Critical Path Testimony Not Required to Prove a Delay Claim

B. Michael Clark, Jr.
April 28, 2011


In Weitz v. M.H. Washington, the Eight Circuit held that critical path testimony is not necessary to support a delay claim, making this a potentially precedential decision.

In the case, Weitz, a general contractor, retained an expert to analyze responsibility for delays on a townhome project. The expert employed “windows analysis,” which distinguishes activities on the critical path with those with “float” time where a delay does not affect the overall job, and a “baseline schedule” that he created for his analysis.

M.H. Washington moved to exclude the testimony as unreliable. Washington argued that the expert’s testimony was unreliable because it was premised upon the baseline schedule that was the expert’s own creation and did not distinguish float and critical path activities. Therefore, the expert was not able to distinguish particular activities on the project as on or off the critical path, and the owner argued that it was incapable of verifying the opinion.

Weitz countered that the expert had testified that in his experience “near critical path activities” should be analyzed as critical. Furthermore, the baseline schedule was derived from the original project schedule, and Washington had not employed its own expert to analyze and refute its expert witness’ opinion.

The District Court in allowing the expert’s opinion had noted that it had some apparent weakness, but was sufficiently specific to allow Washington to analyze the opinion and identify specific documents which arguably could demonstrate flaws in the analysis.

The Eight Circuit discussed Daubert v. Merrell Dow Pharms, Inc. in holding that the District Court did not abuse its discretion in allowing the testimony. It noted that Washington’s argument about which activities should have been excluded from the “critical path” do not rise to the level of inherent unreliability because most activities become critical if they are all that is left to complete the work. Furthermore, the court held that the expert’s use of his own schedule went to the weight, not the fundamental reliability of his analysis.