Metromont Corporation v. Sirko Associates, Inc. et al
Filing
174
ORDER denying as moot 102 Motion for Summary Judgment; denying 103 Motion to Exclude; denying 104 Motion for Summary Judgment; denying 105 Motion to Exclude; denying 106 Motion for Summary Judgment; denying 120 Motion for Leave to File; denying 121 Motion for Leave to File; denying as moot 139 Motion for Oral Argument; granting 169 Motion for Extension of Time to Identify Another Expert Witness. Signed by Judge Thomas W. Thrash, Jr on 5/23/2013. (ss)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
METROMONT CORPORATION,
Plaintiff,
v.
CIVIL ACTION FILE
NO. 1:11-CV-2407-TWT
SIRKO ASSOCIATES, INC., et al.,
Defendants.
OPINION AND ORDER
This is a breach of contract and tort action. It is before the Court on Defendant
Carolina Steel & Stone, Inc.’s (“Carolina Steel”) Motion for Summary Judgment
Against Plaintiff Metromont Corporation [Doc. 102], Defendants James M. Sirko and
Sirko Associates, Inc.’s (“Sirko”) Motion to Exclude Testimony of Mark Moore [Doc.
103], Sirko’s Motion for Summary Judgment Against Metromont Corporation [Doc.
104], Sirko’s Motion to Exclude Testimony of Dan Petruc-Naum [Doc. 105], Sirko’s
Motion for Summary Judgment Against Carolina Steel [Doc. 106], Sirko’s Motion for
Leave to File Amended Statement of Undisputed Material Facts and Amended Brief
in Support of Motion for Summary Judgment Against Metromont Corporation [Doc.
120], Sirko’s Motion for Leave to File Amended Statement of Undisputed Material
Facts and Amended Brief in Support of Motion for Summary Judgment Against
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Carolina Steel [Doc. 121], Carolina Steel’s Motion for Oral Argument [Doc. 139], and
Metromont’s Motion for Extension of Time to Identify Another Expert Witness [Doc.
169]. For the reasons set forth below, the Court DENIES Sirko’s Motion to Exclude
Testimony of Mark Moore [Doc. 103], DENIES Sirko’s Motion for Summary
Judgment Against Metromont Corporation [Doc. 104], DENIES Sirko’s Motion to
Exclude Testimony of Dan Petruc-Naum [Doc. 105], DENIES Sirko’s Motion for
Summary Judgment Against Carolina Steel [Doc. 106], GRANTS Metromont’s
Motion for Extension of Time to Identify Another Expert Witness [Doc. 169],
DENIES Sirko’s Motion for Leave to File Amended Statement of Undisputed
Material Facts and Amended Brief in Support of Motion for Summary Judgment
Against Metromont Corporation [Doc. 120], DENIES Sirko’s Motion for Leave to
File Amended Statement of Undisputed Material Facts and Amended Brief in Support
of Motion for Summary Judgment Against Carolina Steel [Doc. 121], DENIES as
moot Carolina Steel’s Motion for Summary Judgment Against Plaintiff Metromont
Corporation [Doc. 102], and DENIES as moot Carolina Steel’s Motion for Oral
Argument [Doc. 139].
I. Background
This case arises out of the partial collapse of a five story parking deck.
Metromont entered into a written subcontract with Hardin Construction Company to
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furnish and erect precast concrete components for the construction of the Centergy
Parking Deck located on Fifth Street in Atlanta, Georgia. Metromont then entered
into a contract with Sirko to design the parking deck, and entered into a contract with
Carolina Steel to build the parking deck. Sirko completed its design of the parking
deck on March 6, 2002. The construction of the parking deck was substantially
completed on December 2, 2002.
The connection design for the spandrel beams at Level 5 of the parking deck
was different than at any other level. The spandrel beams on Level 5 were connected
with a metal flap called a “PSA strap.” (Carolina Steel’s Br. in Opp’n to Sirko’s Mot.
to Exclude, at Ex. A.) Most of the spandrel connections on Level 5 failed in the years
after 2002. On June 29, 2009, the connections at spandrel 15 at Level 5 failed,
causing Level 5 to collapse onto Level 4 and subsequently causing all lower floors of
the parking deck to collapse. The parking deck collapse caused significant property
damage. Carolina Steel argues that the spandrel connections failed because of Sirko’s
flawed design; Sirko argues that the spandrel connections failed because of Carolina
Steel’s flawed construction of its non-defective design.
Metromont filed the Complaint on July 22, 2011, against Defendants Sirko,
James M. Sirko, and Carolina Steel [Doc. 1]. Carolina Steel answered the Complaint
on July 29, 2011, and asserted a Cross-claim against Sirko and Counterclaim against
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Metromont [Doc. 4]. Sirko answered the First Amended Complaint on August 22,
2011, and asserted a Cross-claim against Carolina Steel and Counterclaim against
Metromont [Doc. 15]. On March 19, 2013, Metromont’s claims against Carolina Steel
were voluntarily dismissed without prejudice and Carolina Steel’s counterclaims
against Metromont were voluntarily dismissed without prejudice as a result of
settlement [Doc. 172].
