IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY
STANLEY R. WIERCINSKI, ) ) Plaintiff, ) ) v. ) ) BRESCIA PROPERTIES, LLC, ) C.A. No. N11C-12-015 ) Defendant. ) )
OPINION
Upon Defendant Brescia Properties Motion to Exclude the Testimony of J. Frank Peter M.S. Based on his Supplemental Report: GRANTED.
Date Submitted: October 13, 2014 Date Decided: January 15, 2015
Donald L. Gouge, Jr., Esquire, Donald L. Jr. LLC, 800 N. King Street, #303, Wilmington, DE 19801, Attorney for Plaintiff.
Arthur D Kuhl, Esquire (argued), Reger Rizzo & Darnall LLP, 1523 Concord Pike, Suite 200, Brandywine Plaza East, Wilmington, DE 19803, Cheryl Ann Ward, Esquire, Franklin & Prokopik, 300 Delaware Avenue, Suite 1210, Wilmington, DE 19801, Attorneys for Defendant. I. INTRODUCTION
Before the Court is Defendant’s Motion to Exclude the Testimony of J.
Frank Peter M.S (“Peter”). The lawsuit giving rise to this motion relates to whether
the seller of a residential property properly disclosed water intrusion and damage
to the Plaintiff. Defendant Brescia Properties, LLC (“Brescia”) argues that Peter’s
opinions regarding whether there was water intrusion and damage at the time
Brescia owned and sold the property cannot withstand the Daubert standard for
admissibility of expert testimony.
II. FACTS
On July 16, 2007, Brescia purchased a residential property (“the Property”),
with the intention of “fixing it up” to flip and sell it. 1 On December 14, 2007,
Plaintiff Stanley R. Wiercinski (“Plaintiff”) and Brescia entered into a standard
form Agreement of Sale (“Sales Agreement”). 2 As part of the Sales Agreement,
Brescia executed a Sellers’ Disclosure.
Plaintiff alleges that the real estate listing for the Property prepared by
Brescia’s agent stated that the Property was “just like new,” “totally renovated,”
and that a new roof was installed in 2007. 3
1 Compl. ¶ 3 (Trans. ID. 41161944). 2 Id. at ¶ 5. 3 Id. at ¶ 7. 2 After experiencing a series of water leaks, Plaintiff filed a Complaint on
December 1, 2011, asserting claims of breach of contract, fraud and
misrepresentation, negligent misrepresentation, and breach covenant of good faith
and fair dealing.4 Plaintiff alleges that he relied on Brescia’s representations and
the Sellers’ Disclosure and Brescia failed to disclose known past and present water
leakage. 5 According to Plaintiff, he “discovered many instances where
‘renovations and rehabilitation’ took place and covered up much more extensive
water problems with the Property.” 6
At trial, Plaintiff intends to rely on Peter’s testimony to establish the damage
and cause of the wood rot, and that the wood rot was present when Brescia
renovated and sold the Property to Plaintiff. 7 Peter, who has a chemical
engineering degree and a masters of science in chemical engineering, 8 works for
Cogent Building Diagnostics conducting building failure forensics, repair scope
development, construction review and expert witness services.9 Peter has opined
that “[t]he appearance of wood rot in multiple balcony areas, door framing and
4 See Compl. (Trans. ID. 41161944). 5 Id. ¶¶ 8, 17. 6 Id. ¶¶ 14–16. 7 Motion Exclude Testimony J. Frank Peter Ex. A, at 3–4 (“Mot. Exclude”) (Trans. ID. 55010328). 8 Plaintiff’s Response in Opposition to Defendant’s Motion to Exclude the Testimony of J. Frank Peter Ex. 1, at 2 (“Pl.’s Opp. Mot. Exclude”) (Trans. ID. 55252339). 9 Id. 3 window frames at the [Property] supports the opinion that these areas of water
damage existed prior to the purchase of the townhouse by [Plaintiff].” 10
III. PARTIES’ CONTENTIONS
Brescia argues that Peter’s testimony cannot withstand a Daubert challenge
because Peter’s theory for dating wood rot is neither subject to scientific testing
nor based on reliable scientific principles. 11 According to Brescia, Peter fails to
provide any scientific parameters underlying his theory of dating wood rot and
admits in his supplemental report that there are no publications that support his
opinion in this regard. 12 Although Peter asserts that “[i]t is common knowledge in
the industry that the rate of water damage depends on a combination of factors that
include what fungi are involved, the material that is being damaged, the water
exposure history, the temperature history, sun exposure and air movement,”13
Peter fails to identify what fungi he observed, the material that was damaged, the
water exposure history, the temperature history, [the] sun exposure, and [the] air
movement. 14
In response, Plaintiff contends that Peter has 40 years of consulting
experience in engineering and has conducted hundreds of home inspections,
10 Mot. Exclude Ex. A, at 4 (Trans. ID. 55010328). 11 Mot. Exclude ¶ 7. 12 Id. ¶¶ 4–7. 13 Id. ¶ 4. 14 Id. ¶¶ 5–6. 4 including some with water intrusion issues. 15 Plaintiff asserts that due to Peter’s
background and training, he can opine with a reasonable degree of probability in
his field that that the wood rot in question existed in 2007 when Brescia sold the
Property to Plaintiff.16 According to Plaintiff, Peter’s testimony will assist the trier
of fact to understand and determine what Brescia knew about the water damage
and when he knew it.
