Summary
finding expert's reliance on inadmissible hearsay evidence is limited by Rule 703's requirement that it also be reasonably relied upon by others in the field
Summary of this case from State ex rel. French v. Card Compliant, LLCOpinion
C.A. No. 97C-10-132-RFS.
Submitted: April 18, 2005.
Decided: May 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.
Jeffrey M. Weiner, Esquire, of Fox Rothschild, LLP, Wilmington, Delaware for the Plaintiff.
Paul M. Lukoff, Esquire, of Prickett, Jones Elliot, P.A., Wilmington, Delaware for the Defendant Service Unlimited, Inc.
David E. Wilks, Esquire and Thad J. Bracegirdle, Esquire, of Buchanan Ingersoll PC, Wilmington, Delaware for the Defendant Rokeby Realty Company
MEMORANDUM OPINION
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 1990 to 1995. In 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.
Brandt's spouse, Nancy Brandt is also suing for damages for loss of consortium. For the sake of simplicity, just Mr. Brandt and "Plaintiff" in the singular are referred to throughout.
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.
Mr. Peter signed two Duffield letters, dated December 3, 2004 and December 6, 2004, in which were set out his findings regarding standard of care for HVAC contractors, maintenance people and building maintenance people. The purpose of the December sixth letter was to supplement the December third letter and to show that the standard of care for a building maintenance person was consistent with that of an HVAC maintenance person. It referenced a survey, in which Mr. Peter contacted and questioned one person who had twenty-five years experience in maintaining buildings in Delaware and who had managed a large number of maintenance people in buildings in the area.
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 maintenance contractors. Service notes that Mr. Peter does not have any formal training in conducting polls or surveys, and he knows little about how to gather and interpret data. It argues that he did not interview a sufficient sample size to determine standard of care.
Brandt responds that Mr. Peter has more than twenty-five years experience with consulting and project management in the environmental, chemical and petroleum refinery industries. He has worked with companies where he was involved in the design of HVAC equipment and the analysis of the performance of HVAC equipment. He claims Mr. Peter has instructed HVAC contractors with regard to the repair of the equipment and has observed them working on HVAC equipment.
Brandt also adds that Mr. Peter has conducted many surveys to establish standard of care in the areas of maintenance and operation of equipment, training, experimentation, engineering standards, construction personnel and financial controls. He contacts the professionals involved, visits their job sites and observes them at work. Mr. Peter also reviewed the BOCA Mechanical and Plumbing Codes. He made his determination about the standard of care based upon his experience, the applicable standards, the literature and by surveying the HVAC contractors and maintenance contractors.
According to the December 3, 2004 letter, Duffield contacted the current Plans Engineer of Licensing and Inspections for the City of Wilmington, Trevor Knight. He informed Duffield that the applicable building codes governing the HVAC system and its maintenance were the Building Officials Code Administrators Internation, Inc. (BOCA) National Mechanical Code/1993, Chapter 7 Hydronic Piping, and the BOCA National Plumbing Code/1993, Chapter 6 Sanitary Drainage Systems. December 3, 2004 Letter at 4.
2. Defendants' Motions to exclude the expert Carl Borsari.
Brandt's second expert is Carl Borsari ("Mr. Borsari"). He has a degree in civil engineering and has worked towards a masters degree in construction management. He is now a consultant on engineering and management issues related to building problems, but over the years he has worked for several large real estate companies in New York City, managing their properties. In addition, he has lectured for twenty years at City University of New York Graduate School of Real Estate and Construction in courses on property management and building systems. He served as a sanitary and industrial hygiene engineer in the United States Air Force. Mr. Borsari is offered as an expert in on the standard of care applicable to owners and managers of commercial buildings in Delaware during the period in question, from 1990 to 1995.
During the course of Mr. Borsari's deposition, there was some question as to whether he was being presented also as an expert on an HVAC contractor's standard of care. In his Response in Opposition the Defendant's Motions in Limine to Exclude the Testimony of Carl Borsari, P.E., however, the Plaintiff clearly states that Mr. Borsari was being offered as an expert on the standard of care applicable to owners and managers of commercial buildings in Delaware. Nowhere was it mentioned in that document that he was also being offered as an expert on HVAC contractors.
Service argues that Mr. Borsari is not qualified as an expert to testify as to the standard of care for an HVAC contractor. It claims he has never been to Brandt's office, nor does he know anything about HVAC companies, their employees and technicians and their literature. He had only negotiated the terms of an HVAC contractor's activities with respect to buildings he managed in New York City.
Since Mr. Borsari is not being offered as an expert on Service's standard of care it is not necessary to determine whether he was qualified. If, however, the Court were to consider that issue, based on his deposition testimony, it is clear that he does not have sufficient knowledge and experience of the field to render an opinion on an HVAC contractor's standard of care.
