Marydale Preservation Associates, LLC v. Leon N. Weiner & Associates, Inc. ( 2022 )

SUPERIOR COURT
OF THE
STATE OF DELAWARE
ABIGAIL M. LEGROW LEONARD L. WILLIAMS JUSTICE CENTER
JUDGE 500 N. KING STREET, SUITE 10400
WILMINGTON, DELAWARE 19801
TELEPHONE (302) 255-0669
September 23, 2022
Mark L. Reardon, Esquire Patrick M. McGrory, Esquire
Jessica L. Reno, Esquire Tighe & Cottrell, P.A.
Eckert Seamans Cherin & Mellott, LLC 704 King Street, Suite 500
222 Delaware Avenue, 7th Floor One Customs House
Wilmington, DE 19801 P.O. Box 1031
Wilmington, DE 19899
Eric Scott Thompson, Esquire
Franklin & Prokopik Amy M. Taylor, Esquire
500 Creek View Rd, Suite 502 Heckler & Frabizzio
Newark, DE 19711 800 Delaware Avenue, Suite 200
P.O. Box 128
Wilmington, DE 19899
RE: Marydale Preservation Assocs., LLC, et al. v. Leon M. Weiner &
Assocs., Inc., et al.
C.A. No. N19C-05-348 AML (CCLD)
Dear Counsel,
Defendants in this construction defect case seek to exclude from trial the
expert opinions of David Hoffman, P.E. and Richard Donze, DO, MPH (collectively,
the “Experts”). I find the Experts’ conclusions satisfy the standards for admissibility
under Delaware law, and I therefore deny the motions. My reasoning follows.
Marydale Preservation Assocs., LLC, et al. v. Leon M. Weiner & Assocs., Inc., et al.
September 23, 2022
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Factual Background
The following opinion is being issued simultaneously with a memorandum
opinion granting in part and denying in part various motions for summary judgment
(the “Summary Judgment Opinion”). That opinion contains a detailed recitation of
the parties’ dispute and the various claims and defenses that will be presented at trial.
Accordingly, this letter opinion contains only a brief summary of the parties and the
Plaintiffs’ claims.
Marydale Preservation Associates, LLC (“Marydale”) owns the Marydale
Retirement Village in Newark, Delaware. Catholic Ministry to the Elderly, Inc.
(“CME” and collectively with Marydale, “Plaintiffs”) is Marydale’s Managing
Member and the property manager of the retirement village. The Marydale
Retirement Village consists of 108 housing units that are rented to low-income
senior citizens. From June 2016 to October 2017, the Marydale Retirement Village
underwent a significant renovation (the “Marydale Project”). In connection with
that renovation, Plaintiffs contracted with Defendants Leon N. Weiner & Associates,
Inc. (“Weiner”), LNWA Developers, LLC, LNW&A Construction Corp.
(collectively with LNWA Developers, “LNWA”), and Kitchen & Associates
Services, Inc. (“K&A”) for the development, design, and construction of the
Marydale Project. Defendant J.F. Sobieski Mechanical Contractors, Inc.
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September 23, 2022
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(“Sobieski”) was the subcontractor that installed the HVAC systems in all 108
residential units.
After the Marydale Project was complete, residents in some of the units began
reporting high humidity levels in their apartments and mold growth on their
belongings. By November 2018, mold growth was identified on furniture and
personal belongings in 38 of the 108 units.1 Plaintiffs contend the HVAC systems
defendants designed and installed for the Marydale Project were defective, leading
to the humidity and mold problems. In 2019, Plaintiffs filed this action seeking
damages for Defendants’ alleged breaches of contract and negligent design and
construction.2 This matter is scheduled for trial beginning October 17, 2022.
Along with their summary judgment motions, Defendants filed motions
challenging the admissibility of two expert opinions disclosed by Plaintiffs during
discovery. First, the defendants challenge the expert report and opinion of David
Hoffman, P.E., who is Plaintiffs’ standard of care expert. Defendants argue
Hoffman’s opinions should be excluded because they lack any reliable factual basis
and are not based on any articulated standard of care. Moreover, Defendants contend
1
Report of Harry Neill, CIH (Apr. 26, 2021) (Ex. B to Pls’ Br. in Opp. to Defs’ Mots. for Summ.
J.).
