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Brandt v. Rokeby Realty Co.5/9/2005
On Defendants' Motions to Exclude the Expert Testimony of J. Frank Peter and Carl Borsari.
Granted as to J. Frank Peter. Denied in part as to Carl Borsari.
STATEMENT OF THE CASE
In this Personal Injury Action, Plaintiff Charles Brandt ("Brandt") seeks to recover for health and emotional problems he suffered because of the effects of mold growth in the ceiling tiles of the law office he occupied from 1990n a memorandum opinion dated September 8, 2004, this Court found that expert testimony was required on standard of care issues. Rather than issue summary judgment at that time, the Court provided Plaintiff time to acquire an expert who could testify to a commercial landlord's standard of care and another expert who could testify to a heating, ventilating and air conditioning ("HVAC") contractor's standard of care. Brandt offered two experts within the requisite time. Defendants Rokeby Realty Co. ("Rokeby"), the building's landlord, and Service Unlimited, Inc. ("Service"), the building's HVAC services provider at the time, have filed Motions in Limine to preclude the testimony of those experts.
1. Defendants' Motions to Exclude the Expert J. Frank Peter
Brandt's first expert is J. Frank Peter ("Mr. Peter"). Mr. Peter has a chemical engineering degree and a masters of science in chemical engineering. He works for Duffield Associates, Inc. ("Duffield"), a geosciences consulting firm, as a consultant. He is offered as an expert on the standard of care for HVAC contractors, HVAC maintenance contractors, and managers of commercial buildings from 1990 to 1995.
Rokeby claims that Mr. Peter is not qualified to testify as an expert regarding a landlord's standard of care. It takes issue with the fact that he did not set forth his opinion as to the applicable standard for Rokeby and whether it violated that standard. Mr. Peter made a "hasty attempt" in a letter to apply what he had learned about HVAC contractors to commercial landlords. Rokeby claims that Mr. Peter admittedly lacks experience in industrial hygiene and indoor air quality standards. Furthermore, it argues his testimony will not be based on sufficient data. In this regard, he conducted a six-question interview with only one person who had experience with building maintenance.
Service argues that Mr. Peter is not qualified to testify as an expert as to the standard of care for rendering HVAC professional services. It claims that the methods he used to determine the standard do not comport with Daubert v. Merrill-Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) ("Daubert"), and that Mr. Peter did not characterize Service's conduct as violating the standard of care. Mr. Peter testified that he had never been employed by an HVAC contractor, had never supervised employees of an HVAC contractor, had never undertaken any HVAC course work, and had never before testified as to the standard of care for an HVAC technician. Service points out that Mr. Peter has never been to the second floor office where Brandt worked from 1990 to 1995.
Service claims the method Mr. Peter used to determine the standard of care is not reliable, and more specifically, does not comport with Daubert, because it is not "sufficiently informed, testable and, in fact, verifiable on an issue to be determined at trial." Goodridge v. Hyster Co., 845 A.2d 498, 503 (Del. 2004). It argues that Mr. Peter has no firsthand knowledge of the HVAC contractor's standard of care. Instead, he conducted a survey, in which he attempted to contact and interview HVAC contractors and HVAC maintenance contractors in the Wilmington area. He was only successful in interviewing four contractors and two maintena
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