II. Legal Standards
A.
Daubert Standard
Federal Rule of Evidence 702 governs the admission of expert opinion
testimony. Pursuant to that rule, before admitting expert testimony a court must
consider: (1) whether the expert is competent to testify regarding the matters he
intends to address; (2) whether the methodology used to reach his conclusions is
sufficiently reliable; and (3) whether the testimony is relevant, in that it assists the jury
to understand the evidence or determine a fact in issue. Fed. R. Evid. 702; Daubert
v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993). Furthermore, “the
Court must find that [the expert] used a valid methodology based on reliable data to
reach his opinions.” Clarke v. Schofield, 632 F. Supp. 2d 1350, 1360 (M.D. Ga.
2009) (emphasis added). If the expert predicates his testimony on an assumption that
is belied by the evidence, the expert’s testimony is properly excluded. Ferguson v.
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Bombardier Services Corp., 244 Fed Appx. 944, 949 (11th Cir. 2007). The party
offering the expert's testimony has the burden to prove it is admissible by a
preponderance of the evidence. Allison v. McGhan Medical Corp., 184 F.3d 1300,
1306 (11th Cir. 1999).
B. Summary Judgment Standard
Summary judgment is appropriate only when the pleadings, depositions, and
affidavits submitted by the parties show that no genuine issue of material fact exists
and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).
The court should view the evidence and any inferences that may be drawn in the light
most favorable to the nonmovant. Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59
(1970). The party seeking summary judgment must first identify grounds that show
the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 323-24 (1986). The burden then shifts to the nonmovant, who must go beyond
the pleadings and present affirmative evidence to show that a genuine issue of material
fact does exist. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986).
III. Discussion
A.
Sirko’s Motion to Exclude the Testimony of Dan Petruc-Naum
Mr. Petruc-Naum is qualified to render an expert opinion that Sirko was
negligent in the design of the parking deck and that this negligence caused the parking
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deck to collapse. Mr. Petruc-Naum is the vice president and principal-in-charge of
Crosby Group, a structural engineering firm based in San Francisco. He has an
undergraduate degree, a Master’s Degree, and a Ph.D. in structural engineering.
(Carolina Steel’s Br. in Opp’n to Sirko’s Mot. to Exclude, at Ex. C.) He has been a
licensed professional engineer in the state of California since 1992, and has designed
many buildings and parking garages over the last thirty years. (Id.) For example, he
designed the San Francisco General Hospital parking garage, the Santa Clara County
Convention Center parking garage retrofit, the Bay Area Rapid Transit parking garage
in Pleasant Hill, California, and the Milpitas garage renovation and office addition in
Milpitas, California. (Id.)
Sirko argues that the methodology used by Mr. Petruc-Naum is not sufficiently
reliable, and that his expert testimony should therefore be excluded. Sirko argues that
the opinions expressed in the June 25, 2012 Final Report are unreliable because they
are not supported by tests or calculations, and that the September analysis is unreliable
because the information used in the models was vastly different than the actual design
used by Sirko.
In ruling on the admissibility of expert testimony, “[t]he focus must be ‘solely’
on the expert’s ‘principles and methodology, not on the conclusions that they
generate.’” KW Plastics v. United States Can Co., 131 F. Supp. 2d 1289, 1292 (M.D.
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Ala. 2001), quoting Daubert, 509 U.S. at 594-95. The Court’s responsibility is to
“make certain that an expert, whether basing testimony upon professional studies or
personal experience, employs in the courtroom the same level of intellectual rigor that
characterizes the practice of an expert in the relevant field.” Kumho Tire Co., Ltd. v.
Carmichael, 526 U.S. 137, 152 (1999). “[F]lexibility is essential in assessing the
reliability of expert testimony, and, as such ‘the law grants a district court the same
broad latitude when it decides how to determine reliability as it enjoys in respect to
its ultimate reliability determination.’” McGee v. Evenflo Co., Inc., No. 5:02-CV259-4, 2003 WL 23350439, at *4 (M.D. Ga. Dec. 11, 2003), quoting Kumho, 526
U.S. at 142 (emphasis in original).