2
Plaintiffs asserted other claims, including misrepresentation, prohibited trade practices, breach
of warranties, and civil conspiracy. As set forth in the Summary Judgment Opinion, Plaintiffs
abandoned some of these claims and the Court has granted judgment in favor of Defendants as to
others. This case will proceed to trial on theories of negligence and breach of contract.
Marydale Preservation Assocs., LLC, et al. v. Leon M. Weiner & Assocs., Inc., et al.
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Plaintiffs failed to provide Defendants a list of the documents Hoffman reviewed in
forming his opinions, which violates Delaware Superior Court Civil Rule
26(b)(4)(A) and the “Expert Protocol” the parties agreed upon in their case
management order. The remedy for this, Defendants argue, should be the exclusion
of Hoffman’s testimony from trial. Second, Defendants argue the expert opinion of
Dr. Richard Donze, DO, MPH should be excluded because Dr. Donze’s opinions are
not relevant to the claims in this case and, even if his opinions are relevant, they are
not based on reliable facts.
Analysis
A. Hoffman’s proffered testimony satisfies DRE 702 and the Daubert
factors.
Delaware Rule of Evidence 702 controls the admissibility of expert testimony
and allows a witness to provide an expert opinion if his or her testimony survives a
five-step examination into whether:
(a) the witness is qualified as an expert by knowledge, skill, experience,
training, or education;
(b) the evidence is relevant;
(c) the expert’s opinion is based upon information reasonably relied upon by
experts in the particular field;
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(d) The expert testimony will assist the trier of fact to understand the evidence
or to determine a fact in issue; and
(e) the expert testimony will not create unfair prejudice or mislead the jury.3
Once expert testimony is challenged, the reviewing court must ensure that the
proffered testimony is both relevant and reliable.4 Evidence is relevant if it would
assist the fact finder in “understand[ing] the evidence or determin[ing] a fact in
issue.”5 Expert testimony is reliable if it is premised on technical or specialized
knowledge, which requires the testimony to be grounded in reliable methods and
procedures and “supported by appropriate validation – i.e., ‘good grounds,’ based
on what is known.”6 Ultimately, the Court will examine an expert’s opinion based
on the expert’s principles and methodology, not on the conclusions generated.7 The
party seeking to introduce expert testimony bears the burden of establishing its
admissibility by a preponderance of the evidence.8 There is a “strong preference”
for admitting expert opinions “when they will assist the trier of fact in understanding
the relevant facts or the evidence.”9
3
Bowen v. E.I. DuPont de Nemours & Co., Inc., 906 A.2d 787, 795 (Del. 2006).
4
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 597 (1993).
5
Id. at 591 (quoting Fed. R. Evid. 702).
6
Id. at 590.
7
Tumlinson v. Advanced Micro Devices, Inc., 81 A.3d 1264, 1269 (Del. 2013) (quoting Daubert,
509 U.S. at 595).
8
Bowen, 906 A.2d at 795.
9
Norman v. All About Women, P.A., 193 A.3d 726, 730 (Del. 2018).
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Hoffman is a professional engineer and has expertise in HVAC engineering
and design, among other construction-related areas. He has professional affiliations
in heating, plumbing, construction, and fire protection. Hoffman has served as an
expert witness and litigation consultant on a variety of construction-related issues,
including those relating to HVAC systems.10
In his report, Hoffman and his team performed cooling and heating load
calculations for four representative apartment units at the Marydale facility,
inspected the installed HVAC units, and compared the designed and installed units
to the load calculations.11 Based on Hoffman’s observations and calculations, he
opined (1) the HVAC units installed at the Marydale Project were oversized for the
anticipated cooling loads and contributed to high interior relative humidity and the
resulting mold growth; (2) the ductwork installed at the Marydale Project was not
properly sealed, causing duct leakage and contributing to high interior relative
humidity and resulting mold growth; and (3) the HVAC systems were not tested and
balanced by an independent testing and balancing firm despite contractual
requirements that such testing be performed.12 Shortly before Hoffman’s deposition,
10
Hoffman C.V., Ex. A to Pls’ Br. in Opp. to all Defs.’ Mots. to Preclude Testimony of David
Hoffman.
11
Report of David Hoffman, P.E., Ex. C to Pls’ Br. in Opp. to all Defs.’ Mots. to Preclude
Testimony of David Hoffman (hereinafter cited as “Hoffman Report”) at 10-12.
