The Importance Of Engaging Design Professional Experts Early, With A Focus On Massachusetts Law

• Published date: 03 June 2022
• Subject Matter: Litigation, Mediation & Arbitration, Real Estate and Construction, Professional Negligence, Construction & Planning
• Law Firm: Gordon Rees Scully Mansukhani
• Author: Jay S. Gregory

In any Massachusetts case alleging negligence against a design professional, an expert witness on the topic of liability is a critical, early consideration. Given the expense of expert witnesses, counsel representing design professionals are wise to evaluate (1) the need for an expert, (2) the timing of the engagement of an expert, and (3) the scope of the expert's services.

To begin, not every allegation of negligence against a design professional necessitates an expert opinion. "The test for determining whether a particular a particular matter is a proper one for expert testimony is whether the testimony will assist the jury in understanding issues of fact beyond their common experience." Herbert A. Sullivan, Inc. v. Utica Mutual Insurance Co., 439 Mass. 387, 402 (2003) (addressing duties of an insurer). For instance, in its ruling in Parent v. Stone & Webster Engineering Corp., the Massachusetts Supreme Court noted no expert would be necessary to prove professional negligence where an electrician was injured by a mislabeled distribution box carrying 2,300 volts. 408 Mass. 108 (1990). It is reasonable to expect lay jurors to comprehend the duty of an electrician to properly label a distribution box carrying potentially fatal quantities of voltage. To the extent liability is readily recognizable to the average juror (i.e. "within the ken of the average juror"), significant cost savings are achievable by forgoing the use of an expert witness. That, however, is the exception.

Far more often the duty of care is more nuanced, and an expert is required to prove liability. For instance, "[a]rchitects, like other professionals, do not have a duty to be perfect in their work, but rather are expected to exercise 'that skill and judgment which can be reasonably expected from similarly situated professionals' . . . Expert testimony is generally needed to establish this professional standard of care." LeBlanc v. Logan Hilton Joint Venture, 463 Mass. 316, 329 (2012). While contracts for architects, engineers, surveyors and other design professionals often expressly set forth their duties, those contractual terms are not typically sufficient to establish liability against the design professional. More explanation is required to educate the average juror on duties (written and/or implied) of design professionals.

Furthermore, design professional deviations from the common practices of the profession do not always constitute negligence. Design creativity can be...