IV. DISCUSSION
The admissibility of expert testimony is governed by Federal Rule of
Evidence 702 and Delaware Rule of Evidence 702. The Delaware Supreme Court
has adopted the United States Supreme Court’s decision in Daubert v. Merrell
Dow Pharmaceuticals, Inc., 17 which requires the trial judge to act as a gatekeeper
and determine whether the expert testimony is relevant and reliable and whether it
will assist the trier of fact. 18 “To help determine whether an expert’s principles and
methodology are rooted in science and derived from the scientific method,”19
Daubert identifies several factors that may be useful to a trial judge acting as the
gatekeeper:
(1) whether a theory or technique has been tested;
(2) whether it has been subjected to peer review and publication; 15 Pl.’s Opp. Mot. Exclude ¶ 6. 16 Id. ¶ 7. 17 509 U.S. 579 (1993). 18 Bowen v. E.I. DuPont de Nemours & Co., 906 A.2d 787, 794–95 (Del. 2006). 19 Id. at 794. 5 (3) whether a technique had a high known or potential rate of error and whether there are standards controlling its operation; and
(4) whether the theory or technique enjoys general acceptance within a relevant scientific community. 20
In addition to the Daubert criteria, Delaware Rule of Evidence 702 “imposes
a special obligation upon the trial judge to ‘ensure that any and all scientific
testimony . . . is not only relevant but reliable.’” 21 In determining whether an
expert opinion is admissible, the Court must consider whether: (1) the witness is
qualified as an expert by knowledge, skill experience, training or education; (2) the
evidence is relevant; (3) the expert's opinion is based upon information reasonably
relied upon by experts in the particular field; (4) the expert testimony will assist the
trier of fact to understand the evidence or to determine a fact in issue; and (5) the
expert testimony will not create unfair prejudice or confuse or mislead the jury. 22
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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY
STANLEY R. WIERCINSKI, ) ) Plaintiff, ) ) v. ) ) BRESCIA PROPERTIES, LLC, ) C.A. No. N11C-12-015 ) Defendant. ) )
OPINION
Upon Defendant Brescia Properties Motion to Exclude the Testimony of J. Frank Peter M.S. Based on his Supplemental Report: GRANTED.
Date Submitted: October 13, 2014 Date Decided: January 15, 2015
Donald L. Gouge, Jr., Esquire, Donald L. Jr. LLC, 800 N. King Street, #303, Wilmington, DE 19801, Attorney for Plaintiff.
Arthur D Kuhl, Esquire (argued), Reger Rizzo & Darnall LLP, 1523 Concord Pike, Suite 200, Brandywine Plaza East, Wilmington, DE 19803, Cheryl Ann Ward, Esquire, Franklin & Prokopik, 300 Delaware Avenue, Suite 1210, Wilmington, DE 19801, Attorneys for Defendant. I. INTRODUCTION
Before the Court is Defendant’s Motion to Exclude the Testimony of J.
