Pennsylvania: Construction: Inadequate Expert Report Results In Non-Suit, PCCP
February 5, 2013

Philadelphia Contribution Insurance Co. vs. Waggle, et al., PCCP, January Term, 2010, No. 02367

by Daniel J. Rucket

In February 2008, masonry contractor Kevin Waggle began underpinning the basement party wall of a home in Old City Philadelphia.  After excavating part of the basement floor, Waggle began digging underpinning pockets.  The same day he started the first three pockets, the neighboring property owner had his own contractor remove sidewalk bricks and concrete in front of his home using a jackhammer and sledgehammer.  That evening, the neighbor complained that there were cracks in the party wall of his home.  Waggle inspected his work the next morning and found that no damage had occurred to his side of the wall.  The neighbor then made a claim to his homeowner’s insurance company.

Waggle insisted that it was not possible to have caused damage to the other side of the party wall, primarily because the party wall was constructed of two brick walls connected by bricks set sideways throughout the wall and there was no damage to his side of the wall.  So, it was not possible for the other side of the party wall to drop without Waggle’s side dropping or exhibiting any damage.

An engineer was retained on behalf of the neighbor’s insurance company to inspect the neighbor’s home to determine the extent and cause of the damage.  The engineer went to the neighbor’s home, but did not go into the home in which Waggle had performed his work, speak with anyone involved with the construction (including two structural engineers), speak with the neighbor, review any plans, or review any documents or photographs of the construction or claimed damages.  The engineer was told only that underpinning work had been performed next door.  The engineer did not know any details about the underpinning work.  The engineer was not aware that another contractor was doing work on the sidewalk.  Armed with only his visual observation of cracks, the engineer concluded that the “construction activities” next door caused the damage to the party wall.

The neighbor’s insurance company filed a subrogation suit in Philadelphia County against Waggle.  At the conclusion of discovery, the engineer prepared a written expert report for this litigation in which he concluded only that the party wall experienced movement from “construction activities” next door.  The engineer failed to discuss in his report any details about the work that Waggle conducted, the manner in which it allegedly was not conducted properly, or how any specific “construction activities” caused the party wall to move.

The case was assigned to the Honorable Marlene Lachman for trial.  We filed a motion in limine to preclude the engineer from testifying at trial because the engineer failed to set forth his opinions with specificity in his report as required by Pa.R.Civ.P. 4003.5.  Judge Lachman partially granted the motion, allowing the engineer to testify that the “construction activities” caused movement of the other side of the wall, but precluding him from testifying to any acts or omissions of Waggle that caused the wall movement because he failed to address any standard of care that applied to the work, breach of any standard of care, or how the breach caused the alleged damages in his reports.

The case proceeded to trial for over four days.  At the end of the plaintiff’s case, we made a motion for non-suit, which Judge Lachman granted, ruling that the plaintiff had failed to present any evidence that Waggle’s work caused the neighbor’s wall to move, particularly because the engineer had failed to set forth anything in his report about Waggle’s work, how it was allegedly done improperly, and how it caused the movement of the party wall.

Daniel J. Rucket concentrates his practice in general casualty litigation, including premises liability and construction defect and accident cases. He is a 1990 graduate of Franklin and Marshall College and earned his law degree from William & Mary Law School in 1993. He is admitted to practice in Pennsylvania and the U.S. District Courts for the Eastern and Middle Districts of Pennsylvania. Dan has been selected as a Pennsylvania SuperLawyer in 2010, 2011, 2012 and 2013.

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