Abstract: The calculation of lost labor productivity is controversial because of the widespread skepticism of those owners (or even general contractors) against whom such claims are asserted, as well as triers-of-fact, who may come to view the methodologies employed to calculate both the extent and value of the asserted damages as questionable, speculative, and illusory. With Daubert fully entrenched in federal jurisprudence, and many states following suit in imposing on the trier-of-fact the role of "gatekeeper," those parties seeking to pursue loss-of-productivity claims need to acquaint themselves with the requisites of a proper evidentiary basis as well as determine the best choice of an appropriate modality to calculate a loss-of-labor productivity claim in order to avoid the Daubert "shoals." In doing so, they need to undertake a reality check of their claim during the process of its development.
In this article, we will discuss how lost labor productivity claims are developed; the interplay of Daubert in the pursuit of, and defense against, such claims; and recent federal and state case law addressing loss productivity. We will then endeavor to discuss and analyze the current professional literature regarding techniques to improve the accuracy of determining the validity and value of such claims.

This article, "Calculating Lost Labor Productivity: Is There a Better Way?" by Dr. Tong Zhao, PE, PSP; and J. Mark Dungan appeared in "The Construction Lawyer," Journal of the ABA Forum on Construction Law, Volume 35, Number 2, Spring 2015. Download the full article in pdf format.


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Cory Milburn

Photo of Cory MilburnCory Milburn, MBA, CFCC, PSP, has experience guiding clients through management optimization, risk mitigation and the resolution of challenging situations in the construction industry. His expertise evolved from various roles in expert-level claims development and defense strategy. Mr. Milburn has created and directed training for world-renowned construction and consulting companies, focusing on how to develop effective processes in a limited resource environment..

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