How to Choose a Construction Delay Claim Expert Witness in Florida

Posted by Don Carlow, CGC, EI, PSP · Florida Construction and Scheduling Consultants

Construction projects in Florida frequently encounter schedule delays. When a delay results in a contract dispute, the parties commonly retain a construction delay claim expert witness to analyze project records, evaluate the causes and effects of delay, and provide expert opinion testimony in the relevant legal forum.

The selection of a delay claim expert witness involves the consideration of multiple factors, including education and technical qualifications, forensic schedule analysis training and experience, familiarity with construction and contract administration practices, regional knowledge of the project location, communication ability, and prior testimony experience. This article describes the categories of qualifications and considerations that parties and counsel commonly evaluate when retaining a construction delay claim expert witness in Florida.

Role of a Construction Delay Claim Expert Witness

A construction delay or scheduling expert witness analyzes the timing and sequencing of construction activities, the causes of variances from the planned schedule, and the effects of those variances on project completion. Typical assignments may include analysis of:

•             Critical path impacts

•             Delay causation and responsibility

•             Concurrent delays

•             Design and change impacts on the schedule

•             Lost productivity and disruption

•             Acceleration efforts

•             Weather and force majeure impacts

Work product produced in connection with these assignments may include written expert reports, rebuttal reports, demonstrative exhibits, and oral testimony at deposition, arbitration, or trial. Experts may also assist counsel during discovery and participate in mediation proceedings.

Forensic Schedule Analysis Methodologies

Construction delay claim analysis is generally based on Critical Path Method (CPM) scheduling techniques. A number of forensic schedule analysis methodologies have been developed and refined over several decades and are described in industry literature.

Recognized published sources of forensic scheduling methodology include AACE International and the Project Management College of Scheduling (PMCOS). There are also books on the subject, such as Construction Delays: Documenting Causes, Winning Claims, Recovering Costs by Theodore J. Trauner.

Categories of forensic schedule analysis methodology commonly discussed in the literature include:

• As-Planned vs. As-Built Comparison (APAB). An observational comparison of the original baseline schedule to a constructed as-built schedule, with the differences attributed to identified causes.

• Contemporaneous Period Analysis (a.k.a. "Windows Analysis"). An observational method that divides the project duration into sequential time periods (windows) and evaluates the contemporaneous schedule updates within each window to identify the causes of changes to the projected completion date.

• Time Impact Analysis (Retrospective TIA). A retrospective method that uses a reasonable baseline schedule and a series of adjusted schedules to illustrate the effect of controlling delay events. The retrospective form differs from the prospective TIA often specified on Federal projects, which is a modeled approach performed in real time during construction.

The methodology selected for a specific matter generally depends on the available project records, the functional usability of the project schedules for forensic analysis, the nature of the dispute, the contract requirements, and the forum in which the dispute will be heard. The selection and proper application of a forensic schedule analysis methodology is often itself an issue in construction litigation, and may be the subject of opposing expert opinion and motion practice. Counsel evaluating a prospective expert may inquire about the expert’s familiarity, training, and professional experience with the selection and application of the methodologies commonly used by experts conducting forensic delay analyses.

Florida Admissibility Standards

Expert testimony in Florida state courts is governed by Florida Statutes § 90.702, which, since 2013, has codified the Daubert standard for the admissibility of expert opinion testimony. Under that standard, expert testimony is admissible if it is based on sufficient facts or data, is the product of reliable principles and methods, and the expert has reliably applied those principles and methods to the facts of the case. The trial court serves as a gatekeeper in determining whether these requirements are satisfied.

Florida federal court proceedings apply Federal Rule of Evidence 702, which is substantively similar following the 2023 amendments. Arbitration proceedings administered under the rules of the American Arbitration Association or JAMS may apply rules of evidence in a more limited form, but admissibility challenges in those proceedings often involve substantially the same considerations.

