patterson and smith v. lemelson

STATE OF VERMONT

SUPERIOR COURT CIVIL DIVISION
Lamoille Unit Docket No. 77-6-18 Lecv

Patterson & Smith Construction vs. Fr.Emmanuel (Gr

ENTRY REGARDING MOTION

Count 1, Collection (77-6-18 Lecv)

Count 2, Breach of Contract (77-6-18 Lecv) FILED

Count 3, Collection (77-6-18 Lecv) '
JUN 01 2900

Title: Motion in Limine (Motion 7)
Filer: Co-counsel VERMONT SUPERIO

R COUR’
Attorney: | Susan J. Flynn LAMOILLE UNIT T

Filed Date: = April 2, 2020
Response filed on 04/21/2020 by Attorney Pietro J. Lynn for Defendants
The motion is GRANTED IN PART.

Plaintiff seeks to preclude expert testimony, due to failure to disclose an expert witness, on
certain claims in Defendants’ counterclaim, specifically (1) failure to perform the contract for
construction of a domed chapel in a workmanlike manner, (2) failure to comply with the plans
and specifications of the contract, and (3) use of an unreasonable amount of time in performing
the work. Plaintiff alleges that the testimony of an expert in construction is necessary on these
claims.

Defendants assert that expert testimony is not necessary on the specific proposed testimony,
and claim that Defendant Fr. Lemelson can testify to (1) deviations from plans and
specifications, (2) poor quality of work, (3) untimeliness of work, (4) his efforts to encourage the
work to be performed properly, (5) his opinions as property owner regarding the quality of the
work, and (6) the diminution in the value of his property based on the corrective work

required. Defendants claim that the defects are obvious and not latent, and on page 8-9 of their
Opposition and in attached Exhibit A have identified 20 specific topics that they claim do not
require expert testimony because they are “obvious errors in construction, not outside the.
expertise of laypersons.”

The court has reviewed these items, and concludes that there are some items that may not
require expert. testimony in order to be understood by lay jurors, such as items 1, 13, 17.
However, most of the items require the specialized knowledge of experts in construction. There
are several that require a determination of whether certain aspects of the construction was
done in a “workmanlike fashion.” Poor workmanship may be visible in some circumstances and

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not others, but Defendants’ argument that all items listed constitute visibly defective work is
not persuasive. For example, a lay person is not likely to know whether screws in a certain place
were “improperly sited,” or whether beams were or were not damaged by water, or whether a
skirt in a certain location was “improperly constructed.” In those and other circumstances, a
layperson could not understand whether technical work was done properly or not; an expert in
the field would be needed to assist the jurors in determining whether many of the disputed
items were done in a.manner that meets the standards of the construction industry for the
particular task. .
in addition, Defendants allege that Plaintiff took an inordinate amount of time to complete the
work, thereby driving up costs and damaging Defendants. Only an expert in construction would
have sufficient knowledge, skill, experience, and training to provide the jury with testimony that
would assist jurors in understanding the evidence and making a decision as to whether the time
spent on the job and charged to Defendants was reasonable or excessive.

It appears that expert testimony would be needed for most, although not necessarily all, of the
claims of defective construction and excess time and billing asserted by Defendants. Since no

timely expert disclosure was made, Defendants are precluded from calling an expert witness on
those claims. ‘

Electronically signed on May 29, 2020 at 04:44 PM pursuant to V.R.E.F. 7(d).

Mary Mes Teachout
Superio¥ Court Judge

Notifications:

Pietro J. Lynn (ERN 3695), Attorney for Defendant Fr.Emmanuel (Gregory) Lemelson.
Susan J. Flynn (ERN 3111), Attorney for party 1 Co-counsel

Justin B. Barnard (ERN 7036), Attorney for Plaintiff Patterson & Smith Construction
‘Carol Pfeiffer (ERN 10817), Attorney for party 1 Co-counsel

Pietro J. Lynn (ERN 3695), Attorney for Defendant Anjeza Lemelson