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

• Court: Superior Court of Delaware
• Decided: September 23, 2022
• Docket: N19C-05-348 AML CCLD
• Status: Published

Opinion

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