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Wiercinski v. Brescia Properties, LLC

Superior Court of Delaware, New Castle

January 15, 2015

STANLEY R. WIERCINSKI, Plaintiff,
v.
BRESCIA PROPERTIES, LLC, Defendant.

Submitted: October 13, 2014

Upon Defendant Brescia Properties Motion to Exclude the Testimony of J. Frank Peter M.S. Based on his Supplemental Report: GRANTED.

Donald L. Gouge, Jr., Esquire, Donald L. Jr. LLC, Attorney for Plaintiff.

Arthur D Kuhl, Esquire (argued), Reger Rizzo & Darnall LLP, Cheryl Ann Ward, Esquire, Franklin & Prokopik, Wilmington, Attorneys for Defendant.

OPINION

JAN R. JURDEN, PRESIDENT JUDGE

I. INTRODUCTION

Before the Court is Defendant's Motion to Exclude the Testimony of J. Frank Peter M.S ("Peter"). The lawsuit giving rise to this motion relates to whether the seller of a residential property properly disclosed water intrusion and damage to the Plaintiff. Defendant Brescia Properties, LLC ("Brescia") argues that Peter's opinions regarding whether there was water intrusion and damage at the time Brescia owned and sold the property cannot withstand the Daubert standard for admissibility of expert testimony.

II. FACTS

On July 16, 2007, Brescia purchased a residential property ("the Property"), with the intention of "fixing it up" to flip and sell it.[1] On December 14, 2007, Plaintiff Stanley R. Wiercinski ("Plaintiff") and Brescia entered into a standard form Agreement of Sale ("Sales Agreement").[2] As part of the Sales Agreement, Brescia executed a Sellers' Disclosure.

Plaintiff alleges that the real estate listing for the Property prepared by Brescia's agent stated that the Property was "just like new, " "totally renovated, " and that a new roof was installed in 2007.[3]

After experiencing a series of water leaks, Plaintiff filed a Complaint on December 1, 2011, asserting claims of breach of contract, fraud and misrepresentation, negligent misrepresentation, and breach covenant of good faith and fair dealing.[4] Plaintiff alleges that he relied on Brescia's representations and the Sellers' Disclosure and Brescia failed to disclose known past and present water leakage.[5] According to Plaintiff, he "discovered many instances where 'renovations and rehabilitation' took place and covered up much more extensive water problems with the Property."[6]

At trial, Plaintiff intends to rely on Peter's testimony to establish the damage and cause of the wood rot, and that the wood rot was present when Brescia renovated and sold the Property to Plaintiff.[7] Peter, who has a chemical engineering degree and a masters of science in chemical engineering, [8] works for Cogent Building Diagnostics conducting building failure forensics, repair scope development, construction review and expert witness services.[9] Peter has opined that "[t]he appearance of wood rot in multiple balcony areas, door framing and window frames at the [Property] supports the opinion that these areas of water damage existed prior to the purchase of the townhouse by [Plaintiff]."[10]

III. PARTIES' CONTENTIONS

Brescia argues that Peter's testimony cannot withstand a Daubert challenge because Peter's theory for dating wood rot is neither subject to scientific testing nor based on reliable scientific principles.[11] According to Brescia, Peter fails to provide any scientific parameters underlying his theory of dating wood rot and admits in his supplemental report that there are no publications that support his opinion in this regard.[12] Although Peter asserts that "[i]t is common knowledge in the industry that the rate of water damage depends on a combination of factors that include what fungi are involved, the material that is being damaged, the water exposure history, the temperature history, sun exposure and air movement, "[13]Pet ...


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