Submitted: July 16, 2019
E. Junge, Esquire Schmittinger & Rodriguez, P.A.
A. Logan, Esquire Post & Schell, P.C.
JEFFREY J CLARK JUDGE
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
their motions, Defendants first raise a challenge pursuant to
Daubert v. Merrell Dow 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.
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.
and Procedural Background and Arguments of the
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
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.
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
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.
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.
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.
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 ...