Rokeby argues that Mr. Borsari cannot testify as to a commercial building manager or owner's standard of care because he is unfamiliar with the local standard in Delaware. He has never managed any properties in Delaware and he testified in his deposition that he was unaware of any national or local standard for commercial landlords that would be applicable to Delaware in 1990 to 1995, or at the time of his deposition.
Brandt responds that Mr. Borsari has extensive experience managing commercial buildings in Connecticut, New York, New Jersey and Florida. He is a member of the Building Owners and Managers Association ("BOMA"), having been its First Vice-President for a time and having headed its building codes and regulations, indoor air quality, and asbestos committees at various points. He states that Delaware is included within BOMA Philadelphia and that, in Mr. Borsari's opinion, the organization had considerable influence among building owners and managers in the early 1990's. In the late eighties BOMA began publishing information about air quality standards.
Furthermore, in 1991, the EPA, along with the National Institute of Occupational Safety and Health (NIOSH), published Building Air Quality: A Guide for Building Owners and Facility Managers ("the EPA/NIOSH guidelines"). Brandt claims this publication established an industry standard of care for all commercial landlords throughout the United States. Brandt also points to the fact that ASHRAE changed their standard for fresh air from five CFM per person to 20 CFM per person somewhere around 1989. Moreover, Kenneth M. Belmont ("Belmont"), a State of Delaware Industrial Hygienist, states in an affidavit, used in a Chancery Court case, that the guidelines applied by the Delaware Division of Public Health in mold investigations were the New York City Department of Health, Bureau of Environmental Occupational Disease Epidemiology's Guidelines on Assessment and Remediation of Fungi in Indoor Environments.
In his deposition, Mr. Peter refers to a group called ASHREA. Peter Tr. at 27. The Court assumes this is the same group as the ASHRAE (the American Society of Heating, Refrigeration and Air-conditioning Engineers), which Mr. Borsari referenced. Mr. Peter describes ASHREA as a group that publishes various guidelines and standards and background information governing the design, installation and maintenance of equipment.
DISCUSSION.
D.R.E. 702 provides that an expert may testify by "knowledge, skill, experience, training or education" if the testimony is "based upon sufficient facts or data" and is "the product of reliable principles and methods," and if the expert "has applied the principles and methods reliably to the facts of the case." Delaware Courts have adopted Daubert and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) in assessing expert testimony. M.G. Bancorporation, Inc. v. Le Beau, 737 A.2d 513, 522 (Del. 1999). Accordingly, the Judge is the gatekeeper and must ensure that any scientific, technical or other specialized testimony is relevant and reliable. Id. at 521. More specifically, "when the `factual basis, data, principles, methods, or their application' in an expert's opinion are challenged, the trial judge must decide if the expert's testimony `has a reliable basis in the knowledge and experience of [the relevant] discipline.'" Id. at 523.
1. J. Frank Peter
In his deposition Mr. Peter testified that he first worked for Mobil Research Development Corporation ("Mobil") as a Senior Process Engineer. He next worked at an ICI Americas, Inc. ("ICI") refinery as a process design engineer. According to his curriculum vitae he also worked as a program manager and engineering director with Specialty Chemicals, a division of ICI, as a technical superintendent with Petrochemicals Division of ICI, and as Director of Environmental Services and Operations with Stauffer Management Company, an affiliate of AstraZeneca, which was formerly ICI. After he formally retired, he continued to consult with ICI as a business development director, selling environmental remediation services in the field of contaminated soil. He was hired by Duffield in 2003. During the time he worked for Mobil and ICI, he was involved in the "conceptual design, the process design, the construction and the operation of facilities which included buildings" and the HVAC systems in those buildings. Peter Tr. at 14-15.
He testified that he never had been employed by an HVAC contractor, nor had he directed the functioning or operation of an HVAC contractor, but that in 2004, he had the opportunity to supervise and observe the employees of an HVAC contractor when he was hired by a company to address indoor air quality problems at a school in New Jersey. He also stated that, associated with chemical plant operations, he had worked with HVAC contractors in order to identify and solve problems with the equipment.
When asked by Brandt's attorney what qualified him to have an opinion as to the standard of care of HVAC design or maintenance, he replied: "I have been involved in the design of equipment which includes HVAC equipment. I have gone and analyzed the performance of HVAC equipment. I have instructed HVAC contractors to fix equipment. And I have watched them work." Peter Tr. at 139. This testimony comports with his curriculum vitae, in which it is stated that he also conducted a pre-purchase due diligence evaluation of a high-rise office building, which included an assessment of that building's HVAC system. In addition, he evaluated a newly built medical facility after complaints of mold and high humidity, and he identified maintenance problems with the building's HVAC system, among other things.
