United States District Court, D. Maryland
XINIS UNITED STATES DISTRICT JUDGE
is a Motion to Exclude the expert report and testimony of
Robert Panunto, ECF No. 57, and a Motion for Summary
Judgment, ECF No. 57, filed by Defendant Scope Services, Inc.
The issues are fully briefed and a hearing was held on
September 11, 2017. For the reasons stated below,
Defendant's Motion to Exclude and for Summary Judgment is
following facts are undisputed. On January 29, 2013, Scope
Services, Inc. (“Scope Services”) replaced a
residential meter located at 19326 Elderberry Terrace in
Germantown, Maryland, pursuant to a contract with Potomac
Electric Company (“Pepco”). See Amended
Complaint, ECF No. 24. The replacement procedure required a
Scope Services employee, Garron Jackson, to remove the
existing electric meter and “plug” a new AMI
electric “smart” meter into the meter base.
See Jackson Dep. 34:13-16, ECF No. 60-2. On March
23, 2013, a fire originating within the home caused extensive
damage to the property.
owner of the damaged townhouse, James Timmerman, Jr.,
received over $154, 000 in payment from his insurance
company, American Strategic Insurance Corporation
(“ASIC”), for property damage resulting from the
fire. See Amended Complaint, ECF No. 24 at ¶16.
ASIC now seeks recovery of these payments from Scope
Services, alleging that Defendant's professional
negligence was a direct and proximate cause of the March 23rd
fire. See Amended Complaint, ECF No. 24 at ¶18.
Plaintiff avers specifically that the fire originated at the
base of the meter pan, where Pepco's service entrance
cable connected to the meter, because of high resistance
contact between the new meter and the meter base.
See ECF No. 60-7 at 5-7. Plaintiff's singular
theory of liability is that the fire would have never
happened but for the Defendant's failure to follow proper
meter installation procedures. See Amended
Complaint, ECF No. 24 at ¶20.
13, 2015, ASIC filed its complaint against Pepco, alleging
professional negligence. ECF No. 1. ASIC amended its
complaint on November 12, 2015, adding the current defendant,
Scope Services, Inc. ECF No. 24. The Plaintiff then dismissed
all claims against Pepco on April 18, 2016. ECF No. 36. Scope
Services answered the amended complaint on December 12, 2015
and discovery ensued. After the close of discovery, Scope
Services filed its Motion to Strike Plaintiff's Expert
Designation and Motion for Summary Judgment on January 27,
2017. ECF No. 57.
Defendants' Motion to Exclude the Expert Report and
Testimony of Robert Panunto
this action is properly before the Court on diversity
jurisdiction, Maryland choice-of-law rules apply. See
Wells v. Liddy, 186 F.3d 505, 521 (4th Cir. 1999)
(“A federal court sitting in diversity must apply the
choice-of-law rules from the forum state.”). For causes
of action sounding in tort, Maryland adheres to the lex
loci delicti rule, applying the substantive law of the
state in which the alleged tort took place. Philip Morris
Inc. v. Angeletti, 358 Md. 689, 744-45 (2000).
Maryland law, the plaintiff “must prove the existence
of four elements: a duty owed to him (or to a class of which
he is a part), a breach of that duty, a legally cognizable
causal relationship between the breach of duty and the harm
suffered, and damages.” Jacques v. First Nat'l
Bank, 307 Md. 527, 531 (1986). Expert testimony is
generally required to establish the standard of care
“when the subject of the inference is so particularly
related to some science or profession that it is beyond the
ken of the average laymen.” Jones v. Godfrey,
No. RWT-04-3379, 2008 WL 1701088 at *13 (D. Md. Mar. 3, 2008)
(quoting Virgil v. “Kash ‘N' Karry”
Service Corp., 61 Md.App. 23, 31 (1984)). Here, the
Plaintiff's negligence claim turns on the adequacy of
Scope's procedures for installing a “smart”
electric meter at 19326 Elderberry Terrace. See ECF
No. 58 at 1-2. Because the proper procedure for electric
meter installation is “simply not something that
ordinary people would know, ” Jones v. Reichert
Jung, Inc., 211 F.Supp.2d 661, 668 (D. Md. 2002), the
Plaintiff must offer expert testimony establishing the
standard of care. “If the plaintiff presents no expert
when one is needed, then the trial court may rule, in its
general power to pass upon the sufficiency of the evidence,
that there is not sufficient evidence to go [to] the
jury.” Jones v. State, 425 Md. 1, 26 (2012)
(quoting Rodriguez v. Clarke, 400 Md. 39, 71,
Defendant urges the court to strike Plaintiff's expert
designation of Ronald J. Panunto (“Mr. Panunto”
or “Panunto”) pursuant to Federal Rule of
Evidence 702 (“Rule 702”) for two
reasons. First, the Defendant argues that Mr.
