Cases at the Armed Services Board of Contract Appeals often require scientific or other technical evidence that is best explained by an expert witness. Though it conducts no jury trials and the rules do not expressly require it, the board generally considers itself the gatekeeper of junk scientific evidence. The board regularly considers motions challenging the admissibility of expert testimony. It also regularly grants them.
In the appropriate case, a pretrial motion to exclude an expert’s testimony can be an effective tool. Here we address the most common grounds for challenges to expert testimony at the ASBCA.
Expert testimony must be reliable.
The basic test for the admissibility of expert testimony in federal courts is set forth in Rule 702 of the Federal Rules of Evidence, which codifies the Supreme Court’s decisions in Daubert v. Merell Dow Pharmaceuticals, 509 U.S. 579 (1993), and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). Under Rule 702, expert testimony must not only be helpful, it must be based on sufficient facts or data, and be the product of reliable principles and methods.
Parties in litigation at the ASBCA are not exempt from the reliability requirement. The board frequently refers to the standards set forth in Rule 702 as a prerequisite to the consideration of expert testimony. Even without a jury, the board will exclude expert testimony that the board finds unreliable. Board rules are generally more flexible than the federal rules when it comes to the admissibility of evidence, but an expert’s opinion must be sufficiently reliable for the board to consider it. Universal Yacht Services, Inc., ASBCA No. 53951, 04-2 BCA ¶ 32648 (May 24, 2004) [pdf].
An unqualified expert cannot testify.
Even before addressing the question of reliability, parties offering expert testimony must demonstrate that their experts have the necessary expertise. The board has excluded experts that do not have the requisite qualifications. In Sherman R. Smoot Corp., ASBCA 52261, 03-1 BCA ¶ 32197 (Feb. 26, 2003) [pdf], for example, the government offered an expert to testify about the critical path method schedule analysis he performed. The expert had a degree and experience in industrial engineering, but lacked any education or experience in construction. He had not prepared a construction schedule and had never used the terms “excusable” or “compensable” as it related to delay on a government contract. The board granted the contractor’s motion to exclude the expert’s testimony because he was not qualified in CPM schedule analysis.
Conclusory opinions are inadmissible.
The board has excluded expert witnesses that fail to apply their specialized knowledge. In Parsons-UXB Joint Venture, ASBCA No. 56481, 12-1 BCA ¶ 34919 (Jan. 12, 2012) [pdf], the contractor sought reimbursement for additional excise taxes imposed by the state of Hawaii. The contractor argued that the taxes were unforeseeable and that they exceeded the total contract funding allotted for costs. The government sought to have an accounting expert testify about the foreseeability of the taxes. Despite having sufficient qualifications to testify as an accountant, the board granted the contractor’s pretrial motion in limine to exclude the expert’s under Rule 702 and Daubert. The board rejected the testimony because the accountant had not analyzed the contractor’s accounting or financial records or provided any insight based on his specialized knowledge.
Experts cannot normally offer legal opinions.
Parties are often tempted to have their expert explicitly support their legal theory. While there is no prohibition against experts offering an opinion on the “ultimate issue” presented at trial, they should not normally offer purely legal opinions. The board consistently excludes the testimony of experts attempting to offer legal opinions. In BAE Systems Info. & Elec. Systems Integration, Inc., ASBCA No. 44832, 03-1 BCA ¶ 32193 (Feb. 28, 2003) [pdf], the contractor offered an accounting expert from Arthur Anderson. The government moved to strike this expert testimony, asserting that he was offering an inappropriate legal opinion on the interpretation of the contract. The board agreed and struck the testimony. Expert testimony on contract or regulatory interpretation was simply not helpful to the board.