The use of recognized forensic schedule analysis methodology, reliable analytical work product, reliance on contemporaneous data, and documented sources/bakup are among the factors that courts and arbitral panels may consider when evaluating admissibility under § 90.702 or Rule 702. Counsel evaluating a prospective expert may inquire about the expert’s familiarity with these admissibility standards and the expert’s experience in matters in which admissibility was challenged.

Technical Qualifications

Construction delay claim expert witnesses generally possess a combination of construction industry experience and scheduling expertise. Categories of technical qualification that may be relevant include:

Scheduling Software Experience. Familiarity with the scheduling platforms used on the project at issue is generally expected. The most commonly encountered platforms on Florida construction projects include Oracle Primavera P6 or Microsoft Project.

Critical Path Method Competencies. Technical competencies typically expected of a delay claim expert include baseline schedule development and review, logic network evaluation, schedule update analysis, recovery schedule/mitigation evaluation, and validation of schedules as source data for forensic analysis purposes in accordance with industry guidelines.

Forensic Analysis Capability. Experience in performing the categories of analysis described above under industry-recognized methodologies, and the ability to select an analytical approach appropriate to the available records.

Construction Industry Experience. Hands-on project management or construction contract administration experience may be considered relevant to the evaluation of contractor planning, sequencing assumptions, mitigation efforts, and baseline schedule validation. Expert witnesses with field and management experience are often able to address the practical reality of construction operations in addition to the analytical schedule data.

Project Type Familiarity. Familiarity with the type of project at issue may be relevant. In Florida, commonly encountered project types include high-rise residential and mixed-use construction, hospitality projects, healthcare and hospital facilities, public works and transportation infrastructure, theme park and entertainment facilities, federal and military projects, coastal and waterfront construction, and high-end single-family residential projects.

Professional Credentials

A number of professional credentials may be relevant to the qualifications of a construction delay claim expert witness. Commonly encountered credentials that include construction planning and scheduling as a core competency include:

• Planning & Scheduling Professional (PSP) — issued by AACE International to candidates who demonstrate planning and scheduling competency through examination.

• Certified Forensic Claims Consultant (CFCC) — also issued by AACE International, focused on forensic claim analysis.

• Certified General Contractor (CGC) — issued by the Florida Department of Business and Professional Regulation, indicating licensure to engage in general contracting in Florida.

• Project Management Professional (PMP) — issued by the Project Management Institute.

• Certified Construction Manager (CCM) — issued by the Construction Manager Certification Institute (CMCI).

Membership in professional organizations relevant to forensic scheduling and construction claims may also be considered. Such organizations include AACE International and the Project Management College of Scheduling (PMCOS).

Credentials and memberships, standing alone, are not generally considered sufficient without practical project experience and forensic analysis experience supporting the expert’s specific opinions in the matter at hand.

Florida-Specific Considerations

Construction projects in Florida are subject to environmental, regulatory, and economic conditions that may differ from those in other regions. Factors that have been the subject of delay claim disputes in Florida construction matters include:

Hurricanes and Tropical Systems. Florida experiences hurricane and tropical storm activity from June through November. Impacts could include jobsite shutdowns, material delivery impacts, crane demobilizations, flooding and water intrusions, labor shortages during recovery efforts, utility outages, site tie-down protocols and temporary structure removal, and wind/water damage. Evacuations can cause fuel shortages, interstate congestion, stops in deliveries, and workforce relocation.

Weather Delays. Extreme wind, rainfall, and afternoon thunderstorms can cause issues such as productivity disruptions, crane downtime, concrete pour interruptions, lightning shutdowns, soil instability, dewatering requirements, and delayed earthwork and paving. Schedules should account for contingency time for potential weather events. The distinction between excusable and non-excusable weather days under typical contract weather provisions is often made by comparing contemporaneous project records with National Oceanic and Atmospheric Administration (NOAA) historical climatological data and the governing contract's specific weather provisions.