Panunto is not qualified to act as an expert witness in this
matter because he does not have specific experience
installing electric “smart” meters, but rather
possesses general expertise in the fields of electrical
engineering and fire investigation. See ECF No. 61
at 5-6. Second, Defendant contends that Mr. Panunto's
testimony does not properly establish the industry standard
of care. ECF No. 58 at 5-9. In response, the Plaintiff does
not argue that this action is in a small class of
professional negligence for which no standard of care expert
testimony is required. See Crockett v. Crothers, 264
Md. 222, 224 (1972) (“[T]here may be instances where
the negligence is so gross or that which was done so
obviously improper or unskillful as to obviate the need for
probative testimony as to the applicable standard of
care.”). Rather, Plaintiff claims Mr. Panunto's
opinion passes muster under Rule 702.
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of
an opinion or otherwise if:
(a) the expert's scientific, technical, or other
specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and
(d) the expert has reliably applied the principles and
methods to the facts of the case.
Fed. R. Evid. 702. Courts have distilled Rule 702's
requirements into two crucial inquiries: whether the proposed
expert's testimony is relevant and reliable. Kumho
Tire, 526 U.S. 137, 141 (1999); U.S. v. Forest,
429 F.3d 73, 80 (4th Cir. 2005); Westberry v. Gislaved
Gummi AB, 178 F.3d 257, 260 (4th Cir. 1999). “The
trial court must carry out the special gatekeeping obligation
of ensuring that expert testimony meets both
requirements.” Kumho Tire, 526 U.S. at 147.
The party offering the expert testimony bears the burden of
establishing its admissibility by a preponderance of
evidence. Cooper v. Smith & Nephew, Inc., 259
F.3d 194, 199 (4th Cir. 2001).
The Qualifications of Robert Panunto
threshold matter, a witness must be qualified as an expert by
knowledge, skill, experience, training, or education. Fed. R.
Evid 702. When a party challenges an expert's
qualifications, “the test for exclusion is a strict
one, and the purported expert must have neither satisfactory
knowledge, skill, experience, training nor education on the
issue for which the opinion is proffered.” Kopf v.
Skyrm, 993 F.2d 374, 377 (4th Cir. 1993) (quoting
Thomas J. Kline, Inc. v. Lorillard, Inc., 878 F.2d
791, 799 (4th Cir. 1989)). The Advisory Committee Notes to
Rule 702 state that formal scientific or academic training
and methodology is not a necessary predicate to testimony as
an expert. Rather, experience alone, or in conjunction with
“other knowledge, skill, training or education, ”
can provide a sufficient foundation for expert testimony.
See also Kumho Tire, 526 U.S. at 156 (“[N]o
one denies that an expert might draw a conclusion from a set
of observations based on extensive and specialized
experience.”). “Experiential testimony need not
‘rely on anything like the scientific
method.'” Casey v. Geek Squad Subsidiary Best
Buy Stores, L.P., 823 F.Supp.2d 334, 345 n.9 (D. Md.
2011) (quoting United States v. Wilson, 484 F.3d
267, 274 (4th Cir. 2007)).
expert's opinion testimony, whether based on specialized
education, training, or experience alone, is “helpful
to the trier of fact, and therefore relevant under Rule 702,
only to the extent the expert draws on some special skill,
knowledge or experience to formulate that opinion”
concerning the particular issue or product before the court.
Shreve v. Sears, Roebuck & Co., 166 F.Supp.2d
378, 393 (D. Md. 2001). The fit between an expert's
specialized knowledge and experience and the issues before
the court need not be exact. Id. at 392. Rule 702
does not “create[ ] a schematism that segregates
expertise by type while mapping certain kinds of questions to
certain kinds of experts . . . the ...