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American Strategic Insurance Corp. v. Scope Services, Inc.

United States District Court, D. Maryland

September 15, 2017

AMERICAN STRATEGIC INSURANCE CORP., Plaintiff,
v.
SCOPE SERVICES, INC. Defendant.

          MEMORANDUM OPINION

          PAULA XINIS UNITED STATES DISTRICT JUDGE

         Pending 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 granted.

         I. BACKGROUND

         A. Factual Background

         The 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.

         The 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.

         B. Procedural Background

         On July 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.

         II. DISCUSSION

         A. Defendants' Motion to Exclude the Expert Report and Testimony of Robert Panunto

         Because 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).

         Under 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, (2007)).

         The 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.[1] 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.

         Rule 702 provides:

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 methods; 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).

         1. The Qualifications of Robert Panunto

         As a 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)).

         An 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 ...


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