Climate Issues. Rising sea levels, flooding and King Tides, extreme heat and humidity, and intensifying hurricanes can disrupt construction projects in Florida. These factors can inflate project costs, extend timelines, and require adherence to stricter building codes.

Heat & Humidity. Can lead to more frequent breaks for workers (OSHA-required heat index safety stoppages), reduced afternoon productivity, and shifting summer schedules to early-morning work and night operations.

Flooding and High Groundwater Table. Can cause excavation instability, foundation redesigns, delayed underground utility work, and the need for dewatering systems.

Protected Wildlife Restrictions. Species/issues include manatee protection zones, sea turtle nesting season, burrowing owls, gopher tortoises and migratory bird protections, resulting in work stoppages, relocation procedures, restricted lighting and limited coastal work windows.

High-Velocity Hurricane Zone (HVHZ). Miami-Dade and Broward counties are designated High-Velocity Hurricane Zones under the Florida Building Code. Construction within the HVHZ requires the use of products approved under the Miami-Dade County Notice of Acceptance (NOA) program for many building envelope components, including windows, doors, roofing systems, and exterior cladding. Procurement, approval, and substitution issues involving NOA-approved products have been identified as contributors to schedule disruption on South Florida projects.

Florida Building Code. The Florida Building Code applies statewide and is updated on a multi-year cycle. Code amendments and the timing of code changes have, in some matters, been relevant to the analysis of design-related schedule events.

Coastal Construction Regulations. Construction seaward of the Coastal Construction Control Line is subject to additional permitting requirements administered by the Florida Department of Environmental Protection under Chapter 62B-33, Florida Administrative Code. Permit review and condition compliance have been the subject of disputes in delay claims during the permitting of coastal projects. Other issues include FEMA flood elevation requirements, windborne debris standards, and enhanced structural requirements for permanent and temporary structures.

Agency Having Jurisdiction Approvals. Florida construction projects may be subject to the approval and inspection requirements of multiple Agencies Having Jurisdiction (AHJ), including local building departments, the State Fire Marshal, the Agency for Health Care Administration (AHCA) for hospital and licensed health care facility projects, the Department of Education for public school projects under State Requirements for Educational Facilities (SREF), and the Department of Transportation (FDOT) for state highway projects.

Post-Surfside Recertification Legislation. Following the 2021 Champlain Towers South collapse, Florida enacted Senate Bill 4-D (2022) and follow-on legislation establishing milestone structural inspection and recertification requirements for residential buildings three stories or taller. Recertification-driven repair and replacement work has generated a category of South Florida construction dispute that may involve delay, defect, and design professional issues.

Statute of Limitations and Statute of Repose. Florida Statutes § 95.11(3) sets limitations periods for construction-related claims, and § 95.11(3)(c) establishes a statute of repose for actions founded on the design, planning, or construction of an improvement to real property. Counsel will typically address these provisions in evaluating the timing of claim notice and the scope of permissible claims; experts retained on matters near limitations or repose periods may be asked to address the timing of identifiable defects or delays.

Festivals, Holidays, and Seasonal Events. Large-scale events in Florida often force construction projects to pause daytime work, alter road closures, restrict deliveries, or limit utility shutdowns. Planners typically shift crews to night shifts or suspend operations to avoid compounding massive crowds, ensure pedestrian safety, and mitigate traffic delays. Examples include spring break in coastal counties, Bike Week in Daytona Beach, Art Basel in Miami Beach, Formula 1 Miami Grand Prix, FIFA World Cup matches and the Super Bowl (when hosted in Florida). Such events have, in some matters, been raised in connection with scheduling and access disputes, and in the case of hospitality projects, the timing of completion prior to such events.

Labor and Supply Chain Conditions. Regional labor availability, particularly in skilled trades, and supply chain conditions for materials manufactured in or imported through Florida ports may influence production rates. Heightened enforcement by U.S. Immigration and Customs Enforcement (ICE) and stricter state immigration laws have affected Florida's construction labor force. Impacts have included widespread worker absences, delayed project timelines, and increased construction costs

Familiarity with these Florida-specific issues should play an important role in selecting a construction scheduling and delay expert witness in Florida.