Mr. Peter was asked by Brandt to determine what the standard of care was for an HVAC contractor and an HVAC maintenance contractor. He determined that the relevant building code for the period from 1990 to 1995 was the BOCA mechanical and plumbing codes from 1993. He testified that the BOCA code provides the requirement that HVAC equipment have drainage and that it provides a guideline for the slope of the pipe.
Apparently the earlier 1990 BOCA code was not available to Mr. Peter; however, he testified during his deposition that, in his understanding, a later code will have a marginal line against it to indicate places where the new code has been modified from the old code. He said there were no such lines in the 1993 version of the code, so he presumed there had not been any change from the 1990 code. Peter Tr. at 98.
Mr. Peter also conducted a survey of four HVAC contractors and two HVAC maintenance contractors. His interviews of these contractors guided him in developing his opinion as to the standard of care. Defendants protest that the survey is not reliable because Mr. Peter does not know enough about proper gathering and analysis of statistics.
It is not manifestly evident to the Court in what capacity Mr. Peter was using the survey evidence in this case. If he conducted the interviews for the purpose of admitting them as survey evidence in the form of a statistical compilation, then they must have been conducted with scientific reliability. If, however, he conducted the surveys as anecdotal evidence in order to bolster his own knowledge and experience of the standard of care, then it must be the type of evidence reasonably relied upon in his field.
Reliance on facts otherwise inadmissible (in this case hearsay) and made known to the expert before the hearing is limited by D.R.E. 703's mandate that such evidence be "of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject. . . ." This requirement enables the Court to evaluate and ensure the trustworthiness of the underlying data on which the expert relies. Head v. Lithonia Corp., 881 F.2d 941 (10th Cir. 1989). "What is necessary is that the expert arrived at his . . . opinion by relying upon methods that other experts in his field would reasonably rely upon in forming their own, possibly different opinions. . . ." Id., quoting, Osburn v. Anchor Laboratories, 825 F.2d 908, 915 (5th Cir. 1987).
The Delaware Rules are identical to the Federal Rules. Delaware Courts have relied in the past on the Federal Courts' interpretation of their equivalent evidence rules. See, e.g., Lynch v. Athey Prods. Corp., 505 A.2d 42, 44 n. 1 (Del.Super.Ct. 1985) ("The Delaware Rule being based upon the Federal rule and being substantially equivalent thereto.").
It is generally thought that an expert's reliance on a method or other evidence typically relied upon in his field demonstrates its trustworthiness. See, e.g., Primavera v. Celotex Corp., 608 A.2d 515, 520 (Pa.Super.Ct. 1992) ("The fact that experts reasonably and regularly rely on this type of information merely to practice their profession lends strong indicia of reliability to source material, when it is presented through a qualified expert's eyes."). Thus, it is stated in the advisory committee notes to the Federal Rule:
[A] physician in his own practice bases his diagnosis on information from numerous sources and of considerable variety, including statements by patients and relatives, reports and opinions from nurses, technicians and other doctors, hospital records, and X rays. Most of them are admissible in evidence, but only with the expenditure of substantial time in producing and examining various authenticating witnesses. The physician makes life-and-death decisions in reliance upon them. His validation, expertly performed and subject to cross-examination, ought to suffice for judicial purposes.Fed.R.Evid. 703 advisory committee's notes.
Therefore, it is said that a doctor may rely upon hearsay statements, which would normally not be admissible, from his patient or other doctors when giving his opinion of the cause of his patient's illness. In addition, at least one Delaware Court has ruled that a doctor may, to some extent, rely upon the practice of other doctors he questioned when forming his opinion as to standard of care. See Conway v. Bayhealth Med. Ctr., Inc., 2001 WL 337228 (Del.Super.Ct.) (allowing doctor to testify as to standard of care for family practitioner when he asked other doctors about their practice in forming his opinion). An expert may not, however, rely on hearsay evidence alone to substantively prove the truth of his statement or opinion. If the expert is merely acting as a mouthpiece or conduit for another's opinions or statements, he cannot be said to be acting in his capacity as an expert in the matter and the hearsay evidence is inadmissible.
Here, Mr. Peter stated he did not himself have any personal knowledge of or experience with the standard of care for HVAC contractors in Delaware during the years 1990 to 1995, and that he had to conduct the surveys in order to find this information out from others. One Pennsylvania Court summarizes this point well:
The excerpt from the transcript is as follows:
Q. . . . Do you believe you established that standard of care?A. Yes. Q. And is that in your report? A. Yes.
Q. And the way you established the standard of care for both features that we have been discussing, not only the identification of the drain line problem but the response to it — are you comfortable with that way of characterizing the second feature of the standard of care?A. Yes.
Q. — that the way you went about establishing the standard of care was performing the Internet search, identifying a group of HVAC contractors and HVAC maintenance contractors, then contacting some of them, and then ascribing to what they told you a pattern such that you understood now what the standard of care was for the period between 1990 and 1995?
