Opinion
C.A. No. 03C-05-260 MJB.
Submitted: July 6, 2006.
Decided: July 25, 2006.
Upon Motion for Summary Judgment by Howard L. Robertson, Inc. DENIED.
Paul Cottrell, Esquire, Tighe, Cottrell Logan, P.A., Wilmington, Delaware, Attorney for Defendant Howard L. Robertson, Inc.
Dion G. Rassias, Esquire, The Beasley Firm, LLC, Philadelphia, Pennsylvania, Attorney for Plaintiffs.
John A. Elzufon, Esquire, Colleen D. Shields, Esquire, Elzufon, Austin, Reardon, Tarlov Mondell, P.A., Wilmington, Delaware, Attorneys for Defendant The Breckstone Group, LLC.
ORDER
Background
This is a negligence and breach of contract action brought by the Plaintiffs in connection with the commercial development of a property in Wilmington, Delaware. Howard L. Robertson, Inc. ("HLR") was hired to perform engineering services relating the to the project. During construction of the parking lot for the project, a county inspector ordered construction to stop because the parking lot did not provide an adequate number of parking spaces for the three-tenant building contemplated in the development.
Plaintiff brought suit against Theodore S. Morgan, Leslie P. Morgan (his former partners), Brandywine Innkeepers, L.L.C., Brandywine Holding, L.L.C., Brandywine Hospitality, L.L.C. (business organizations related to the former partnership), The Breckstone Group, Inc. (the architectural firm) and Howard L. Robertson, Inc. (the engineering firm).
Plaintiffs allege HLR failed to properly inspect and evaluate the plans for the development so they would comply with the Unified Development Code ("UDC"), which failure resulted in the parking space violation. Plaintiffs seek to recover costs incurred in bringing the parking lot into compliance. HLR denies any liability, and, following the deadline in the trial scheduling order for the identification of Plaintiff's expert on May 19, 2006 and the discovery deadline of June 21, 2006, filed the instant Motion for Summary Judgment. HLR contends that the expert hired by Plaintiffs is not qualified to render an opinion regarding the standard of care for engineers because he is an architect. Consequently, HLR argues, since expert testimony is needed to establish liability of a professional engineering firm such as HLR, and it is deficient in this case, summary judgment should be granted in its favor.
The motion is couched as a Motion for Summary Judgment, but is more accurately analyzed as a Motion in limine because HLR bases their motion on their perceived inadequacies of Plaintiff's expert witness. The Motion for Summary Judgment argues since the Plaintiff's expert is not qualified to render an expert opinion in this case, and because an expert opinion is required to find professional negligence, a resolution of this issue in HLR's favor would be case dispositive. The Court first engages in an analysis of the adequacy of the expert's qualifications and reliability of his testimony. Only if the Court finds the expert is not qualified to testify is a summary judgment analysis appropriate. Of course, the Court may grant Plaintiffs an extension of the trial scheduling order to cure the defects in their expert testimony, if necessary, as well.
Plaintiffs cite to several sections in the record which they contend show that architects and engineers deal equally with parking lot plans, such as those at issue in this case. Thus, Plaintiffs argue, Mr. Rappoport is qualified to render an expert opinion regarding whether HLR breached the standard of care because there is significant overlap in this area of practice between architects and engineers.
This Motion for Summary Judgment was filed on June 23, 2006. Oral argument was heard on July 6, 2006. This is the Court's opinion on the motion.
Contentions of the Parties and Applicable Law
No case in Delaware has decided whether an architect may be qualified as an expert to testify regarding a breach of the standard of care for an engineer.
"As a general rule the standard of care applicable to a professional can only be established by way of expert testimony" (Emphasis added.). That general rule applies to the facts of this case. Therefore, if the testimony of Plaintiff's expert, James Rappoport ("Mr. Rappoport"), is inadmissible, and there is no additional expert testimony available to Plaintiff, summary judgment in favor of HLR may very well be appropriate.
Seiler v. Levitz Furniture Co., et al, 367 A.2d 999, 1008 (Del. 1976).
In M.G. Bancorporation, Inc. v. Le Beau, the Delaware Supreme Court adopted the expert testimony analysis set forth by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc. and Kumho Tire Co. LTD v. Carmichael when determining the admissibility of expert testimony under D.R.E. 702.
737 A.2d 513 (Del. 1999).
509 U.S. 579 (1993).
526 U.S. 137, 138 (1999) (applying the Daubert analysis to all expert testimony).
M.G. Bancorporation, Inc. v. Le Beau, 737 A.2d at 521.