Documentation and Records Review

Construction delay claim analysis is generally document-intensive. The reliability of forensic schedule analysis is closely tied to the completeness and quality of the contemporaneous project records. Experts consider whether the available records are sufficient to support the analytical methodology they anticipate applying. As such, experts should have the support staff and proven ability to quickly organize and review large volumes of project records to identify potentially missing information needed to perform the required analyses.

Communication and Presentation

Construction delay analysis involves technical concepts that must be communicated to attorneys, judges, arbitrators, mediators, and jurors who may not have a background in construction or scheduling. Communication ability is frequently evaluated independently of analytical capability because the persuasiveness of expert testimony in dispute-resolution settings often turns on the clarity and understandability of the presentation.

Considerations relevant to communication ability include the structure and readability of prior expert reports, the use of summary schedules and demonstrative graphics, and the expert’s prior deposition and trial testimony. Redacted or publicly available prior work product may be reviewed by counsel as part of the selection process.

Past experience as a trainer or lecturer is a good indicator that an expert will have what it takes to communicate and present on technical topics to non-technical audiences. A good expert witness has the heart of a teacher.

Testimony and Litigation Experience

Construction delay claim experts may provide testimony in state court litigation, federal court litigation, arbitration proceedings, mediation, and administrative hearings. Considerations that may be reviewed in evaluating prior experience include the number and nature of prior testimony engagements, deposition experience, arbitration experience, the volume and type of prior expert reports, familiarity with applicable evidentiary standards, and the expert’s experience with admissibility challenges.

Timing of Engagement

The retention of a construction delay claim expert during the early phases of a dispute may, in some matters, expand the scope of analytical work that can be performed. Early retention may permit involvement in developing document requests, framing interrogatories on technical subjects, and evaluating the case posture before the discovery phase.

Scope of Engagement

Construction delay claim experts may be retained for limited or comprehensive assignments. Common scopes of work include:

• Preliminary or Phase 1 screening claim evaluation

• Independent schedule review

• Affirmative expert report on causation, entitlement, and quantum

• Rebuttal analysis of an opposing expert’s work

• Mediation and settlement support

• Deposition, arbitration, and trial testimony

• Coordination with damages, cost, productivity, or other technical experts retained in the matter

The appropriate scope is typically determined by counsel in consultation with the client and the expert, based on the size and complexity of the dispute, the posture of the matter, and the available budget.

Selection Considerations Summary

The selection of a construction delay claim expert witness in Florida generally involves consideration of:

• Construction industry experience and project type familiarity

• Forensic schedule analysis methodology experience

• Technical scheduling competencies and software proficiency

• Professional credentials

• Communication and presentation ability

• Prior testimony and litigation experience

• Florida-specific market, regulatory, and environmental knowledge

• Availability of supporting staff and resources

• Anticipated forum (state court, federal court, arbitration, or administrative)

• Anticipated scope of engagement

The relative importance of each factor depends on the complexity of the dispute, the project size, the available documentation, and the procedural posture of the matter.

About Florida Construction and Scheduling Consultants

Florida Construction and Scheduling Consultants is a Florida-based construction consulting practice founded by Don Carlow, CGC, EI, PSP. The practice provides forensic schedule analysis, CPM scheduling consulting, and expert witness testimony to owners, developers, contractors, sureties, insurance carriers, and their legal counsel on construction matters throughout Florida.

To discuss a construction delay claim matter, contact us at 407-603-6165 or Info@Florida-Consultants.com. Initial consultations are available without charge through our online scheduling page.

This article is provided for general informational purposes. It does not constitute legal advice or an opinion on any specific matter, project, dispute, or party. Readers requiring advice on a specific construction matter should consult qualified legal counsel and, where appropriate, retain a construction expert to address the particular facts and circumstances of that matter.