A. The piece that was missing out of that is my background in doing maintenance planning and observation and supervision, and also engineering and procedure preparation and industry, which would establish the basic approach to maintenance and accountability of all kinds of crafts, which is the background of my work, and then, that then led to what are the code requirements of law or permits or compliance of the licenses, and then the third piece of that was to actually go out and talk to people in the industry who were in the field in the time in question, what did you do, how would you do this, what is the extent of your work, how would you respond to a sloped drain line, how would you respond to a water overflow situation.
Q. Okay. The reason you went to the third step was you could not supply the information yourself, correct?
A. I believe I can — based on my experience, could supply the information myself, but it is really what would people who practice the craft do.
Q. Okay. And when you say it is what the people who practice the craft would do, you've just described what the appropriate standard of care would be?MR. WEINER: Objection. Q. Or would have been at the time, correct? MR. WEINER: Objection. A. Yes. Q. And you —
A. With the limited extent of the definition of my remit.
Q. Okay. If you had been able to supply the third part yourself you wouldn't have had to conduct the survey, correct?MR. WEINER: Objection.
A. I believe that I would not be providing the service that I was requested to provide, since the standard of care is a basis on which to compare behaviors of peers in the same time, the same location, doing the same kinds of job, the same kinds of backgrounds.
Q. And you were not in a position in 1990, between 1990 and 1995, to do that yourself were you?MR. WEINER: Objection. A. Yes. Q. Sir? A. I was not in a position to do that.
Q. And that meant that you had to go and speak to people who were in a position to know that?MR. WEINER: Objection. You can still answer.
Q. Correct?
A. Yes.
The [Rule 703 analysis] depends, of course, on the expert actually acting as an expert and not as a mere conduit or transmitter of the content of an extrajudicial source. An "expert" should not be permitted simply to repeat another's opinion or data without bringing to bear on it his own expertise and judgment. Obviously in such a situation, the non-testifying expert is not on the witness stand and truly is unavailable for cross-examination.
Primavera v. Celotex Corp., 608 A.2d 515, 521 (Pa.Super.Ct. 1992).
Although the Primavera Court also cited to the Advisory Committee notes of Fed.R.Evid. 703, Pennsylvania did not adopt its own version of the Rule until 1998. The Rule and its analysis as it was related under Pennsylvania common law in Primavera and before 1998 was substantially the same as it now is under Pennsylvania Rule of Evidence 703. The idea that an expert may not be a mere conduit for inadmissible evidence still applies in Pennsylvania under Pennsylvania's Rule 703. The Pennsylvania Rule does differ from the Delaware and Federal Rules, however, in that it does not include the last sentence requiring a Judge to make a Rule 104 determination before submitting the underlying facts or data upon which the expert relies to the jury.
The Plaintiff relies on Conway, 2001 WL 337228, to support his contention that an expert may rely on the statements of others when forming an opinion. This situation is different from the one in Conway, however. The expert in that case was a doctor, who had practiced for twelve years, testifying about his own practice and that of other doctors. "The determination of the subject area which the expert can address must be made in the light of the education and experience of the expert." Lee v. A.C. S. Co., 542 A.2d 352, 355 (Del.Super.Ct. 1987). Mr. Peter is not an HVAC contractor. While he has had experience with HVAC systems, he admits that he did not know the standard of care for an HVAC contractor during the 1990 to 1995 period in question. Here, Mr. Peter was asked to prepare a report on standard of care in preparation for litigation. His field of expertise is, in one sense, engineering as it relates to HVAC systems, but he is being asked to testify regarding an HVAC contractor's standard of care. Mr. Peter is not qualified to testify as to the standard of care of an HVAC maintenance contractor. He cannot ameliorate his lack of expertise by repeating hearsay statements about standard of care from HVAC contractors and maintenance contractors.
This is not to say that he could not have determined the standard of care through other scientifically reliable means, in his capacity as consultant, such as by conducting a survey. Mr. Peter testified in his deposition that he had conducted more than ten, and less than a thousand, surveys over the course of his career, in attempts to establish the state of the art in various areas, including maintenance and operation of equipment, training, personnel, financial controls, experimentation, engineering standards and construction. Peter Tr. at 60-61, 88-89.
The Court agrees that an expert hired as a consultant to determine standard of care or the state of the art, may accomplish this by conducting a survey. The Court, however, must evaluate the reliability of such data underlying an expert's opinion. "Implicit in the rule . . . is the court's guidance to `make a preliminary determination pursuant to Rule 104(a) whether the particular underlying data is of a kind that is reasonably relied upon by experts in the particular field in reaching conclusions.'" Head, 881 F.2d at 944, quoting, 3 J. Weinstein M. Burger, Weinstein's Evidence ¶ 703[03], at 703-16 (1982). "If the data underlying `the expert's opinion are so unreliable that no reasonable expert could base an opinion on them, the opinion resting on the data must be excluded.'" Montgomery County v. Microvote Corp., 320 F.3d 440, 448 (3d Cir. 2003) (citation omitted). Thus, even if an expert is well-qualified, his testimony may still be barred if it is not based on sound data. Id.
