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Distefano v. KW Solar Solutions, Inc.

Superior Court of Delaware

June 27, 2019


          Submitted Date: March 15, 2019

         Upon Defendants KW Solar Solutions, Inc., and Dale Wolf's Motion to Exclude Plaintiffs' Expert DENIED.

          Blake A. Bennett, Esquire, Christopher H. Lee, Esquire, Cooch and Taylor, P.A., Wilmington, Delaware, Attorney for Plaintiffs.

          Robert D. Goldberg, Esquire, Biggs and Battaglia, Wilmington, Delaware, Attorney for Defendants.

          Calvin L. Scott, Jr. Judge.


         Plaintiffs Domenic P. DiStefano and Debra DiStefano claim Negligent Construction/Installation, Breach of Contract, Breach of Express Warranty, Breach of Implied Warranty, and Violation of Consumer Fraud Act against Defendants KW Solar Solutions, Inc., ("Solar") and Dale Wolf.[1] Plaintiffs are the owners of a single family home located at 810 Cheltenham Road, Wilmington, Delaware (the "Property").[2]

         On around February 23, 2010, Plaintiffs, Wolf, and Solar entered into a contract whereby Wolf and Solar agreed to install solar panels on the roof of the Property. Solar and Wolf installed the solar panels on or about April 19, 2010.[3] By around early May 2016, water began to leak through the ceiling of the Property.[4]Upon further inspection, Plaintiffs discovered that a portion of their roof had rotted and observed substances around the leak that they suspected to be mold.[5] Thereafter, in the same month, Plaintiffs hired Steven Levy of Certified Mold Inspections, Inc., to "perform an assessment and testing of the impacted areas of the home to validate if an unusual mold condition existed within the property."[6]

         Plaintiffs allege that the solar panel installation process suffered from numerous, serious installation and construction defects and that these design and construction defects created a route for water to infiltrate the building envelope.[7] Plaintiffs assert that as a direct and proximate cause of Defendants' acts and omissions, the defects in the installation process have resulted and will result in severe water and moisture penetration, deterioration, unattractiveness, loss in marketability and market value, structural and physical instability, and other dangerous conditions.[8] The complaint requests damages in the amount necessary to repair the Property and properly compensate the Plaintiffs.[9]

         Plaintiffs seek to offer Mr. Levy as an expert witness to testify on how the leak in the attic led to elevated mold levels throughout the house thereby requiring remediation to prevent the mold from damaging the structure of the house.[10]

         At the Daubert hearing, Mr. Levy testified that upon arriving to the Property he noticed there was severe damage in the attic and observed mold all around the ventilation system.[11] Though he testified that there is always a possibility that the mold could have been caused by other sources within the house and admitted that he had not noted other potential sources in his Report, Mr. Levy stated that he did examine other areas of the attic to determine if there were other sources of mold that could have gotten into the attic HVAC system.[12] Mr. Levy testified that in his expert opinion, "it was very obvious . . . how the mold got there."[13]

         He further testified that he suspected there might be mold present on the first floor after the May 2016 inspection revealed that there was mold in the attic HVAC system.[14] Mr. Levy testified that, based on his training, he suspected the contamination may have spread to the basement HVAC system.[15] For this reason, Mr. Levy conducted a second inspection in June 2016 where it was confirmed there was mold in the basement HVAC system.[16] In both inspections, Mr. Levy determined the presence of mold from interpreting the lab results of the samples he gathered from the Property during his inspections. From the results, Mr. Levy determined that remediation was necessary based on his experience, training, and the industry standards.[17] Mr. Levy testified that he bases his reports on various guidance documents referenced in the Reports themselves, with one being the IICRC S52O.[18]

         Defendants argue that the Court should exclude Mr. Levy's testimony because Mr. Levy is not qualified to offer opinion testimony in this case. Specifically, Defendants contend that (1) Mr. Levy's Reports do not contain an opinion of reasonable professional probability or certainty;[19] (2) Mr. Levy's opinions lack any scientific basis;[20] and (3) Mr. Levy does not have the necessary knowledge, skill, experience, training, or education in the appropriate field.[21]

         Parties' Assertions

         Defendants first claim that Mr. Levy is not qualified in the relevant areas.[22] Defendants argue that because Mr. Levy "has no degrees from any academic institution relating to mold" that he is not qualified to testify that "the molds he believes to be present in the Plaintiffs' home pose a danger to them.[23] Defendants contend that Mr. Levy lacks the ability to test for mold himself because he "merely collects samples and then sends the samples away to a lab where they are tested."[24] For this reason, according to Defendants, Mr. Levy is qualified to "look for mold, but cannot express an opinion on the possible health effects of what he finds."[25] Defendants additionally argue Mr. Levy is neither qualified to opine as to when the observed mold condition began or how it originated, nor is he qualified to testify as to how mold can spread and contaminate other parts of the home. Moreover, Defendants contend that because Mr. Levy is admittedly not a medical professional, he is unable to make a correlation regarding whether or not the molds he found pose a health risk to Plaintiffs.[26] In support of this contention, Defendants direct the Court to three cases wherein the plaintiffs sought damages for physical illness associated with mold exposure.