“[U]nlike the fields of ‘laboratory or medical testing, which employ rigorous
and replicable protocols, technical fields such as engineering often involve more
idiosyncratic methods of design and testing.’” McGee, 2003 WL 23350439 at *4,
quoting Milanowicz v. Raymond Corp., 148 F. Supp. 2d 525, 532 (D.N.J. 2001). “As
a result, it is not unusual for a technical expert, such as an engineer, to state that his
opinions are not based upon any specific method, but are based solely upon his
general experience and knowledge after a review of the evidence.” Id. However,
“engineers routinely rely upon established principles of physics, material sciences, and
industrial design and often utilize technologically sophisticated and carefully
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calibrated testing methods and devices when arriving at their conclusions.” McGee,
2003 WL 23350439, at *5 (internal quotations omitted). “As such, the accepted
methodology, characterizing the practice of an expert in the field of engineering,
simply does not involve guess work or even conjecture; rather, accepted methodology
more often involves some inquiry into industry standards, practices, or publications
and results in conclusions based upon concrete data, testing, measurements, or
calculations.” Id.
Sirko argues that a methodology devoid of testing is unreliable. In this case,
physical testing of the parking deck structure was impossible. The parking deck
could not be reconstructed to the position it was in prior to the collapse for the purpose
of testing. The expert’s methodology in McGee v. Even-Flo Co., Inc., No. 5:02-CV259-4, 2003 WL 23350439 (M.D. Ga. Dec. 11, 2003), was found to be unreliable after
he failed to conduct testing of any automobile of the same make and model that he
claimed to be defectively designed in a products liability action. Mr. Petruc-Naum did
not have the option to test another parking structure with the exact same specifications
which had not yet been destroyed, so this case is easily distinguishable. McCorvey
v. Baxter Healthcare Corp., No. 99-1250-CIV, 2011 WL 36393134 (S.D. Fla. Sept.
30, 2011), rev’d on other grounds by McCorvey v. Baxter Healthcare Corp., 298 F.3d
1253 (11th Cir. 2002), is similarly distinguishable as the plaintiff alleged that his
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catheter was defectively designed, and the expert failed to test other catheters with the
same design in a manner that produced data supporting his conclusion. McCorvey,
2011 WL 36393134, at *7. In this case, Mr. Petruc-Naum did conduct testing, albeit
not physical testing. He computed the amount of load the PSA straps on Level 5
could handle and the amount of load to which they were subjected, and did computer
testing of the same.
Mr. Petruc-Naum concluded that the spandrel beam connections on Level 5
failed because of traumatic “shearing” in which the weight of the building upon the
beams caused the bolts on the PSA straps to snap in the middle. (Carolina Steel’s Br.
in Opp’n to Sirko’s Mot. to Exclude, at Ex. B.) Mr. Petruc-Naum concluded that the
PSA straps as designed by Sirko were inadequate to resist the weight loads which
were put upon them and that therefore the design failed to meet the standard of care
of an ordinarily prudent structural engineer. (Id. at Ex. C.) In short, there was more
load in terms of pounds placed upon the connections at spandrel 15 than they could
withstand. He found that on the beam where the collapse began, spandrel 15 at Level
5, the PSA straps were broken for several years. (Id. at Ex. A.)
Mr. Petruc-Naum extensively reviewed Sirko’s design drawings, visited the
parking deck shortly after the collapse and in a subsequent visit, and analyzed the
failed connections in the parking deck to determine the cause of the collapse.
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(Carolina Steel’s Br. in Opp’n to Sirko’s Mot. to Exclude, at Ex. C.) He also ran
mathematical calculations concerning the torsional forces (both tensile and shear)
placed on the spandrels. (Id.) Mr. Petruc-Naum added the weights of the spandrel
beam itself, the three double T beams, the concrete poured on top of the planks, and
the automobiles and people that would be in that portion of the parking deck. He
determined that given this combined weight, the PSA straps chosen by Sirko would
fail. He further stated that even if he revised the data according to Sirko’s contentions,
the PSA straps chosen by Sirko would still fail. If Mr. Petruc-Naum mistakenly
overestimated the weight of the building materials and calculated them to be too high,
this issue goes to the weight and credibility of the evidence, and not its admissibility.
See Quiet Tech. DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1345 (11th Cir.
2003) (holding that identifying alleged flaws in an expert’s analysis that may impugn
the accuracy of the results, even though based on generally reliable methods, “is
precisely the role of cross-examination.”); Cummings v. Standard Register Co., 265
F.3d 56, 65 (1st Cir. 2002) (holding that any shortcomings in the expert’s calculations
went to the weight of the testimony, not its admissibility). Mr. Petruc-Naum
corroborated his analysis of Sirko’s design with the use of a standard computer
software for design and engineering, the SAP2000. (Petruc-Naum Aff. ¶¶ 16-17.)
Using software widely used in similar situations in the expert’s field is often a reliable
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method for forming an opinion. Mr. Petruc-Naum’s causation opinion is not based
upon speculation. Cf. Nolley v. Greenlee Textron, Inc., No. 1:06-CV-228, 2007 WL
5369405 (N.D. Ga. Dec. 6, 2007) (finding that the expert “failed to provide any
rational explanation for how he arrived at his particular conclusions regarding
proximate causation.”). Therefore, the Court denies Sirko’s Motion to Exclude the
Testimony of Mr. Petruc-Naum.