The admissibility of a poll or survey is dependent upon its trustworthiness, which is predicated on the reliability of the methodology employed. See Zippo Mfg. Co. v. Rogers Imports, Inc., 216 F. Supp. 670, 684 (S.D.N.Y. 1963). While no Delaware Court seems to have specifically addressed the reliability of survey evidence in this context, the Third Circuit has discussed the factors which must be examined to determine whether a poll or survey meets generally accepted survey principles, stating:
Historically, the admissibility of polls and surveys was suspect because they were made up of hearsay evidence. See Liberty Fin. Mgmt. Corp. v. Beneficial Data Processing Corp., 670 S.W.2d 40 (Mo.Ct.App. 1984) (discussing the judicial acceptance of properly conducted surveys). This problem was solved with the adoption of F.R.E. 703 and its liberalization of an expert's reliance on inadmissible evidence. The Advisory Committee Notes state:
The rule also offers a more satisfactory basis for ruling upon the admissibility of public opinion poll evidence. Attention is directed to the validity of the techniques employed rather than to relatively fruitless inquiries whether hearsay is involved. See Judge Feinberg's careful analysis in Zippo Mfg. Co. v. Rogers Imports, Inc., 216 F.Supp. 670 (S.D.N.Y. 1963).
Fed.R.Evid. 703 advisory committee's notes.
A proper universe must be examined and a Representative sample must be chosen; the persons conducting the survey must be experts; the data must be properly gathered and accurately reported. It is essential that the sample design, the questionnaires and the manner of interview meet the standards of objective surveying and statistical techniques. Just as important, the survey must be conducted independently of the attorneys involved in the litigation. The interviewers or sample designers should, of course, be trained, and ideally should be unaware of the purposes of the survey or the litigation.
Pittsburgh Press Club v. United States, 579 F.2d 751, 759 (3d Cir. 1978).
Another helpful source is the Federal Judicial Center's Reference Manual on Scientific Evidence, Reference Guide on Survey Research, 229-276, 238 (2d ed. 2000) ("the Federal Reference Manual on Scientific Evidence"). As compared to the rigorous requirements laid out in Pittsburgh Press Club and in the Federal Reference Manual on Scientific Evidence, the survey Mr. Peter conducted fails to meet the criteria for reliability on almost every level.
Mr. Peter himself administered all of the interviews. He was aware of the purpose of the survey when he conducted it. According to the Federal Manual on Scientific Evidence, bias is minimized if the interviewer is blind to the purpose and sponsorship of the survey. Id. at 238. Furthermore, while Mr. Peter identified a proper universe, HVAC contractors and maintenance contractors in the vicinity of Wilmington, it is doubtful that he examined a representative sample. He was able to identify twenty-one contractors and nine maintenance contractors, but he was only able to question four HVAC contractors and two HVAC maintenance contractors. Disregarding the fact that there is no evidence that the sampling frame was correct, the Federal Reference Manual states that if the response rate in a survey is less than 50%, as it was here, "the survey should be regarded with significant caution as a basis for precise quantitative statements about the population from which the sample was drawn." Id.at 245.
There were also significant problems with the survey questions and the way in which Mr. Peter administered them. See Federal Reference Manual at 248-264. He did not consistently ask all of the questions to those he interviewed, skipping over some of them completely and not asking others of some of the interviewees. Peter Tr. at 57. Cf. Dummit v. Burlington Northern R.R. Co., 789 S.W.2d 136, 137-38 (Mo.Ct.App. 1990) (ruling that a lower court did not abuse its discretion in refusing to admit job market surveys when the surveys were conducted solely for the purpose of litigation, no standardized questions were asked, the selection of the respondents was haphazard and the "only indicia of trustworthiness was the survey taker's conclusion that the results were trustworthy.").
In addition, Mr. Peter was not adequately trained to be designing and conducting surveys for the purposes of litigation. See Federal Reference Manual at 238-39. While he has had some training in taking surveys and in statistics, it is clear to the Court that his training has been limited and that he is not an expert in taking polls and surveys. He had some formal training, sponsored by one of his employers, sometime before 1990, and he took one statistics course as an undergraduate at the University of Delaware, and another as part of a quality management training course in the mid-eighties. Peter Tr. at 62, 133-36.
