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Town of Townsend v. Grassbusters, Inc.

Superior Court of Delaware

August 1, 2019

Town of Townsend
Grassbusters, Inc., & Aegis Security Insurance Company

          Submitted: July 16, 2019

          Gary E. Junge, Esquire Schmittinger & Rodriguez, P.A.

          Paul A. Logan, Esquire Post & Schell, P.C.



         This letter provides the Court's decision regarding three defense motions in limine. Trial begins on August 12, 2019 and involves a contract and breach of warranty suit. Plaintiff Town of Townsend claims for repair and replacement costs for an allegedly defective sidewalk that Defendant Grassbusters, Inc. installed in town limits in 2014. Defendant Aegis Insurance Company issued a performance bond for the project, and Townsend sues Aegis in its capacity as a surety.

         In their motions, Defendants first raise a challenge pursuant to Daubert v. Merrell Dow[1] regarding the opinion testimony offered by Townsend's liability expert, Frank Palise. Second, Defendants move to exclude references to a report authored by Dr. Hadi Rashidi, who was a co-worker of Mr. Palise, because Dr. Rashidi will not testify at trial. Third, Defendants seek to exclude evidence of the amount of damages suffered by Townsend because Townsend has no damages expert.

         For the reasons discussed below, Defendants' motion to exclude Mr. Palise's testimony is DEFERRED until trial. Likewise, their motion to exclude references to Mr. Rashidi's report is also DEFERRED until trial. Finally, Townsend proffers no expert testimony regarding the reasonable costs necessary to repair the sidewalk. It also identifies no otherwise admissible evidence that would be legally sufficient to support a damage award to a reasonable degree of certainty. As a result, Defendants' motion to exclude evidence regarding damages must be GRANTED.

         Factual and Procedural Background and Arguments of the Parties

         In 2013, Townsend sought bids for town improvements that included improvements to their curbs and sidewalks. It awarded Grassbusters the bid in the amount of $510, 755. Grassbusters and Aegis then entered into a performance/payment bond in that amount. In its contract with Townsend, Grassbusters warranted that all work would be free from defects and that it would correct any defects in workmanship.

         Grassbusters then performed the work in 2014. On May 19, 2015, Townsend's Mayor formally notified Grassbusters that portions of the concrete had rapidly deteriorated. He demanded that Grassbusters replace the defective portions. In support of the Mayor's demand, Townsend's contract engineer, Owen Hyne, prepared a sidewalk "inventory" and drafted an estimate for needed repairs. Townsend's Mayor then sent this estimate to Grassbusters. The repair estimate totaled $158, 128.85.

         Townsend filed suit in December 2015. It then hired Advanced Infrastructure Design ("AID") to perform material testing. Based in large part on an analysis performed by a third party, CTL Group, Dr. Rashidi of AID drafted a November 22, 2016 memorandum. In it, he offered opinions regarding the defective nature of Grassbuster's work. His opinions included that "the sampled concrete has excellent compressive strength at the center but is very weak and permeable within the top 0.6 in. from the surface." Dr. Rashidi based his opinions, in large part, upon CTL Group's analysis.

         In discovery, Townsend identified a separate employee of Advanced Infrastructure Design, Frank Palise, as its sole expert witness. He authored a May 3, 2017 report that addressed liability related issues only. Mr. Palise's report in large part mirrored Dr. Rashidi's report. In Mr. Palise's report, he provided his general liability opinions to a "reasonable degree of scientific certainty." Townsend, however, identified no expert witness that will offer opinions regarding (1) the reasonable repair costs of the defective portions of the sidewalk, (2) what portions of the sidewalk need to be repaired, or (3) the scope of the necessary work.

         Prior to trial, Defendants move to exclude Mr. Palise's opinions from evidence. They argue that he did not reach independent conclusions but rather parroted Dr. Rashidi's opinions. Since Dr. Rashidi will not testify, Defendants argue that Mr. Palise should be precluded from offering the opinions of another expert. Furthermore, Defendants challenge Mr. Palise's qualifications, the bases for his opinions, and whether his opinions meet Daubert standards as set forth in DRE 702.

         Second, Defendants move to exclude any reference to Dr. Rashidi's report and the opinions recited in the report on primarily hearsay grounds. Defendants further argue that because Mr. Palise did not perform independent testing or analysis, excluding Dr. Rashidi's report requires excluding Mr. Palise's liability opinions.

         Third, Defendants seek to preclude Townsend from offering evidence regarding damages. They emphasize that Townsend has no damages expert. Defendants argue that proving the repair cost for removal and replacement of defective concrete, particularly concrete that is only defective at its top .6 inches, requires specialized knowledge and skill. Secondarily, Defendants argue that even if Mr. Hyne, who authored the ...

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