Most times during the course of a trial or arbitration, a sophisticated EPC contractor on a complex, industrial construction project will necessarily have to introduce the testimony of its own employees, who happen to be licensed engineers or the like. This invariably leads to the adverse party moving to strike portions of such testimony, on the basis that the individuals are purely fact witnesses and should be excluded from providing any expert opinion testimony. However, it is important to remember that such opinion testimony can, in certain circumstances, be rendered by fact witnesses possessing the proper qualifications.

FRE 701 provides that lay witness opinion testimony may be made for two reasons: 1) if it is rationally based on the perception of the witness; or 2) if it is helpful to a clear understanding of the witness’ testimony or the determination of fact in issue. The case law interpreting FRE 701 has held that nothing in FRE 701 prohibits lay witnesses from arriving at an opinion through the use of specialized knowledge. In fact, in several cases involving testimony based on a witness’ extensive experience in a particular industry, federal courts have held that the witness’ opinion can be classified as being either lay witness opinion or expert opinion. See, e.g., Burlington Northern R. Co. v. Nebraska, 802 F.2d 994, 1004-1005 (8th Cir.1986) The Burlington court held that in an action concerning constitutionality of a state statute requiring trains to carry a manned caboose, the trial court abused its discretion in excluding opinion testimony of railroad executives based on years of experience in industry:

The district court has broad discretion in determining whether to admit opinion testimony and we overturn a ruling only for abuse of discretion . . . [A] lay witness’ testimony in the form of opinions or inferences need only be rationally based on perception and helpful to a determination of a fact in issue . . . Personal knowledge or perception acquired through review of records prepared in the ordinary course of business, or perceptions based on industry experience, is a sufficient foundation for lay opinion testimony . . . The railroad executives’ testimony, based on knowledge derived from supervising railroad operations, years of experience in the industry, and review of employee accident reports prepared in the ordinary course of business, satisfies the foundation requirements for lay opinion testimony.

See, also, U.S. v. Myers, 972 F.2d 1566, 1577 (11th Cir. 1992), Cert. Den. 507 U.S. 1017, (holding that a lay witness’ lack of technical/medical basis when rendering an opinion could be exposed on cross-examination and affected the weight, not the admissibility, of the evidence); Farner v. Paccar, Inc., 562 F.2d 518, 520 (8th Cir. 1977) (holding that a truck operator with extensive experience in the industry could render lay opinion regarding the proper use of safety chains); Gravely v. Providence Partnership, 549 F.2d 958, 961 (4th Cir. 1977) (holding that the trial court properly allowed lay opinion testimony of company’s president regarding relative safety of conventional versus spiral staircase where witness’ experience with stairway construction embraced some 26 years).

Thus, and EPC contractor’s employees possessing extensive construction training and experience can be qualified to render opinion testimony, because such testimony can be rationally based and helpful to a determination of the facts that are at issue. Furthermore, the witnesses’ may testify as to their perceptions naturally based upon personal training and experience. Thus, such witnesses should be found to satisfy the strictures of FRE 701 and should not be barred from rendering opinion testimony.

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