In this regard, the Federal Reference Manual on Scientific Evidence at 238 states:
Experts prepared to design, conduct, and analyze a survey generally should have graduate training in psychology (especially social, cognitive, or consumer psychology), sociology, marketing, communication sciences, statistics, or a related discipline; that training should include courses in survey research methods, sampling, measurement, interviewing, and statistics. In all cases, the expert must demonstrate an understanding of survey methodology, including sampling, instrument design (questionnaire and interview construction), and statistical analysis. Publication in peer-reviewed journals, authored books, membership in professional organizations, faculty appointments, consulting experience, research grants, and membership on scientific advisory panels for government agencies or private foundations are indications of a professional's area and level of expertise. In addition, if the survey involves highly technical subject matter (e.g., developmentally disabled adults with limited cognitive skills), the survey expert also should be able to demonstrate sufficient familiarity with the topic or population (or assistance from an individual on the research team with suitable expertise) to design a survey instrument that will communicate clearly with relevant respondents.
See also Tunnell v. Ford Motor Co., 330 F. Supp.2d 707, 718-19 (W.D. Va. 2004) (finding expert who conducted survey was qualified when she had "a B.A. in Mathematics and Economics, an M.B.A. with concentration in Marketing and Statistics from the University of Chicago, and a Ph.D. in Marketing from the University of Pennsylvania").
In sum, the survey conducted by Mr. Peter is not scientifically reliable. Moreover, he does not have enough experience and knowledge of the proper survey methodology to conduct a survey admissible for litigation purposes. Mr. Peter is also not qualified to testify as an expert of a building manager's standard of care. His experience with building managers is mentioned only generally, and his analysis of a building owner's standard of care is presented only briefly as an afterthought in a letter, supplemental to his original report. Mr. Peter interviewed only one building manager, and he admitted that one data point is not sufficiently reliable information on which to base any conclusions:
Q. So I am clear on a question that Mr. Lukoff asked and your answer to it, he spoke in terms of training that you have received with respect to the generation of data. Let me just ask it this way: Have you received any training on the proper construction of a poll or a survey of human beings?MR. WEINER: Objection. You can still answer. A. I have received formal training.
Q. And from that training did you learn that it is inappropriate to draw conclusions from a survey of a single individual?MR. WEINER: Objection.
A. That was knowledge that I had before that training.
Q. So you didn't need them to train you on that? You already knew that?MR. WEINER: Objection. You can still answer.
A. Going back to your previous point, a survey of one has no statistical significance, in the absence of other information.
Service also maintains that Mr. Peter should be excluded as an expert because he testified it did not violate the standard of care. He stated that Service had conformed with the standard to the extent that it had discovered the problems and reported them. Mr. Peter also concluded, however, that Service may not have conformed to the standard of care if it had the responsibility to then repair the HVAC system. A contract was introduced during Mr. Peter's deposition which stated that Service was obligated to make repairs, with the authorization of the owner.
Generally, once the standard of care has been determined by expert testimony, it must be proved that the standard was breached. If Brandt's expert would not testify that Service breached the standard of care, and in fact states it did not, that ostensibly creates a problem for the validity of Brandt's case. Here, Mr. Peter testified that HVAC contractors are expected to repair defects in the system if required by contract. The contract required that the HVAC contractors make repairs only upon authorization of the owner. Mr. Peter also stated that Service had conformed to the standard of care by reporting the problems after having discovered them. He stated:
Q. So I take it, then, that your review of the contract document does not provide you with a basis to criticize my client in terms of the conformance with the standard of care with respect to the Brandt Dalton office in the period between 1990 and 1995?
A. Yes, I would criticize your client to some extent for allowing this to occur over a long period. They are not obligated by contract to actually make the repair. They repeatedly reported the problem. But at some point as a business practice you need to decide whether to continue to work with a client that doesn't take recommendations which impact the performance of the equipment that they are responsible for working — the equipment that they are responsible to maintain or observe.
Q. My question is not a question of a business practice. It is a question of the standard of care.
A. Yes.
Q. And my question then is: Are you now satisfied that with respect to the standard of care, as opposed to a business practice, my client did not violate the standard of care as you have come to know it as a maintenance, an HVAC maintenance contract in the period of 1990 to 1995?
MR. WEINER: Objection. You can still answer.
A. Yes.
Q. Yes, it is correct that it did not violate the standard of care?
MR. WEINER: Objection. You can still answer.
A. Yes.
Peter Tr. at 70-71. Given this testimony, it cannot be said that Service breached the standard as it was explained by Mr. Peter. According to him, Service could not have made repairs unless it had the permission of Rokeby, and he stated that Service had repeatedly reported the problems to Rokeby.
Peter Tr. at 157-58. When asked about his knowledge of building owners and managers, Mr. Peter stated:
I can tell you that I've had experience, and I have observed many different building managers and building maintenance people work. I've advised them and I've worked shoulder to shoulder with them.
