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Legal Updates for Construction Litigation

June 27, 2017
Presented by the Architectural, Engineering & Construction Defect Litigation Practice Group

Expert Testimony and Professional Negligence Claims

Coming out of the Twelfth Judicial Circuit, the recent case of Armour, et. al. v. Karins, et. al., Case No.: 2010-CA-000046NC (2017), provides new insight into the use of expert testimony in professional negligence claims. Following the completion of a recent trial, the trial court in Armour recently issued an order denying the engineer's Motion for Directed Verdict.

Florida case law is clear, in a professional negligence case, the plaintiff must "introduce competent evidence establishing the standard of care expected to be met by the defendant."  To do so requires expert testimony to establish the standard of care, unless "the duty is so obvious as to be apparent to persons of ordinary experience."  Id at 1.   

In Armour, the engineer argued the plaintiff failed to present any evidence of the engineer's standard of care. The Engineer also argued its expert clearly testified the work performed by the engineer did not fall below the standard of care.

In response, the plaintiff argued his expert did testify as to the standard of care and there "was abundant evidence that the letters contained multiple untrue statements made either negligently or fraudulently."  Id. at 2.

The court found the plaintiff's expert did not establish the standard of care and the testimony provided by the plaintiff's expert that he "would ordinarily or typically not perform an act in the manner performed by a defendant is not germane." Id.  Instead, an expert must provide in the plaintiff's case-in-chief:

An explanation to the jury of what a reasonable actor would do under the circumstances, why it would be incumbent to act in that way, and why the way in which the actor did perform did not meet the expectations of the community of which he or she is a part.Id.

 The plaintiff also argued the engineer's work was inaccurate and, therefore, amounted to fraud or negligent misrepresentation, clearly below the standard of care of engineers provided in §471.003(1)(g), Florida Statutes.  However, the court noted the plaintiff failed to seek an instruction based on the statute or to request the court take judicial notice of it.  Thus, there was no record evidence for the jury to determine if the engineer had violated the standard of care created by the statute. Id. at 3.

Even so, the court went on to rule the issues raised in the professional negligence claim against the engineer were "straightforward" and not "so esoteric or technical as to be beyond the cognitive capacities of the average juror." Thus, the "plaintiff's failure, under the unusual circumstances of this case, not to present more direct evidence of the standard of care is not fatal" and denied the engineer's Motion for Directed Verdict.  Id. at 4-5.


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