Frank Peter M.S (“Peter”). The lawsuit giving rise to this motion relates to whether
the seller of a residential property properly disclosed water intrusion and damage
to the Plaintiff. Defendant Brescia Properties, LLC (“Brescia”) argues that Peter’s
opinions regarding whether there was water intrusion and damage at the time
Brescia owned and sold the property cannot withstand the Daubert standard for
admissibility of expert testimony.
II. FACTS
On July 16, 2007, Brescia purchased a residential property (“the Property”),
with the intention of “fixing it up” to flip and sell it. 1 On December 14, 2007,
Plaintiff Stanley R. Wiercinski (“Plaintiff”) and Brescia entered into a standard
form Agreement of Sale (“Sales Agreement”). 2 As part of the Sales Agreement,
Brescia executed a Sellers’ Disclosure.
Plaintiff alleges that the real estate listing for the Property prepared by
Brescia’s agent stated that the Property was “just like new,” “totally renovated,”
and that a new roof was installed in 2007. 3
1 Compl. ¶ 3 (Trans. ID. 41161944). 2 Id. at ¶ 5. 3 Id. at ¶ 7. 2 After experiencing a series of water leaks, Plaintiff filed a Complaint on
December 1, 2011, asserting claims of breach of contract, fraud and
misrepresentation, negligent misrepresentation, and breach covenant of good faith
and fair dealing.4 Plaintiff alleges that he relied on Brescia’s representations and
the Sellers’ Disclosure and Brescia failed to disclose known past and present water
leakage. 5 According to Plaintiff, he “discovered many instances where
‘renovations and rehabilitation’ took place and covered up much more extensive
water problems with the Property.” 6
At trial, Plaintiff intends to rely on Peter’s testimony to establish the damage
and cause of the wood rot, and that the wood rot was present when Brescia
renovated and sold the Property to Plaintiff. 7 Peter, who has a chemical
engineering degree and a masters of science in chemical engineering, 8 works for
Cogent Building Diagnostics conducting building failure forensics, repair scope
development, construction review and expert witness services.9 Peter has opined
that “[t]he appearance of wood rot in multiple balcony areas, door framing and
4 See Compl. (Trans. ID. 41161944). 5 Id. ¶¶ 8, 17. 6 Id. ¶¶ 14–16. 7 Motion Exclude Testimony J. Frank Peter Ex. A, at 3–4 (“Mot. Exclude”) (Trans. ID. 55010328). 8 Plaintiff’s Response in Opposition to Defendant’s Motion to Exclude the Testimony of J. Frank Peter Ex. 1, at 2 (“Pl.’s Opp. Mot. Exclude”) (Trans. ID. 55252339). 9 Id. 3 window frames at the [Property] supports the opinion that these areas of water
damage existed prior to the purchase of the townhouse by [Plaintiff].” 10
III. PARTIES’ CONTENTIONS
Brescia argues that Peter’s testimony cannot withstand a Daubert challenge
because Peter’s theory for dating wood rot is neither subject to scientific testing
nor based on reliable scientific principles. 11 According to Brescia, Peter fails to
provide any scientific parameters underlying his theory of dating wood rot and
admits in his supplemental report that there are no publications that support his
opinion in this regard. 12 Although Peter asserts that “[i]t is common knowledge in
the industry that the rate of water damage depends on a combination of factors that
include what fungi are involved, the material that is being damaged, the water
exposure history, the temperature history, sun exposure and air movement,”13
Peter fails to identify what fungi he observed, the material that was damaged, the
water exposure history, the temperature history, [the] sun exposure, and [the] air
movement. 14
In response, Plaintiff contends that Peter has 40 years of consulting
experience in engineering and has conducted hundreds of home inspections,
10 Mot. Exclude Ex. A, at 4 (Trans. ID. 55010328). 11 Mot. Exclude ¶ 7. 12 Id. ¶¶ 4–7. 13 Id. ¶ 4. 14 Id. ¶¶ 5–6. 4 including some with water intrusion issues. 15 Plaintiff asserts that due to Peter’s
background and training, he can opine with a reasonable degree of probability in
his field that that the wood rot in question existed in 2007 when Brescia sold the
Property to Plaintiff.16 According to Plaintiff, Peter’s testimony will assist the trier
of fact to understand and determine what Brescia knew about the water damage
and when he knew it.