So I feel that I have a fairly good impression about what would be an appropriate response to water coming out of a ceiling or wet ceiling tile.Peter Tr. at 101. He further claimed that his experience comes from having observed a number of building managers and building maintenance people at work. Peter Tr. at 102. Again, while the Court finds hearsay evidence is permissible evidence which an expert can use to form an opinion on standard of care, if it is of the type reasonably relied upon by experts in the field, Mr. Peter does not have the appropriate experience and knowledge of building managers necessary to qualify him as an expert on the standard they use in their business. He is simply not qualified to reliably discuss the evidence to be gleaned from that one interview.
Throughout the depositions, Plaintiff's attorney, Mr. Weiner, objected to many of the questions asked. The Court observes that these objections have no merit in the Rule 104(a) context and do not affect this decision. See also n. 7 and n. 10, supra.
The interview is otherwise inadmissible. It is both an unreliable survey and inadmissible hearsay evidence. See Renaud v. Martin Marietta Corp., 972 F.2d 304 (10th Cir. 1992) (affirming lower court decision to exclude expert's testimony on causation when his conclusions were based on a single data point). Based on Mr. Peter's lack of any real experience managing buildings or with the real estate business, this Court finds that he is not sufficiently knowledgeable or experienced to testify as an expert of a building manager or owner's standard of care.
Finally, because Mr. Peter will be excluded from testifying as to Service's standard of care and because Mr. Borsari is not qualified to testify about that standard, and no other experts were presented within the 90 day period who could testify to that standard, Service must be dismissed from this case. Summary Judgment is granted on Service's behalf because the Plaintiff was unable to prove an essential element of his case, standard of care.
2. Carlos Borsari
Mr. Borsari is presented as an expert in the area of commercial building management and, in this regard, he has much experience in real estate management in New York City. It is clear that Mr. Borsari is knowledgeable in the area of managing large commercial and residential buildings. Defendant Rokeby, however, raises a legitimate question when it points out that he has no experience in Delaware.
In Norfleet v. Mid-Atlantic Realty Co., 2001 WL 695547 (Del.Super.Ct.), the Court found that in landlord negligence cases, the plaintiff must produce a witness with expertise in the Delaware real estate community. The Court went on to say, however:
Considering apartment owners and managers as professionals not only requires expert testimony but also impacts the type and qualifications of the expert that may be called to testify. Common law has created a local standard of care for professionals in which the fact finder evaluates whether the actions of the professional conform to the profession's standards of skill, care and competence, as adhered to by professionals who are in good standing in the community. Essentially, this represents a requirement that the expert be familiar with the local standard of care as opposed to a national standard of care or that "bridging" testimony be presented which states the similarity between the local and national standards.. . .
The Court is not persuaded that apartment owners and managers are "professionals" in the way that term is used in the Pattern Jury Instructions and the Restatement (Second) of Torts § 299A. The Court's opinion in Miley does not state that a Delaware real estate expert was necessary because apartment owners and managers are professionals. The Court found that to prove ordinary negligence the Plaintiffs would have to show that the reasonable landlord does more than meet the minimum requirements of the applicable codes. While the Court did not consider apartment owners professionals explicitly, the Court held that experts to a similar standard likely because of the extent of the regulation of the landlord tenant code. The Miley Court specifically stated that
Plaintiffs might succeed if they presented evidence of an industry practice which replaced glass in intervals of time less than every twenty years, or if they presented evidence of an industry practice which conformed specifically exempted structures to present BOCA code standards. . . .Id. at *5, citing, Miley v. Harmony Mill Ltd P'ship, 826 F. Supp. 824, 826 (D. Del. 1993).
In New Haverford P'ship v. Stroot, 772 A.2d 792, 798-99 (Del. 2001), the Court affirmed the Superior Court's admission of an architect's expert testimony as to standard of care for a property manager when he testified that there was a national standard for building for maintenance, safety and cleanliness. Thus, there is no strict requirement that an expert must testify to the local standard for commercial landlords in Delaware. Here also, the Plaintiff has shown, through his expert, that there was an industry practice of following EPA/NIOSH guidelines, ASHRAE guidelines, and the BOMA quality standards.
When asked about a national standard of care during his deposition, Mr. Borsari replied:
there were organizations like BOMA . . . that publish information about standards of cares.
And then the government came out with — the EPA came out with requirements concerning indoor air quality. And organizations like ASHRAE developed — revised their standard for fresh air from five CFM per person to 20 CFM per person. They published that in 1989.
So we were aware, I was aware, BOMA and EPA, if you wanted, I used to, through BOMA and EPA, I used to keep track of their requirements. I'm not saying that everybody did but I did.
Borsari Tr. at 52-53 (emphasis added). When further asked to provide the standard of care in providing a safe rental unit between 1990 and 1995, he stated:
In 1991 — there was a lot of dialogue between the industry and the EPA. There always is. Because if they are going to come out with a law, you can have a tremendous impact in terms of both the safety of the tenants and the operating costs of the building.. . .
