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June 14, 2004.

THE CONECO CORPORATION, et al., Defendants.

The opinion of the court was delivered by: RANDOLPH TREECE, Magistrate Judge


The Defendants jointly seek a Motion in Limine, pursuant to FED. R. CIV. P. 26, and FED. R. EVID. 402, 702, and 802, to preclude the Plaintiff's expert testimony at trial. Defendants attack Plaintiff's expert and his testimony on several grounds: (1) this expert is not qualified to serve as an expert in this action; (2) Plaintiff's expert's report and testimony are not sufficiently reliable to be admitted at trial; and (3) the expert and his report will not assist the trier of fact.

Based upon the reasoning below, the Defendants' Motion is denied.*fn1 I. FACTUAL HISTORY

  In 1995, the Plaintiff desired to pursue a significant energy conservation project for the entire school district and retained The Conservation Group (TCG), an energy project, to assist in implementing an energy management system. Amongst multiple conservation measures, the Plaintiff contemplated the installation of cogeneration units in the Roundout Valley High and Middle Schools. In 1996, TCG entered into a joint venture with Defendant Coneco as its implementation partner. Dkt. No. 36, Ex. 5 (Joint Venture Agreement). Coneco is a wholly owned subsidiary of Defendant Boston Edison Company and its affiliates are N'Star, BEC Energy, Commonwealth Energy System, BEC NewCo, Inc., and Boston Edison Technology Group, Inc., who are all Defendants in this case. Eventually, on or about June 11, 1997, the parties entered into the Guaranteed Savings Energy Management Agreement (GSEMA). Dkt. No. 37, Ex. 1 (GSEMA Agreement). Under this comprehensive energy contract, in addition to installing cogenerations units, the Defendants agreed to remove and replace boilers, perform asbestos abatement, install hot water heaters and storage tanks, install new roofs, and perform maintenance of these items various terms ranging from a five to fifteen years. Id. Defendants performed many of these construction obligations and installations, though the adequacy of such performance and installation are in dispute.

  The Plaintiff claims that the Defendants breached the GSEMA. Among other things, the Plaintiff alleges: (1) the cogeneration units are inoperable; (2) Defendants abandoned their warranty and maintenance obligations, forcing the Plaintiff to hire a third party to maintain the system; (3) Defendants abandoned the maintenance warranty and annual preventive maintenance on the installed roofs; (4) Defendants failed to properly retrofit the HVAC units and abandoned the respective warranties and maintenance thereof; (5) the installed hot water heaters were defective and had to be replaced; and (6) due to Defendants' failure to honor its management and monitoring responsibilities and the failure of the cogeneration units, the Plaintiff is unable to realize the energy savings guaranteed in the GSEMA. Plaintiff further charges that shortly after the installation of the energy conservation measures, in January 1999, Coneco was dissolved by Boston Edison Company and thereafter abandoned its obligation to the Plaintiff under this agreement. To reiterate, some aspects of the agreement had fifteen year warranty and maintenance obligation. Dkt. No. 35, Leah L. Murphy, Esq., Aff; Dkt. No. 23/48, Robert S. McEwan, Jr., Esq., Aff. Because, as the Plaintiff claims, the cogeneration facility is inoperable and the Defendants abandoned the warranty and maintenance obligations set forth in the GSEMA, the Plaintiff was forced to contract with third-parties to fulfill these obligations. Dkt. No. 35 at ¶¶ 14 & 19.

  The Plaintiff commenced this action on November 7, 2001, alleging seven causes of actions, all essentially based upon a breach of contract, and seeking general and consequential damages. Dkt. No. 1, Compl. The Defendants have answered the Complaint and filed counterclaims. Dkt. No. 4, Ans.*fn2

  The Plaintiff hired George Sansoucy, a licensed professional civil engineer (PE) from New Hampshire, to provide an expert opinion in this case with regard to the extent of damages sustained. Furthermore, Mr. Sansoucy would provide an explanation of the construction, design and energy conservation measures contemplated by the GSEMA, yet allegedly breached by the Defendants performance or lack thereof. Dkt. No. 35 at ¶¶ 35 & 36. The Plaintiff's expert's report was issued in September 2003 (Dkt. No. 25/49, Ex. B), and Mr. Sansoucy was deposed on October 28, 2003 (Dkt. No. 25/49, Ex. C). Notwithstanding the pending Motion and Cross Motion for Summary Judgment, this matter is, for the most part, ready for a bench trial. See infra n. 2.


  A. Expert Testimony

  As stated above, Defendants have filed a Motion challenging Mr. Sanscoucy's qualifications to serve as an expert in this case, the relevance of his opinion and the reliability of his methodology in arriving at his opinion, the reliability of his testimony as a whole, and the lack of value of such testimony in that his testimony would not assist a trier of fact in understanding the evidence or in determining a fact in issue.

  The admissibility of expert testimony is govern by FED. R. EVID. 702, which reads as follows: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

 This Rule can be distilled further into two major components: (1) the witness must be qualified as an expert in either scientific, technical, or specialized matters, and (2) the expert's testimony must be able to assist the trier of the facts. See United States v. One Parcel of Property located at 31-33 Yonkers Street, 930 F.2d 139, 141 (2d Cir. 1991).

  The district court is the "gatekeeper" for such preliminary assessment such as determining whether the expert testimony is scientifically valid, has a reliability foundation, whether the methodology can be applied to the facts of the case, and is relevant to the task at hand Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 582, 592-93 (1993); McCullock v. H.B. Fuller Co., 61 F.3d 1038, 1042 (2d Cir. 1995). The trial court has always had broad latitude over the admission of evidence and it has been particularly broadened with respect to the admissibility or exclusion of expert evidence. Bic Corp. v. Far Eastern Source Corp., 23 Fed. Appx. 36, 38, 2001 WL 1230706, *1 (2d Cir. 2001) (citing Salem v. United States Lines Co., 370 U.S. 31, 35 (1962)); McCullock v. H.B. Fuller Co., 61 F.3d 1038.*fn3 This principle of broad discretion is never more evident where the court has to determine if the expert testimony will be helpful to the fact finder. Bic Corp., 23 Fed. Appx. at 38. In this respect, "[t]he trial court's view of helpfulness is entitled to deference." Id. (citing George v. Celotex Corp., 914 F.2d 26, 28 (2d Cir. 1990) ("District court's determination of relevance will not be disturbed unless it evidences an abuse of discretion.")). Such deference is particularly profound with respect to bench trials because the trial court is "presumed to be able to exclude improper inferences from his or her own decisional analysis." Id. at 39; see also Schultz v. Butcher, 24 F.3d 626, 631-32 (4th Cir. 1994) ("For a bench trial, we are confident that the district court can hear relevant evidence, weigh its probative value and reject any improper inferences."); 11 C. WRIGHT & A. MILLER & M. KANE, FEDERAL PRACTICE AND PROCEDURE § 2885 (2d ed. 1995) ("In non jury cases the district court can commit reversible error by excluding evidence but it is almost impossible for it to do so by admitting evidence."). In the final analysis, especially considering the ...

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