A district judge in Florida decided that a civil engineering expert witness cannot testify about the alleged defects of Knauf drywalls because his testimony was generic.
Defendants Knauf Gips KG and Knauf New Building System (Tianjin) Co. Ltd.’s (“KPT”) are foreign manufacturers accused of constructing defective drywalls that have been installed in homes across the country. Plaintiff Ina Helmick is the former owner of one such home.
Because of the commonality of facts, all federal litigation involving this drywall was designated as a multidistrict litigation and consolidated for pretrial proceedings in the District Court for Eastern Louisiana. Subsequently, the cases in the MDL were remanded and transferred to the relevant district. Plaintiff Ina Helmick’s case was assigned to the District Court for the middle district of Florida.
Defendants sought to exclude two experts, Howard Ehrsam and Shawn Macomber.
Civil Engineering Expert Witness
Howard Ehrsam P.E. is a civil engineer and president of Chinese Drywall Screening, LLC. He has worked in the fields of general contracting, land development, consulting and civil engineering design. He obtained his bachelor’s degree from the University of Florida in Civil Engineering in 1995. Ehrsam is a leading resource and advocate for property owners, contractors, attorneys, and real estate agents.
Construction Expert Witness
Shawn Macomber has a Master’s Degree in Construction Management from Louisiana State University. He has been certified as a Defective Drywall Consultant and Remediator as well as an inspector by several different certifying bodies. He is an ICC Certified Residential Building Inspector and the qualifying party for Healthy Home Solutions, LLC as a Louisiana State Residential Building Contractor.
Discussion by the Court
Howard Ehrsam
First, Defendants sought to exclude in full the testimony and expert opinion of Ehrsam, a civil engineer and president of Chinese Drywall Screening, LLC. Plaintiff retained Ehrsam to opine on the common effects of Knauf Chinese drywall on the components of homes, including property within the home. According to Defendants, Ehrsam’s general opinions were unreliable, speculative, and otherwise unhelpful to the trier of fact.
Ehrsam Provided Generic Opinions
Ehrsam did not perform an individualized inspection or analysis of Plaintiff’s former property or any drywall allegedly within the property. Instead, he provided generic opinions on the following:
- Whether defective Knauf drywall produces gasses and what gasses are emitted;
- Whether defective Knauf drywall off gassing causes corrosion in the home and the extent of that corrosion;
- Whether defective Knauf drywall causes damage to components in a home and which typical components (wiring, plumbing, a/c, etc.);
- Whether defective Knauf drywall causes damage to personal property in the home and which items or contents are affected (computers, televisions, etc.); and,
- Explain the difference between defective Knauf drywall and domestic made drywall and the off gassing that has been known to occur by each.
Ehrsam once acknowledged that there were other factors besides defective drywall that can cause corrosion or damage to property or items. In other words, he agreed that he cannot determine whether drywall caused damage in a particular Plaintiff’s home without an inspection.
Ehrsam’s generic testimony will not be helpful to the jury
The Court agrees with Defendants that this generic testimony will not be helpful to the jury considering the Plaintiff will have to prove specific and individual causation and damages at trial. As Defendants put it, “ a general opinion that KPT drywall emits gas and causes corrosion, without any correlation to the drywall or damage in Plaintiff’s property, is unhelpful and usurps the jury’s role as factfinder.” In conclusion, the potential to confuse or mislead the jury substantially outweighs the probative value of the generalized testimony.
Shawn Macomber
Defendants sought to exclude or at least limit the expert opinion and testimony of Macomber, who is a certified Chinese drywall inspector. Macomber inspected Plaintiff’s former property and estimated the cost of remediating the property. According to Defendants, “Macomber’s opinions are not relevant or helpful to the trier of fact because of the application of the economic loss rule” and “Macomber’s inspection and remediation cost opinions are unreliable and speculative.”
The Economic Loss Rule (ELR) is a legal doctrine that prevents parties from recovering economic loss in most tort actions unless the victim has also suffered personal injury or property damage.
Because of the significant limitation on damages under the economic loss rule, Macomber’s opinions on the cost of remediation are irrelevant and unhelpful to the jury.
Because of the significant limitation on damages under the economic loss rule, the Court held that Macomber’s opinions on the cost of remediation are irrelevant and unhelpful to the jury. As Defendants explain, “because Macomber’s report advances no opinion regarding damage to Plaintiff’s ‘other property,’ which is the only damage permitted pursuant to Florida’s economic loss rule, it provides no support for the damages Plaintiff may recover.”
Defendants also sought to exclude Macomber’s opinions and testimony regarding the presence of Defendants’ drywall in Plaintiff’s former home or the causes of damage to that home. Since the alleged flaws Defendants identified as to Macomber’s inspection and identification of the drywall concerned the weight to be given to the opinions and testimony, the Court denied the motion.
Held
The Court granted in part and denied in part the Defendants’ motion to exclude or limit the expert testimony of Howard Ehrsam and Shawn Macomber to the extent discussed above.
Key Takeaways:
- Ehrsam cannot attach any degree of certainty to a finding that any uppercase KPT drywall impacted the property in question. In other words, a general opinion that KPT drywall emits gas and causes corrosion, without any correlation to the drywall or damage in Plaintiff’s property, is unhelpful.
- Most of the damages Plaintiff seeks to qualify as economic damages are not recoverable in product liability tort claims. However, of these, only damages to ‘other property within the real property’ are recoverable. Macomber’s opinions on the cost of remediation were irrelevant and unhelpful to the jury
Case Details:
| Case Caption: | Helmick V. Knauf Gips Kg Et Al |
| Docket Number: | 8:21cv2777 |
| Court Name: | United States District Court, Florida Middle |
| Order Date: | May 02, 2024 |
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