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Novum Structures LLC v. Larson Engineering, Inc.

United States District Court, E.D. Wisconsin

April 30, 2019



          WILLIAM E. DUFFIN, U.S. Magistrate Judge.

         1. Facts and Background

         Novum Structures, LLC, was hired to design and construct a large glass-covered atrium. As it had done many times in the past, Novum brought in Larson Engineering, Inc. to review and ultimately stamp the drawings that Novum drafted. During construction, ice built up in the connection boxes where the trusses connected to the edge beam, causing the welds in those connection boxes to crack. When investigation revealed that the welds were insufficient to support the structure, Novum was required to reconstruct significant portions of the structure.

         Novum brought this action alleging that, because Larson stamped the drawings for the structure, it alone is liable for the defects in the welds. On May 7, 2018, Larson served Novum with “Defendants' Rule 26(a)(2) Expert Disclosures.” (ECF No. 30-17.) Larson's expert disclosures identified two individuals as experts: Thomas Downs and Keith Pashina. Larson stated that Pashina would offer testimony consistent with the content of “his” report, which was attached. (Id.)

         The report that was attached to Larson's expert disclosures was signed by Pashina as Principal and by Steven Talafous as Principal Engineer of Buildings Consulting Group, Inc. (ECF No. 30-17 at 14.) Beginning with an “Executive Summary” and concluding with “General Remarks, ” the narrative portion of the report covers 14 pages. Throughout, all opinions in the report are expressed as “our” opinions. At the end of the report are curriculum vitae for Pashina, Talafous, and Senior Engineer Mark J. Duncan, who did not sign the report and is not otherwise mentioned in the report.

         Apparently due to Pashina's inability to answer various questions at his deposition, on July 31, 2018, Larson served Novum with “Defendants' First Amended Rule 26(a)(2) Expert Disclosures.” (ECF No. 30-19.) In its amended expert disclosures Larson added Talafous and Duncan as experts that it may call to offer the opinions contained in the report submitted with its original expert disclosures.

         Novum has moved to strike Pashina as an expert on the ground that he is not qualified to offer the opinions expressed in his report. (ECF No. 27.) It also contends that Larson's amended expert designation should be stricken “because it came months too late.” (ECF No. 28 at 13.) Novum does not challenge Downs's opinions or object to him testifying as an expert.

         2. Pashina's Qualifications as an Expert

         In its brief in support of its motion to strike Pashina as an expert witness Novum quotes at length from his deposition testimony, identifying a variety of topics on which Pashina is not qualified to testify. (ECF No. 28.) It contends that Pashina, a civil rather than a structural engineer, has no relevant experience or education in the field of structural steel engineering. (Id. at 2.) Novum argues that, because he has no background or experience in structural engineering, at his deposition Pashina “could not answer basic questions about the bases for a number of opinions contained in his expert report and, instead, deferred to his colleagues.” (Id. at 4.) As a result, it contends, Pashina should be precluded from testifying as an expert in this case.

         Not until its reply brief did Novum identify any specific opinion contained in Pashina's report that it contends he is not qualified to offer. It quotes one paragraph in the Executive Summary of the report that, it contends, “summarizes” the opinions of Pashina and his firm:

BCG has a reasonable degree of engineering certainty [that] the Larson design of Novum's original atrium design met the requirements of the Wisconsin Building Code. Oru review of provided documentation and structural review found the alleged structural design deficiencies were not present. The design review provided by Larson correctly determined the Novum atrium design was sufficient to meet the rquirements of the Wisconsin State Building Code. It is our opinion Larson's review of the Novum design met the standard of a peer review.

(ECF No. 34 at 2-3.) It then argues that “most” of the ensuing pages of the report, and all of the appendices, are devoted to describing the structural engineering analysis in greater detail. (Id. at 3.)

         Pashina admittedly is not qualified to offer all of the opinions included in his report. He acknowledged as much at his deposition when he was frequently unable to answer technical questions, deferring to Talafous and Duncan. (See ECF No. 28 at 9-11; see also ECF No. 28 at 2-4.) However, the court does not find a basis for concluding that Pashina wholly lacks technical knowledge that will help the trier of fact understand the evidence or determine a fact in issue. As an engineer experienced in peer reviewing the work of other engineers, he is qualified to offer opinions as to what was included within this sort of a review. (See ECF No. 30-18 at 3-4.) He is also qualified to offer opinions regarding the significance of an engineer stamping a drawing and the role of an engineer of record. (See ECF No. 30-18 at 2-4.) Therefore, the court will deny Novum's motion to wholly bar Pashina from testifying as an expert.

         3. ...

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