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


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  •                                  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
    Page 2
    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.
    Marydale Preservation Assocs., LLC, et al. v. Leon M. Weiner & Assocs., Inc., et al.
    September 23, 2022
    Page 3
    (“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.
    September 23, 2022
    Page 4
    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;
    Marydale Preservation Assocs., LLC, et al. v. Leon M. Weiner & Assocs., Inc., et al.
    September 23, 2022
    Page 5
    (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).
    Marydale Preservation Assocs., LLC, et al. v. Leon M. Weiner & Assocs., Inc., et al.
    September 23, 2022
    Page 6
    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.
    Marydale Preservation Assocs., LLC, et al. v. Leon M. Weiner & Assocs., Inc., et al.
    September 23, 2022
    Page 7
    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
    .
    Marydale Preservation Assocs., LLC, et al. v. Leon M. Weiner & Assocs., Inc., et al.
    September 23, 2022
    Page 8
    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
    .
    Marydale Preservation Assocs., LLC, et al. v. Leon M. Weiner & Assocs., Inc., et al.
    September 23, 2022
    Page 9
    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).
    Marydale Preservation Assocs., LLC, et al. v. Leon M. Weiner & Assocs., Inc., et al.
    September 23, 2022
    Page 10
    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.”).
    Marydale Preservation Assocs., LLC, et al. v. Leon M. Weiner & Assocs., Inc., et al.
    September 23, 2022
    Page 11
    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.
    Marydale Preservation Assocs., LLC, et al. v. Leon M. Weiner & Assocs., Inc., et al.
    September 23, 2022
    Page 12
    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
    Marydale Preservation Assocs., LLC, et al. v. Leon M. Weiner & Assocs., Inc., et al.
    September 23, 2022
    Page 13
    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