B.
Sirko’s Motion to Exclude the Testimony of Mark Moore
Mark Moore is qualified to render an expert opinion that Sirko’s negligence
caused the parking deck to collapse. Mr. Moore is a professional engineer licensed
in Georgia. He has a Bachelor’s Degree in civil engineering, and a Master’s Degree
in engineering. He has over thirty years of experience in the field of structural
engineering, during which he has often evaluated structural design problems. He has
investigated other precast concrete parking deck failures, including a failed parking
deck at Vanderbilt University. (Moore Decl. ¶ 6.)
Mr. Moore’s methodology is sufficiently reliable. Mr. Moore visited the
parking deck, studied the design records, and performed engineering calculations of
the design. (Moore Decl. ¶ 10.) He observed that on Level 5, 21 of the 33 PSA strap
connections had fractured at the threaded end of the PSA straps before June 29, 2009.
(Moore Decl. ¶ 20.) Due to his observations and his knowledge and experience, Mr.
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Moore concluded that excess shear force on the PSA straps caused the fractures. (Id.)
Mr. Moore reviewed the design calculations produced by Sirko and the deposition
testimony of Darren Adams, the Sirko employee who performed the design, and
determined that Sirko did not take the shear forces on the Level 5 connections into
consideration when designing the parking deck. (Moore Decl. ¶ 24.) Mr. Moore
concluded that Sirko’s failure to design the spandrel beam connections to account for
shear forces in the PSA straps was negligent and caused the parking deck to collapse.
Examining the design records, the parking deck and failed spandrel connections
therein, and conducting a separate analysis of the forces placed on the connections and
the forces that they could withstand, are reliable methods for determining the cause
of the parking deck collapse. Therefore, the Court denies Sirko’s Motion to Exclude
the Testimony of Mark Moore.
C.
Metromont’s Motion for Extension of Time to Identify Another Expert
Witness
Metromont’s expert, Mark Moore, unexpectedly died on February 25, 2013.
Metromont has stated that Mr. Moore’s deposition testimony is not suitable for use
at trial.
Metromont should not be disadvantaged by the death of its expert.
Furthermore, as the Court has denied Sirko’s Motion to Exclude Mr. Moore’s
Testimony, Sirko no longer objects to Metromont’s Motion. (Sirko’s Br. in Opp’n to
Metromont’s Mot. for Ext. of Time, at 5.) The Court grants Metromont’s Motion for
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Extension of Time to Identify Another Expert Witness.
D.
Sirko’s Motion for Summary Judgment Against Carolina Steel
Sirko’s Motion for Summary Judgment against Carolina Steel is wholly
dependent on this Court excluding the expert testimony of Mr. Petruc-Naum and Mr.
Moore. The Court has denied Sirko’s Motion to Exclude Mr. Petruc-Naum’s
Testimony and thus there is evidence of negligent design by Sirko.
E.
Sirko’s Motion for Summary Judgment Against Metromont
Sirko’s Motion for Summary Judgment against Metromont is also wholly
dependent on this Court excluding the expert testimony of Mr. Petruc-Naum and Mr.
Moore. The Court has denied Sirko’s Motion to Exclude Mr. Petruc-Naum’s
Testimony and thus there is evidence of negligent design and breach of contract by
Sirko.
IV. Conclusion
For the reasons set forth above, the Court DENIES Sirko’s Motion to Exclude
Testimony of Mark Moore [Doc. 103], DENIES Sirko’s Motion for Summary
Judgment Against Metromont Corporation [Doc. 104], DENIES Sirko’s Motion to
Exclude Testimony of Dan Petruc-Naum [Doc. 105], DENIES Sirko’s Motion for
Summary Judgment Against Carolina Steel [Doc. 106], GRANTS Metromont’s
Motion for Extension of Time to Identify Another Expert Witness [Doc. 169],
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DENIES Sirko’s Motion for Leave to File Amended Statement of Undisputed
Material Facts and Amended Brief in Support of Motion for Summary Judgment
Against Metromont Corporation [Doc. 120], DENIES Sirko’s Motion for Leave to
File Amended Statement of Undisputed Material Facts and Amended Brief in Support
of Motion for Summary Judgment Against Carolina Steel [Doc. 121], DENIES as
moot Carolina Steel’s Motion for Summary Judgment Against Metromont
Corporation [Doc. 102], and DENIES as moot Carolina Steel’s Motion for Oral
Argument [Doc. 139].
SO ORDERED, this 23 day of May, 2013.
/s/Thomas W. Thrash
THOMAS W. THRASH, JR.
United States District Judge
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