12
Id. at 12-15.
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Plaintiffs produced a chart that summarized the opinions contained in Hoffman’s 76-
page report (the “December 21st Chart”).
Defendants do not challenge Hoffman’s qualifications as an expert. They do,
however, argue that his opinions should be precluded because they lack a reliable
factual basis and are not based on any articulated standard of care. More specifically,
Defendants argue Hoffman opines that the oversized units would cause “short
cycling” and thereby lead to high relative indoor humidity, but he did not test any of
the units to determine whether short cycling actually was occurring. According to
Defendants, Hoffman also did not test the humidity levels in any of the units during
the cooling months and did not articulate any standards of care that he opines
Defendants violated.
DRE 702 mirrors the corresponding federal rule of evidence.13 As such,
Delaware courts find federal precedent, including Daubert v. Merrell Dow
Pharmaceuticals, Inc., a persuasive resource when making expert testimony
admissibility determinations.14 “The test of reliability is flexible,” and it is within
the Court’s discretion and responsibility to assess reliability according to each
13
See Tumlinson, 81 A.3d at 1269 (“Daubert and its progeny” are the “correct interpretation of
Delaware Rule of Evidence 702”) (citation omitted).
14
Daubert, 509 U.S. at 597.
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individual case.15 Rigid application of the Daubert factors16 is not appropriate in
every field of expertise.17 Rather, the test of reliability gives the reviewing court
“broad latitude when it decides how to determine reliability.”18
As explained in the Summary Judgment Opinion, the fact that Hoffman did
not gather his own data regarding the relative humidity levels in the residential units
or test whether the HVAC systems were short cycling is not a basis to exclude his
opinion as unreliable. Hoffman used and explained his methodology for calculating
heating and cooling loads for the units and provided those calculations in his report.
He based his opinion that there was high humidity on a number of items in the record,
including data gathered by other experts, the reports of the residents, and the
presence of mold. Experts are entitled to rely on information gathered by others to
form part of the basis for their opinion. Defendants’ criticisms of Hoffman’s
methodology or their contention that he should have conducted different or
additional analyses are matters that may be explored during cross-examination, but
they do not preclude the admission of his opinions at trial.
15
Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141 (1999).
16
Bowen, 906 A.2d at 794-95 (outlining the several factors identified in Daubert that a trial judge
might consider in his or her “gatekeeper”role when deciding whether an expert’s testimony “has a
reliable basis in the knowledge and experience of [the relevant] discipline.”).
17
See, e.g., Watkins v. Telsmith, Inc., 121 F.3d 984, 990 (5th Cir. 1997) (noting “[n]ot every
guidepost outlined in Daubert will necessarily apply to expert testimony based on engineering
principles and practical experience”).
18
Kumho, 526 U.S. at 141-42.
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As to Defendants’ contention that Hoffman failed to articulate a standard of
care based on the applicable contract or customs within the industry, Hoffman’s
report, read as a whole, identifies the standards he opines that Defendants failed to
follow. Although he does not use the phrase “standard of care,” Hoffman identifies
the specific contractual or industry standards that he believes applied to Defendants
but were not met in this case.19 The December 21st Chart summarizes those
standards in a more consolidated fashion. Delaware law does not require an expert
to invoke “magic words” or to articulate a standard of care “with a high degree of
legal precision.”20
B. Exclusion of Hoffman’s opinion is not the proper remedy for Plaintiffs’
failure to comply strictly with Rule 26(b)(4)(A) and the Expert Protocol.
Defendants separately argue Hoffman’s testimony should be excluded in its
entirety because Plaintiffs failed to provide a list of all the items Hoffman considered
in forming his opinion. The expert protocol agreed upon by the parties in the case
management order required each side to produce “a list of the documents reviewed
by each testifying expert in his capacity as a testifying expert in this case.”21
Defendants contend they cannot adequately challenge Hoffman’s testimony without
this information because, when presented with a document at his deposition that
19
See Summary Judgment Opinion, September 23, 2022, § II(B).
20
Green v. Weiner, 766 A.2d 492, 495 (Del. 2001).
21
D.I. 165, Ex. A, § C(1).
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contradicted his opinions or report, Hoffman testified that he reviewed the document
and it did not change his opinion, while refusing to comment more specifically on
it.
