Expert Statements and the Distrust of Their Impartiality – An In-Depth Review of Current Case Law
Classification of the Term “Shoddy Workmanship” in the Context of Expert Reports
In civil proceedings, the expert often plays a key role. Their factual and objective assessment of technical and specialized disputes frequently lays the foundation for the court’s decision-making. Experts are generally subject to strict demands regarding their objectivity and neutrality. If they are accused of acting with bias, parties involved in the proceedings can raise objections based on partiality. This becomes particularly sensitive when the expert’s choice of words in their report appears emotionally charged or colloquial terms such as “shoddy workmanship” are used.
Recently, the Higher Regional Court of Rostock (decision of 18.09.2020 – 4 W 30/20) had to determine whether the use of the term “shoddy workmanship” by a court-appointed expert could justify distrust in their impartiality. The issue was to assess to what extent evaluations or sharp formulations in expert reports can justify concerns about bias.
The Relevant Principles for Rejecting Experts Due to Bias
The Objective Potential for Distrust
The rejection of an expert on grounds of bias (§ 406 para. 1 ZPO) is not a tool to refute unwanted or disadvantageous expert opinions. Rather, the crucial factor is whether, from the perspective of a reasonable party and considering all circumstances, a justified doubt arises about the expert’s impartiality and neutrality. The threshold here is set high: objectively comprehensible circumstances, not merely subjective discomfort, are decisive.
Choice of Words and Tone in the Court Expert Report
In the present case, the party complained that the term “shoddy workmanship” gave the impression that the expert had internally taken a firm position and lost the necessary distance to the dispute. However, the OLG Rostock clearly differentiates between polemical, unobjective wording as an indication of genuine partiality and a concise, pointed description of serious execution defects. The court relies on the principle that an expert may also use clear, technically conventional terms provided they are supported by objective factual references.
OLG Rostock: “Shoddy Workmanship” as a Fact-Based Assessment
Contextualization of the Criticism
The OLG Rostock’s assessment was based on the specific circumstances of the individual case. The expert had described construction defects in his report as so serious that the chosen term “shoddy workmanship” constituted a concise summary of the identified technical deficiencies. The court saw this not as a fundamental criticism of the parties but rather as a professional classification of the detected execution error. Ultimately, the wording did not justify concerns about bias.
Distinction from Impermissible Value Judgments
The court emphasized that sharp but substantively justified criticism must not be confused with improper value judgments. Partiality would be assumed if the expert used disparaging or insulting terms without sufficient cause. Here, however, it could be derived from the overall context of the report that the term “shoddy workmanship” was based on well-founded professional findings.
Conclusions for Handling Bias Objections in Construction Litigation
Consequences for Disputes with a Technical Background
The decision once again underlines that disputes concerning construction defects typically involve high emotional and economic stakes and that objective assessment by expert third parties is often central. Nevertheless, the procedure requires detachment from any personally or financially motivated distrust and recognition of only clearly demonstrable objective grounds.
Clarification of Procedural Security
For companies, investors, and private individuals involved in construction law disputes, this decision provides a certain degree of clarity regarding the expected procedural security: Not every sharp or colloquial remark by the expert calls their objectivity into question. Only when such wording is placed in a context suggesting the author’s subjectivity can a successfully substantiated objection due to concerns of bias even be considered.
Summary and Further Considerations
The current ruling of the OLG Rostock makes clear that the choice of concise technical terms in expert reports—even if linguistically pointed—alone does not constitute grounds for rejection under bias criteria, provided there is sufficient technical foundation. Consequently, the threshold for a successful objection due to bias against court-appointed experts remains high. Companies and private parties are advised to carefully evaluate the requirements for such objections and to keep the objective criteria in focus.
If uncertainties arise in connection with legal proceedings regarding the impartiality of experts, the chances and risks of motions for bias, or strategic litigation management, a thorough and independent assessment can be of significant advantage. For further questions on the constructive support of disputes and court proceedings, the teams at MTR Legal offer comprehensive and tailored assistance with their many years of experience in the field of litigation.