Now of course, New York City is usually ahead on those issues. So, you know, our familiarity with it was much greater, you know. I mean I personally, through my group in BOMA, was very aware of these issues.
Now, to the extent that the rest of the industry was aware of it, I really can't comment on that.Borsari Tr. at 56-57 (emphasis added). When asked about the national standards and whether a program he instituted in his buildings to address mold concerns would establish a standard of care for the entire country, Mr. Borsari replied:
Well, what it is, you have to understand how the business operates. In other words, you have a national group. Let's say BOMA, the EPA, various OSHA, et cetera. And then a lot of the requirements and all and issues and dialogue develops at that level and then it filters down to the local level. And then on a local level, we take that information and data and then come up with what we think the standards of care are in our area because sometimes certain areas have a greater problem with some of those issues than other areas. Like in the south, of course, mold is probably a bigger thing than in the northeast, you know.Borsari Tr. at 59-60. BOMA is a national organization which has local offices. The local BOMA organization which covers Delaware is located in Philadelphia. It issues guidelines. Both BOMA and ASHRAE are nationally recognized organizations. Of course the EPA and NIOSH, which published their guidelines in 1991, are well-recognized and respected governmental institutions. Rokeby argues that this Court has already rejected the EPA guidelines as proof of a standard of care; however, the Court also pointed out that guidelines may be evidence of a standard of care should professionals regard and interpret them as such. Brandt, at 12. In addition, in New Haverford P'ship, 772 A.2d at 795-96, the Court allowed an expert to testify to standard of care regarding a landlord's liability for excessive mold in an apartment, when the tenants lived in the building during the years 1990 to 1994. Brandt also attempts to furnish a "bridge" between Mr. Borsari's knowledge and experience in New York and the standard in Delaware. With his Response in Opposition to the Defendants' Motions he provides an Affidavit of Kenneth M. Belmont, an Industrial Hygienist with the Delaware Division of Public Health. The affidavit was taken from an unrelated Court of Chancery case in 2002. In that context, it is not relevant to questions related to the 1990 to 1995 period.
According to Belmont, the New York City Department of Health, Bureau of Environmental Occupational Disease Epidemiology's Guidelines on Assessment and Remediation of Fungi in Indoor Environments ("the New York Guidelines") are applied in Delaware mold investigations. The Court asked the Plaintiff to provide the date the regulations were adopted or first used in this state, but he was not able to provide a definitive date. It was discovered, however, that the New York Guidelines were never officially adopted in Delaware. Despite this fact, the Court is satisfied that during the period in question, from 1990 to 1995, there were national standards sufficient to allow Mr. Borsari to testify as an expert on the standard of care for a building owner or manager.
The Court finds that there is sufficient evidence that the guidelines and standards presented were applied nationally and regionally during the years 1990 to 1995, such that Mr. Borsari may testify to a building owner and manager's standard of care.
3. Rule 54(b)
Defendant Service has asked this Court to enter a final judgment pursuant to Superior Court Civil Rule 54(b). According to the common law, a judgment dismissing an action against one of several defendants is not a final judgment. Lightburn v. Delaware Power Light Co., 158 A.2d 919, 922 (Del. 1960). This is not changed by Rule 54(b). Id. However, the Rule does provide that if requested, and upon an express determination that there is no just reason for delay, the Court may enter a final judgment.
The Rule provides:
When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, the Court may direct the entry of a final judgment upon one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims, or parties and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.
Service claims that final judgment should be entered because this case is slated to go on for many months. The Court finds however that there is just reason for delay — the avoidance of piecemeal appeals in a case that has proven to be quite complex. See, e.g., Gatz v. Ponsoldt, 2004 WL 3031203, at *1 (Del.Ch.) ("When deciding to exercise its discretion in this manner, the Court may consider many factors and will balance those factors against `the long established policy against piecemeal appeals [that] requires . . . this Court exercise that discretion sparingly.' Indeed, Rule 54(b) exists to create `a discretionary power to afford a remedy in the infrequent harsh case. . . .'" (Citation omitted)). Accordingly, no final judgment on Service's dismissal from this case will be issued until all claims are adjudicated.
Chancery Rule 54(b) is virtually identical to Superior Court Civil Rule 54(b).
CONCLUSION
Considering the foregoing, J. Frank Peter is precluded from testifying in this case as to both Rokeby's and Service's standards of care. Carl Borsari will be permitted to testify about the standard of care for a building owner or manager. Since Plaintiff Brandt has failed to provide an expert who can testify as to Service's standard of care as a Delaware landlord, it cannot prove an essential element of its case and Service Unlimited must be dismissed as a defendant in this case.
IT IS SO ORDERED.