IV. DISCUSSION
The admissibility of expert testimony is governed by Federal Rule of
Evidence 702 and Delaware Rule of Evidence 702. The Delaware Supreme Court
has adopted the United States Supreme Court’s decision in Daubert v. Merrell
Dow Pharmaceuticals, Inc., 17 which requires the trial judge to act as a gatekeeper
and determine whether the expert testimony is relevant and reliable and whether it
will assist the trier of fact. 18 “To help determine whether an expert’s principles and
methodology are rooted in science and derived from the scientific method,”19
Daubert identifies several factors that may be useful to a trial judge acting as the
gatekeeper:
(1) whether a theory or technique has been tested;
(2) whether it has been subjected to peer review and publication; 15 Pl.’s Opp. Mot. Exclude ¶ 6. 16 Id. ¶ 7. 17 509 U.S. 579 (1993). 18 Bowen v. E.I. DuPont de Nemours & Co., 906 A.2d 787, 794–95 (Del. 2006). 19 Id. at 794. 5 (3) whether a technique had a high known or potential rate of error and whether there are standards controlling its operation; and
(4) whether the theory or technique enjoys general acceptance within a relevant scientific community. 20
In addition to the Daubert criteria, Delaware Rule of Evidence 702 “imposes
a special obligation upon the trial judge to ‘ensure that any and all scientific
testimony . . . is not only relevant but reliable.’” 21 In determining whether an
expert opinion is admissible, the Court must consider whether: (1) the witness is
qualified as an expert by knowledge, skill experience, training or education; (2) the
evidence is relevant; (3) the expert's opinion is based upon information reasonably
relied upon by experts in the particular field; (4) the expert testimony will assist the
trier of fact to understand the evidence or to determine a fact in issue; and (5) the
expert testimony will not create unfair prejudice or confuse or mislead the jury. 22
Peter does not dispute the lack of published scientific methods used to
estimate the age of mold or wood rot. Peter’s supplemental report states that:
Published information that establishes the specific time period of mold growth and wood rot is not available. The science of these destruction processes is understood, but the rate of destruction is so heavily dependent on a matrix of parameters that formulas or standards are not available.”23
20 Id. (citing Daubert, 590 U.S. at 590–94). 21 Id. (quoting D.R.E. 702). 22 Id. at 795. 23 Id. 6 Based on a review of photographs taken by Brescia in 2007 and Plaintiff in
2011, Peter opines that the darkened surface staining of the wood and presence of
wood rot fungi establishes that the wood rot was caused by water damage and was
present in 2007.24 Peter bases this opinion on the presence and characteristics of
wood rot fungi.25 According to Peter, the presence of brown rot fungus indicates a
chronically wet area for a prolonged period of time because “wood rot is
recognized as a slow process that takes many months to years to occur” and the
damage progresses deep into the wood.26 Because he has never observed wood rot
less than five years old, Peter opines that the water damage at the Property must
have been present in 2007 when Brescia renovated.
The Court will not accept Peter’s opinion simply because he says so. This is
the sort of ipse dixit reasoning insufficient to pass muster under Daubert.27 Peter’s
theory of dating wood rot is based solely on his work experience, and his
methodology is not supported by any scientific data. “[A]n expert’s . . .
qualifications alone will not serve as a license to express ipse dixit rather than [a]
properly supported expert opinion.”28 Accordingly, because Peter’s opinion is not
24 Mot. Exclude Ex. A, at 2–4 (Trans. ID. 55010328). 25 Id. at 2–3. 26 Id. at 2. 27 Costalas v. Safeway, Inc., 2007 WL 2893585, at *1 (Del. Super. Oct. 1, 2007); Crowhorn v. Boyle, 793 A.2d 422, 433 (Del. Super. 2002); Brown v. United Water Delaware, Inc., 2011 WL 4716251, at *3 (Del. Super. Oct. 7, 2011) aff’d, 74 A.3d 653 (Del. 2013). 28 Jones v. Astrazeneca, LP, 2010 WL 1267114, at *9 (Del. Super. Mar. 31, 2010). 7 based on sufficient facts or data and is not the product of reliable methods, it fails
to meet Daubert.
V. CONCLUSION
For the foregoing reasons, Defendant’s Motion to Exclude the Testimony of
J. Frank Peter M.S. Based on his Supplemental Report is GRANTED.
IT IS SO ORDERED.
_____________________________ Jan R. Jurden, President Judge