An expert must evaluate applicable contract documents in order to opine as to liability.
The plaintiff, a condominium association, appealed from an order barring expert testimony and granting summary judgment to a contractor involved in a building exterior restoration project. In February 2002, the Association contracted with Lime Contracting for the work. On August 18, 2010, the Association filed suit against several parties involved in the project, including an allegation that Lime Contracting breached its contractual duties by failing to comply with the plans and specifications set forth in the agreement or otherwise failing to do the job in a workmanlike manner. The plaintiff’s expert evaluated the building conditions but did not compare the conditions to the actual contract documents applicable to Lime’s work on the project. Lime was granted summary judgment because expert testimony was required to prove the Association’s breach of contract claims and because the reports and testimony by the Association’s only liability expert were inadmissible. Separate negligence claims against Lime were precluded by the economic loss doctrine. The Appellate Court affirmed the trial court, distinguishing the facts of this case from Supreme Court precedent in Aronsohn v. Mandara, which held that where there is no express contractual provision concerning workmanship, the law implies a covenant that the contract will be performed in a reasonably good and workmanlike manner. Here, however, there was an express contractual provision concerning workmanship, and the expert’s opinions were not linked to the contract terms or specifications and were, therefore, inadmissible net opinion. The court also found that a Rule 104 hearing was unnecessary since the parties consented to a ruling on the papers submitted.
Case Law Alerts, 4th Quarter, October 2021 is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2021 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.