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
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.
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 ...