Court: United States Bankruptcy Court for the Middle District of Florida, Jacksonville Division
Case Name: Westminster Assocs., Ltd. v. Orkin Exterminating Co. (In re Westminster Assocs.)
Citation: 265 B. R. 329
Using sketches from the plaintiff’s entomology expert witness, the construction management expert estimated the cost of restoring the termite damage. However, errors in the sketches led the court to question the reliability of the construction management expert’s methodology.
The defendant filed a motion to exclude part of the expert’s testimony. The court denied the motion, deeming the construction management expert’s methodology reliable.
A debtor brought a complaint against an extermination service. The question at hand was whether the defendant was liable for the cost of the termite damage in the plaintiff’s apartment complex. If the defendant was liable, then the question was about the cost of repairing the damages. The court had to decide on the defendant’s motion to withdraw a portion of the plaintiff’s construction management expert’s testimony.
The Plaintiff’s Construction Management Expert Witness
The construction management expert witness was the vice president of a construction inspection company who evaluated work applications prior to disbursement of payments to general contractors. The plaintiff originally retained the expert to examine the unnecessary water usage at the plaintiff’s building. Additionally, the plaintiff asked the expert to examine the maintenance work on some of the stairs. He was finally asked to oversee the work done by the general contractor in the plaintiff’s apartment building. The plaintiff described the expert witness as an expert on construction costing and construction management.
The construction management expert witness used exterior sketches and field studies compiled by the plaintiff’s entomology expert witness. Using this information, the expert compiled an estimate of the cost of restoring the termite damage to the plaintiff’s complex. The court allowed the Termite Cost Report as evidence. The expert acknowledged that he was not a termite expert. Furthermore, he had no experience detecting damage done by dry wood termites, carpenter ants, wood-destroying beetles, or fungi. He further admitted that he had made no opinion independently as to what kind of damages had been remedied.
The expert did calculate the cost of repairing the wood damaged by termite at the plaintiff’s complex. He measured the overall cost of repairing the wood at each building. Then, he excluded the cost of repairing the damage done by the fungi mentioned in the expert witness’s entomology report. Such facade sketches had coded active damage from termite, damage from termite to wood, and damage from carpenter ants. Moreover, the sketches had inactive damage from termites. The construction management expert witness only subtracted repair costs coded as arising from wood-destroying fungi.
The court considered the plaintiff’s entomology expert findings and the sketches showed that two buildings were ant-infested. The court questioned the reliability of the expert’s subtraction methodology with respect to ant effects. This was because the expert conceded that he only subtracted areas coded as fungi damage in the drawings. But the inability to deduct damage from ant did not make his opinion unreliable. None of the drawings or reports showed damage from beetles. The construction management expert testified that he was not able to assess if the damage was due to termites. The expert witness relied on the sketches.
Inaccuracies in drawings attributed to the failure to remove fungi damage from drawings, not to the subtraction methodology. It did not make his subtraction process unreliable. The expert argued he could not remove any costs because the damage was incurred by the removal of the stucco. It was eventually determined that there was no damage to the termite under the stucco. The assignment of these expenses to the defendant did not make his method unreliable.
The motion to exclude testimony of the construction management expert witness was denied.
Key Takeaways for Experts
Every expert on the same side should make sure there are no errors in their reports to prevent a domino effect. In this case, despite inaccuracies from another expert’s methodology, the court questioned the reliability of the construction management expert’s methodology. Because the entomology expert didn’t remove fungi damages from the sketches, the construction management expert’s methodology was impacted. Experts should fact-check every aspect of their methodology, including portions that rely on other expert’s reports. If their work overlaps, experts should collaborate early on in the process. Furthermore, if an expert finds that their testimony relies on the work of other experts, they should seek out other methodologies to supplement this work to account for potential errors.