Delaware Rule of Evidence 702 states:
If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill experience, training or education may testify thereto in the form of an opinion or otherwise if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
If an expert opinion is challenged, the trial judge must decide if the expert is qualified to render the opinion and whether the testimony has a reliable basis in the relevant subject matter. The Daubert test is not finite, but must be viewed as a guideline for determining whether any particular opinion of a qualified expert is based on valid reasoning and methodology. The ultimate question for the Court is "whether the expert's technique or principle [is] sufficiently reliable so that it will aid the jury in reaching accurate results."
Id. at 523.
Livesay v. Heagy, 2004 WL 3928262 (Del.Super.)
Id.; citing In re Paoli Railroad Yard PCB Litig., 35 F.3d 717, 744 (3d Cir. 1994).
To determine whether, in the matter before the Court, the proffered expert is qualified to render the opinion he has expressed, an analysis of the roles of architects and engineers is required. To evaluate whether, and to what extent, any overlap exists between architecture and engineering specialties, we must analyze the statutory framework applicable to each profession. The practice of architecture is defined in DEL. CODE ANN. tit. 24, § 302(5):
"Practice of architecture" shall mean the rendering or offering to render those services, hereinafter described, in connection with the design and construction, enlargement or alteration of a structure or group of structures which have as their principal purpose human habitation or use, and the utilization of space within and surrounding such structures; the services referred to include planning, preparing studies, designs, drawings, specifications and other technical submissions and furnishing administration of construction contracts.
The practice of engineering is defined at DEL. CODE ANN. tit. 24, § 2804(20):
"Practice of engineering" or "to practice engineering" includes any professional service performed for the general public such as consultation, investigation, evaluation, planning, design, or responsible supervision of construction or operation in connection with any public or private buildings, structures, utilities, machines, equipment, processes, works, or projects wherein the public welfare or the safeguarding of life, health or property is concerned or involved when such professional service requires the application of engineering principles and data, but it does not include machinery or equipment, neither does it include engineering services performed by an employee of a firm or corporation that does not offer professional engineering services to the general public.
These two statutes should be construed in conjunction with one another for purposes of this motion. They show the practice of architecture and engineering significantly overlap.
The purpose of the statutory regulation of architects and engineers is to protect the public welfare. The purpose of these statutes is not to establish "turf" for each of the two professions. Each profession is regulated to ensure standards are in place regarding education and experience, and the fact that there is no clear mutually exclusive demarcation between the two professions is apparent in both statutory sections. Both professions relate to the application of mathematical knowledge to the design and planning of structures, and the supervision of their erection.
DEL. CODE ANN. tit. 24, § 301; DEL. CODE ANN. tit. 24, § 2802.
See e.g. Rosen v. Bureau of Professional and Occupational Affairs, 763 A.2d 962, 966 (Pa.Commw. 2000) (construing similar Pennsylvania statutes).
Id.
The existence of overlap is furthered identified in § 303(b)(2) stating:
(b) The provisions of this chapter shall not be construed to prevent, nor to affect . . . (2) The practice of architecture by a person licensed in this State as a professional engineer, when such practice is incidental to what may be properly considered an engineering project . . .Analysis
HLR relies primarily upon Livesay v. Heagy as support for the argument that Mr. Rappoport is not qualified to render an expert opinion in this case as to HLR's performance. In Livesay, an individual who was not licensed as an expert in Delaware proffered testimony regarding forces and stresses in an automobile collision as to both the vehicles and occupants. The Court ruled that the "science" to support the testimony was unreliable, and excluded the expert's testimony. In addition, the court ruled that testifying as an expert on the engineering standard of care was the "practice" of engineering. The engineer expert in Livesay was not a registered engineer in Delaware. The Court ruled the engineer could not testify, both because his conclusions were unreliable and because he was not qualified to testify regarding a breach of the applicable standard of care for engineers in Delaware. The statutory framework that governs engineers in Delaware did not provide an exception for out of state engineers to practice in Delaware for purposes of testifying as experts.
2004 WL 3928262 (Del.Super.).
Id. at *3.
DEL. CODE ANN. tit. 24, §§ 2801-2830.
Livesay v. Heagy, 2004 WL 3928262 at *3-*4.
