BONITA SPRINGS, FL – Gautam Reddy, partner at Kilpatrick Townsend & Stockton LLP, is a panelist for CSC’s “Insights from Arbitrators and Advocates on the Pros and Cons of Alternative Delay and Damages Quantum” educational session on the middle day (December 10) of CSC. One question sure to come up: Should defendants prepare their own full delay analysis or focus on undermining the claimant’s expert? Third Thursday asked Reddy for his thoughts on the matter, plus a bit more about the session.
Third Thursday: How do you determine whether defendants should prepare their own full delay analysis or focus on undermining the claimant’s expert?
Reddy: There are several factors that play into this decision. Oftentimes, the biggest factor is cost. Depending on the party you represent in a dispute, it may be more efficient to critique the opponent’s analysis rather than pay for an expert to prepare a detailed CPM analysis, which can be expensive. This often comes into play when representing a smaller subcontractor or supplier. The forum is also an important consideration. There is less risk in not having your own delay analysis in an arbitration, where the factfinder is experienced with construction disputes and can apportion delay or quantum without having competing analyses.
Third Thursday: What’s a specific example of undermining a claimant’s expert through critique and cross-examination?
Gautum Reddy: Yes, a party attempted to undermine our client’s expert witness by engaging an expert witness to attack our expert’s CPM schedule analysis. The opposing party’s expert did not prepare his own CPM analysis and instead offered opinions on the alleged flaws in our expert’s analysis. A primary reason for this is that the contemporaneous schedule updates were unfavorable to the opposing party and they did not want to implicitly validate the reliability of those schedules by preparing a delay analysis based on those schedules.
Third Thursday: How much have tariffs affected construction disputes and delays?
Reddy: We have not seen a significant impact from tariffs yet on the disputes side. We expect that there may be claims made by contractors for cost increases for importing materials from Canada, Mexico, and other countries.
Third Thursday: What questions/issues are likely to emerge at your panel discussion?
Reddy: I expect attendees to ask when it makes sense to focus on undermining the claimant’s expert through critique and cross-examination alone. I also expect them to ask the neutrals on the panel about what they think about this and when it is effective. One of the key issues in construction disputes is how to go about proving your case regarding delay and quantum. Of course, we typically rely on expert witnesses to provide this analysis, but there are scenarios where it is advantageous to not provide an alternative delay analysis.
Gautum Reddy is a partner at Kilpatrick Townsend & Stockton LLP.
