinion testimony. It is important to understand that the appeal’s court did not simply disagree with the trial
judge. They ruled he had abused his substantial discretion as the trial judge. Specifically, the Court of Appeals ruled that “trial court abused its discretion because it did not delineate any particular reason for its decision to not qualify Dawkins.”
The South Carolina Court of Appeals cited Rule 702 of the South Carolina Rules of Evidence and ruled that Dawkins’ combination of education and experience would have helped the jury understand the issues before them.
The South Carolina Court of Appeals went on to rule that Professional Plastering & Stucco, Inc. was prejudiced in the company’s ability to defend the case before the jury by this error. Thus, the Court of Appeals reversed the case.
What are the lessons for South Carolina trial lawyers and their clients?
First, it is important to understand the sorts of issues on which you need an expert to give an opinion in order to make your case.
Second, choose an expert who is clearly qualified based on the issues about which you want them to testify. If Mr. Dawkins had lacked a thick resume with appropriate education and relevant experience, the South Carolina Court of Appeals would not have ruled in this fashion.
Third, make sure your expert’s credentials are set out clearly for the trial judge. Ensure any errors by the judge in ruling on whether your expert can testify are put into the record so that you can appeal the trial's outcome if the judge's error impacted the outcome in the case. Hard work and solid preparation are the keys to getting the best results at trial.
Finally, litigation is complex, expensive, and time consuming. There is no easy way and no cheap way to handle such matters. An experienced trial attorney can help you navigate through the process.