In the case at bar, Mr. Rappoport seeks to testify regarding the duties an engineer has regarding design structure as they relate to parking lots. Mr. Rappoport is an architect licensed in 32 states, including Delaware. He received his bachelor's degree in architecture from Cornell University in 1964 and a master's degree in architecture and urban design and urban planning from Columbia University in 1966. Mr. Rappoport has also been a principal and owner of various architectural design firms. In the instant case, Mr. Rappoport opines that HLR breached the applicable standard of care for design and planning of parking lots because they failed to coordinate the scope of the planning for which they were responsible with the architect hired by Plaintiffs (The Breckstone Group, Inc.).
HLR Motion for Summary Judgment Exhibit B (Mr. Rappoport Deposition) at 8, 16.
Id. at 8.
Id.
Id. at 100-101.
While the forces and stresses in an automobile collision may be only the province of an engineer, the duties of an engineer when submitting plans that include a parking lot clearly overlap with the duties of an architect. The Court is of the opinion, therefore, that the Livesay case is distinguished from the facts of this case.
Plaintiff argues the facts of this case can be likened to those of Balan v. Horner, in which the Delaware Supreme Court ruled in a medical malpractice context that doctors of different specialties could testify regarding the applicable standard of care in an area of concurrent expertise. Plaintiff argues that pursuant to this holding, architects can opine on the applicable standard of care for engineers because the two professions overlap in many respects.
706 A.2d 518 (Del. 1998).
Id. at 520.
Plaintiff's Response in Opposition to the HLR Motion for Summary Judgment at 2.
Counsel for HLR responded at oral argument that Balan is not applicable to the facts of this case because that case dealt with different sub specialties and the instant case deals with different professions all together.
The Court finds the principle set forth in Balan persuasive, that is, when a "common standard of care" for professionals who practice in the same area exists, one of those professionals may opine regarding the applicable standard of care. The record in this case is replete with evidence that indicates architects and engineers deal equally with planning issues as they relate to parking lots. The architectural firm hired in this case even took steps to remedy the parking lot problem after it arose. It follows that an architect or an engineer would be qualified to render an opinion regarding whether the other breached the applicable duty of care to be followed in such planning. Further support for this holding may be found in holdings in other jurisdictions.
Balan v. Horner, 706 A.2d at 520.
Plaintiffs' exhibit 61; Plaintiffs' exhibit 94 at page 101 (Deposition of Carmine Casper):
Q. Sir, you'll agree with me that the responsibility for creating the appropriate number of parking spaces for a particular project is a planning issue.
A. Planning, yes.
Q. Does it apply equally to engineers and architects depending on the circumstances?
A. I would say yes.
Plaintiffs' exhibit 16; Plaintiffs' exhibit 97 at page 101 (Richard A. Wilson Deposition).
In National Cash Register Co. v. Haak, the court was faced with the question of whether a lower court properly excluded testimony of a geologist and an engineer regarding the breach of the standard of care by an architect. The lower court had ruled that the plaintiff failed to present a qualified expert to establish the architect breached the standard of care because the plaintiff did not offer an architect to render such an opinion. In determining the competency of a witness the court engaged in the following analysis:
335 A.2d 407 (Pa.Super. 1975).
Id. at 410.
The crucial test of the competency of a witness offered as an expert to give testimony as such is the resolution of the question as to whether or not the jury or persons in general who are inexperienced in or unacquainted with the particular subject of inquiry would without the assistance of one who possesses a knowledge be capable of forming a correct judgment upon it.
Id.
Ultimately, the appellate court reversed the lower court finding, stating:
In the instant case the subject matter in controversy (the design and installation of a surface water disposal system on the site in question) is not within the exclusive realm of one profession. To the contrary, it is within the realm of at least three professions: architects, engineers and geologists. Therefore, a member of any of these professions (if otherwise qualified) was competent to state what the appropriate design and installation standards were.
Id. at 411; see also Rosen v. Bureau of Professional and Occupational Affairs, 763 A.2d 962 (Pa.Commw. 2000) (finding a significant overlap in the practice of engineering and architecture and no "bright line" between the two.).
In Brushton-Moira Central School District v. Alliance Wall Corp. the appellate court affirmed a trial court ruling allowing an engineer to testify regarding the applicable standard of care for architects because he was well qualified to render an opinion in the field at issue.
195 A.D.2d 801 (N.Y.App.Div. 1993).
Id. at 802.