         Plaintiffs respond that Mr. Levy has over sixteen years of experience as a mold inspector and remediator, has performed over 6, 000 mold specific investigations, is licensed in other states, and has a variety of certifications in and around building science mold inspection and testing.[27] In particular, Plaintiffs note that Levy has been certified by the National Association of Mold Professionals as a Certified Mold Inspector and Certified Mold Remediator since 2003.[28] Plaintiffs additionally assert that given there are no allegations of any medical effects from the mold, it is irrelevant that Mr. Levy would not be qualified to offer an opinion on the possible health risks to Plaintiffs caused by the presence of mold.[29]

         Defendants next assert that the Reports lack the requisite professional certainty or probability. Defendants claim that Mr. Levy's reports do not draw professional opinions, only that Mr. Levy conducted an inspection, drew samples, and sent those samples to independent laboratories for analysis.[30] Defendants reason that Mr. Levy cannot reach a reasonable professional conclusion based on his interpretation of the laboratory results because he did not conduct the laboratory analysis of the samples himself.[31] Further, Defendants claim that the language in Mr. Levy's report indicates there is no articulated standards for typical or permissible levels of mold contamination.[32] Defendants urge that since there is no standard by which one can measure the danger that the mold may pose, Plaintiffs must show that their well-being was endangered by showing that they actually suffered a mold induced injury, or providing a medical professional's conclusion that the slightly elevated mold level posed a danger to them.[33]

         Plaintiffs counter that Mr. Levy, as a certified mold inspector, followed industry standards to reach his conclusion that the leak caused by the solar panel installation led to the unacceptable levels of mold identified in his reports.[34]Plaintiffs argue that Mr. Levy's expertise is in understanding how to collect samples for testing and interpreting laboratory results.[35] Plaintiffs contend that Mr. Levy relied on controlling industry guidelines, his extensive training, and his sixteen years of experience to determine that the unusual levels of mold inside the Property required remediation.[36]

         Moreover, Plaintiffs argue that the absence of articulated standards or guidelines for interpreting results of fungal samples does not imply there is no basis to determine whether the house had excessive mold.[37] Plaintiffs assert that industry standards require experts in the field to compare the mold levels inside the house and outside the house in addition to reviewing whether the specific types of mold are pathogenic or toxic.[38] According to Plaintiffs, Mr. Levy followed this methodology and concluded that remediation is necessary.[39]

         Standard of Review[40]

         Delaware Rule of Evidence 702 (D.R.E. 702) governs the admissibility of expert testimony and provides as follows:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) The expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) The testimony is based upon sufficient facts or data;
(c) The testimony is the product of reliable principles and methods;
(d) The expert has reliably applied the principles and methods to the facts of the case.[41]

D.R.E. 702 is substantially similar to Federal Rule of Evidence 702, [42] which is governed by Daubert v. Merrell Dow Pharmaceuticals, Inc., [43] and Kumho Tire Co., Ltd. v. Carmichael.[44] In Daubert, the United States Supreme Court held that F.R.E. 702 requires the trial judge to act as a "gatekeeper" and determine whether the proffered expert testimony is not only relevant, but reliable.[45] The factors considered in this determination are "meant to be helpful, not definitive, and may or may not be pertinent depending on the nature of the issue, an expert's particular expertise, and the subject of the testimony."[46] Those factors include:

(1) whether a theory or technique has been tested;
(2) whether it has been subjected to peer review and publication;
(3) whether a technique had a high known or potential rate of error and whether there are standards controlling its operation; and
(4) whether the theory or technique enjoys general acceptance within a relevant scientific community.[47]

         The focus of the Daubert analysis does not concern the resulting conclusions but rather the principles and methodology used to form the expert's opinion.[48]

         In addition to the Daubert analysis, the Delaware Supreme Court created a five-prong test in determining the admissibility of scientific or technical expert's testimony. Therefore, this Court must also determine whether:[49]

1. The witness is qualified;[50]
2. The evidence is otherwise admissible, relevant, and reliable;[51]
3. The bases for the opinion are those reasonably relied upon by experts in the field;[52]
4. The specialized knowledge being offered will assist the trier of fact to understand the evidence or determine a fact in issue;[53] and
5. The evidence does not create unfair prejudice, confuse the issues, or mislead the jury.[54]

         "[T]he proponent of the proffered expert testimony bears the burden of establishing the relevance, reliability, and admissibility by a preponderance of the evidence."[55] However, the proponent must only demonstrate that the expert's opinions are reliable.[56] Thus, where an expert's opinion is challenged, "the trial judge must decide if the expert's testimony 'has a reliable basis in the knowledge and experience of the relevant discipline.'"[57]


         The Court finds that Mr. Levy is qualified to provide expert testimony regarding the presence and levels of mold in the areas of the Property that he tested during each inspection.[58] The standard set by D.R.E. 702 requires of an expert that their "scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue."[59] Delaware precedent likewise provides that a "witness is qualified as an expert by knowledge, skill, experience, training, or education."[60]

         According to Mr. Levy's curriculum vitae, he is a certified: (1) mold inspector and mold remediator with the National Association of Mold Professionals; (2) indoor environmentalist and mold remediator with the Indoor Air Quality Association; and (3) infrared thermographer with the Infraspection Institute. He is an active member of the Indoor Air Quality Association, and is a council certified microbial consultant and indoor environmentalist with the same. Additionally, Mr. Levy is a licensed mold assessor in the state of Florida and the state of New York.

         Mr. Levy is qualified to provide an expert opinion on mold assessment and inspection, not only based on his experience, but on his training and certifications in the relevant field.[61] However, under the facts of this case, the Court finds that Mr. Levy is not qualified to testify as to the remediation necessary to prevent the mold from damaging the Property's structure.[62] Plaintiffs have alleged causes of action sounding in Negligent Construction/Installation, Breach of Contract, Breach of Express Warranty, Breach of Implied Warranty, and Violation of Consumer Fraud Act against Defendants. Although Mr. Levy explained in his testimony that mold "breaks down dead matter" and thus "can destroy the structural integrity of the home, the ...

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