Plaintiffs concede they did not provide the list of documents required by the
case management order with respect to Hoffman’s opinions. But Plaintiffs did
represent to Defendants that they provided the entire record to Hoffman and
confirmed that the documents he relied upon in forming his opinions are the
documents listed in his March 2020 report. Although the Court does not condone
Plaintiffs’ failure to provide this information in a timely manner, Defendants have
not demonstrated that they were prejudiced to a degree that would warrant exclusion
of Plaintiffs’ expert, which effectively would preclude Plaintiffs from proving their
claims.22 Any potential prejudice was ameliorated by Plaintiffs’ willingness to make
Hoffman available for additional days for deposition.
C. Donze’s opinions are relevant and based on reliable information.
Defendants also moved to exclude Dr. Donze’s testimony on the basis that his
opinions are not relevant to the issues in this case and are not based on reliable facts.
Dr. Donze is board-certified in Occupational and Environmental Medicine and was
asked to opine about “the need for [indoor air quality] remediation [at the Marydale
22
See Keener v. Isken, 58 A.3d 407, 409 (Del. 2013) (noting “the strong policy in favor of deciding
cases on the merits.”).
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property] with respect to the actual and potential health effects” on residents.23 In
forming his opinions, Dr. Donze reviewed (1) the complaint, (2) a report prepared
by – and selected sources referenced by – the occupational and environmental doctor
originally hired by Plaintiffs, (3) the reports prepared by Plaintiffs’ industrial
hygienist in this matter; and (4) “position statements and reports from . . . public
health and independent agencies.”24 Dr. Donze opines that “to mitigate existing and
prevent future respiratory and other health effects associated with indoor dampness
and potentially related to amplified microbial growth (especially fungal),” the indoor
air quality at the Marydale Project should be “remediated and then normalized and
maintained.”25 Dr. Donze states that moldy building materials should be cleaned or
replaced, HVAC systems should be monitored and maintained, and the HVAC
systems’ design and operation should meet established indoor air quality standards.26
Defendants first contend Dr. Donze’s report is not relevant because there is
no allegation that the Marydale residents suffered personal injuries relating to the
high relative humidity levels or mold growth, and the jury therefore could be
confused or misled by Dr. Donze’s opinion. This argument lacks persuasive force.
23
K&A’s Br. in Supp. of Mot. in limine to Preclude Testimony of Donze, Ex. 1 (hereinafter cited
as “Donze Report”) at 1.
24
Donze Report at 1.
25
Id. at 5.
26
Id.
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Defendants continue to dispute both liability and damages in this case and
specifically dispute whether all the remediation and repairs that Plaintiffs undertook
at the property were reasonable and necessary. At times, Defendants have
characterized Plaintiffs’ remediation measures as “extreme.” Dr. Donze opines that
all mold growth in residential spaces is harmful and must be remediated
immediately. Given Defendants’ position regarding Plaintiffs’ claimed damages,
this testimony is relevant and is unlikely to confuse or mislead the jury.
Defendants separately argue Dr. Donze’s opinions are not admissible because
he relied in part on a report issued by an industrial hygienist retained by Plaintiffs.
That report contains hearsay statements regarding “concerns” about the residents’
health. Defendants contend the record contains no reliable evidence that any
resident suffered an adverse reaction or otherwise expressed specific health concerns
regarding high humidity or mold. Defendants assert an expert may not rely
exclusively on inadmissible hearsay to support his opinion. Although the Court
agrees that Dr. Donze may not relate inadmissible hearsay to the jury under the guise
of expert opinion, this is not what Plaintiffs intend to do in this case. Plaintiffs
confirmed at oral argument that Dr. Donze will not testify regarding any individual
resident’s health concerns or conditions and instead will refer only generally to the
residents’ susceptibility based on their age. Dr. Donze is a practicing physician who
is relying, among other things, on treatises and other reliable evidence to form his
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opinion regarding the residents’ age-based susceptibility. His opinion can be offered
without reference to the hearsay statements to which Defendants object, and the
motion to exclude his testimony on that basis therefore is denied.
Conclusion
For the foregoing reasons, Defendants’ Motion in Limine to Preclude the
Testimony of David Hoffman, P.E. and Motion in Limine to Preclude the Testimony
of Richard Donze, DO, MPH are DENIED.
IT IS SO ORDERED.
Sincerely,
/s/ Abigail M. LeGrow
Abigail M. LeGrow, Judge