In Edgewater Apartments, Inc. v. Flynn an engineering firm was hired to investigate the cause of water leakage in a building. The firm investigated and made recommendations to remedy the water problem. When the recommended steps were taken, but the water leakage problem continued, a different engineering and design firm was hired to address the problem. This firm sent two registered architects to investigate the continuing problems. One of those architects was then called to testify regarding the breach of the standard of care by the engineering firm previously hired and unable to fix the water leakage problem.
216 A.D.2d 53 (N.Y.App.Div. 1995).
Id. at 53.
Id.
Id.
Id. at 54.
The appellate court reversed the holding of the trial court, that an architect was not qualified to render an opinion regarding the applicable standard of care for an engineer, because the architect was well qualified in the area in which he testified:
Sherman, a registered architect with 25 years of experience in investigating the causes of water infiltration from the exterior of a building into its interior, has furnished his expertise to a variety of masonry projects, including the Empire State Building, Graybar Building and Lincoln Towers . . . [a]n architect, particularly one with the experience possessed by Sherman, is certainly competent to testify as to the nature of the services rendered by Flynn with regard to repair of the leakage problems at the Edgewater. Indeed Sherman and LZA achieved this precise goal, stopping the water seepage, that Flynn was originally hired to do but which it failed to accomplish.
Id. at 54-55.
Similarly, in the instant case, Mr. Rappoport has extensive experience in his field and the record reflects the overlap of architectural and engineering services in the area of parking lot planning. In addition, as in Flynn above, the record indicates it was the architectural firm that remedied the parking lot problem, not the engineering firm. There is nothing inherent in the nature of parking lot design that makes it unique to engineers. The jury needs the assistance of a person who possesses knowledge of parking lot planning and design and Mr. Rappoport is qualified to render such an opinion. Mr. Rappoport's competency depends on knowledge and experience in the area of dispute, not on whether he is in the same profession as the defendant.
HLR makes additional arguments to support the contention that Mr. Rappoport should be precluded from testifying in this case. The Court will address each seriatim.
HLR argues that Mr. Rappoport should be precluded from testifying because the American Institute of Architects, to which Mr. Rappoport belongs, recommends design professionals testify regarding the standard of care exercised by professionals of the same discipline. While the Court recognizes that there are areas of substantive expertise in which those recommendations would be advisable to follow, they are not binding on this Court's decision, and to the extent they may be proferred as persuasive authority for HLR's position, the Court chooses not to find them dispositive under the facts of this case. They do not establish the legal standard the Court should apply.
HLR Motion for Summary Judgment at 2.
HLR also notes that in response to their question at his deposition, Mr. Rappoport agreed "first and foremost in defining the standard of care for a professional, you have to look at their contract." They contend that Mr. Rappoport is not qualified to render an opinion in this matter because he testified he was unaware of the terms of the contract between Plaintiffs and HLR. That fact does not render his competency to express such an opinion inadmissible.
Id. at 3.
Id. This is a most unreasonable argument by HLR. The contract between the Plaintiffs and HLR was oral. The terms of that contract are the subject of this dispute and remain to be proven at trial.
HLR further argues Mr. Rappoport should be precluded from testifying because he was unaware that architects and engineers are licensed and regulated by the same board, and because Mr. Rappoport commented on the failure of the parking lot to comply with the Americans with Disabilities Act even though it has no bearing on this case. The Court finds these arguments irrelevant to the issue of whether Mr. Rappoport is qualified to render an opinion in this case regarding duties of engineers as they relate to parking lot plans. These matters may be proper for cross-examination, but they do not preclude Mr. Rappoport's testimony.
Id.
Finally, HLR seeks to exclude the testimony of Mr. Rappoport on the basis that he has never been qualified as an expert, and therefore is not qualified to render an opinion in the instant case. Plaintiffs respond that although Mr. Rappoport has never testified at a trial, he is consulted frequently and reviews 15-20 cases per year. The cases simply have all settled before trial. In essence, Plaintiffs argue that not previously having been qualified as an expert in the Courts of Delaware before should not preclude Mr. Rappoport from qualifying here.
Id.
The Court agrees with Plaintiff's argument. If the argument HLR puts forth were accepted, no "new" experts would be competent to be so qualified in legal proceedings. Such a position presents untenable practical problems and is patently invalid.
This Court holds Mr. Rappoport may testify regarding the applicable standard of care for an engineer regarding parking lot design and planning issues and whether it was breached, because Mr. Rappoport is properly qualified to testify on the subject matter through training and experience.
Conclusion
For the reasons stated herein, the Motion for Summary Judgment of Defendant Howard L. Robertson, Inc. is DENIED.