25 Calhoun CMB LLC v. Concord Park-Charleston LLC

Filing 48

ORDER AND OPINION: Seller's partial motion to exclude certain opinions of Stephen J. Geiger, P.E. (Dkt. No. 42 ) is GRANTED IN PART AND DENIED IN PART. The motion is granted to the extent that Geiger may not testify exp licitly that Seller's actions constitute negligence or gross negligence. Seller's motion is otherwise denied. AND IT IS SO ORDERED. Signed by Honorable Richard M Gergel on 9/8/21.(ltap, ) Modified document type (opinion) on 9/8/2021 (sshe, ).

2:19-cv-02537-RMG

Date Filed 09/08/21

Entry Number 48

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
25 Calhoun CMB, LLC,

)
)
Plaintiff,
)
)
v.
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Concord Park/Charleston, LLC,
)
)
Defendant.
)
___________________________________ )

Civil Action No. 2:19-cv-2537-RMG

ORDER AND OPINION

Before the Court is Defendant Concord Park/Charleston, LLC’s partial motion to exclude
certain opinions of Stephen J. Geiger, P.E. (Dkt. No. 42). For the reasons set forth below, the
Court grants in part and denies in part Defendant’s motion.
I.

Background
This lawsuit concerns Plaintiff 25 Calhoun CMB, LLC (hereinafter “Buyer”)’s acquisition

of real property located at 25 Calhoun Street in Charleston, South Carolina (“25 Calhoun” or the
“Building”). On February 1, 2013, an entity related to Buyer, CMB Property Company LLC
(“CMB”), purchased 25 Calhoun from Defendant Concord Park/Charleston, LLC (hereinafter
“Seller”) pursuant to a certain Purchase and Sale Agreement (“PSA”). (Dkt. No. 44-9). On March
12, 2013, CMB assigned Buyer ownership of 25 Calhoun. See Assignment and Assumption, (Dkt.
No. 26-2). Per the Assignment and Assumption, Buyer accepted “to be bound by all the terms and
conditions in and obligations” of CMB under the PSA. (Id.).
Buyer alleges that after acquiring 25 Calhoun, “the parking lot and portions of the building
began experiencing problems, including . . . cracking, movement, and deterioration.” Buyer
alleges it discovered 25 Calhoun contained “dangerous conditions in the parking lot, such as

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undulations and potholes caused by subsidence, or movement of the subgrade.” Buyer undertook
repair efforts to cure deficiencies in the property. (Dkt. No. 27 ¶¶ 7-8, 11).
On July 14, 2021, Seller moved to exclude two paragraphs from an affidavit (the
“Affidavit”), dated February 28, 2020, executed by one of Buyer’s experts, Stephen J. Geiger, P.E.
(Dkt. No. 42). Buyer engaged Geiger to “evaluate the engineering decisions made by the
geotechnical engineer for [25 Calhoun] and the adequacy of the due diligence materials provided
to Purchaser by Seller.” (Dkt. No. 42-1 ¶ 5). Seller seeks to exclude the following paragraphs:
8. The Purchase Agreement [the PSA] requires the Seller to deliver all engineering
studies and any-third party consultant reports regarding the condition of the
property, including those pertaining to soil and groundwater sampling.
...
11. The failure to provide any of the WPC and AET reports identified above would
be negligent and grossly negligent by the seller.
(Id.). On July 28, 2021, Buyer filed a response in opposition, (Dkt. No. 45), to which Seller filed
a reply, (Dkt. No. 46).
Seller’s motion is fully briefed and ripe for disposition.
II.

Legal Standard/Analysis
Seller argues that the opinions in paragraph 8 should be excluded because Geiger is neither

a licensed real estate broker nor an attorney. See (Dkt. No. 42 at 5) (“Here, while Geiger may be
qualified to render opinions in the fields of geotechnical engineering and subsets of same, Geiger
does not have a real estate license, a real estate broker’s license, and has never worked in the real
estate field. Furthermore, he is not a licensed attorney.”). As to paragraph 11, Seller argues that
because Buyer is not bringing a cause of action for negligence, Geiger’s testimony is irrelevant.
(Id.).
Federal Rule of Evidence 702 provides:
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A witness who is qualified as an expert by knowledge, skill, experience, training,
or education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge will help the
trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the
case.
Fed. R. Evid. 702. In Daubert v. Merrell Dow Pharmaceuticals, Inc., the Supreme Court
interpreted Rule 702 as placing the court in a “gatekeeping role” between expert evidence and the
trier of fact. 509 U.S. 579, 589, 597, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993); see also Kumho
Tire Co. v. Carmichael, 526 U.S. 137, 152, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999) (holding
that Daubert applies to all forms of expert evidence).
As to paragraph 8, the Court denies Seller’s motion. The Court finds that Geiger is
qualified to testify as to “the adequacy of the due diligence materials provided to Purchaser by
Seller.” See Geiger CV, (Dkt. No. 45-1 at 3) (noting Geiger has “performed over 100 property
condition surveys” for a variety of clients); (Dkt. No. 45-2 at 4-5) (testifying that a “substantial
part” of the work Geiger performs relates to “property condition assessments” or work that
encompasses “transactional due diligence”); (Id.) (“Q: So in terms of your expertise in there, you
could provide opinions as it relates to the performing of those property conditions assessment
reports; is that right? A: Yes, sir.”). Further, in paragraph 8, Geiger simply recites the requirements
of § 4.1 the PSA—a recital the accuracy of which Seller does not even contest.
In sum, the Court finds Geiger qualified to testify as to the “adequacy of the due diligence
materials provided to Purchaser by Seller.” Seller’s motion is thus denied as to paragraph 9.
As to paragraph 11 of the Affidavit, the Court grants Seller’s motion only to the extent that
Geiger may not testify as to Seller’s “negligence” or “gross negligence.” See Hermitage Indus. v.

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Schwerman Trucking Co., 814 F. Supp. 484, 486 (D.S.C. 1993) (excluding proffered testimony of
expert that a party was “negligent” and concluding “that testimony by a witness in the form of a
legal conclusion is clearly inadmissible”) (citing and quoting Adalman v. Baker, Watts & Co., 807
F.2d 359, 366 (4th Cir. 1986)). The motion is otherwise denied as to paragraph 11 as the Court
finds said testimony likely relevant to, for example, Buyer’s breach of contract claim. See PSA,
(Dkt. No. 18-3 § 4.1) (requiring Seller make available “environmental reports, architectural and
engineering studies, and other reports by third-party consultants pertaining to the environmental
condition of the Property, [and] the structural condition of the property”); (Dkt. No. 42-1 ¶ 9)
(concluding that the “WPC and AET reports identified above are engineering studies and thirdparty consultant reports regarding the conditions at the property”).
III.

Conclusion
For the foregoing reasons, Seller’s partial motion to exclude certain opinions of Stephen J.

Geiger, P.E. (Dkt. No. 42) is GRANTED IN PART AND DENIED IN PART. The motion is
granted to the extent that Geiger may not testify explicitly that Seller’s actions constitute
“negligence” or “gross negligence.” Seller’s motion is otherwise denied.
AND IT IS SO ORDERED.
s/ Richard Mark Gergel
Richard Mark Gergel
United States District Judge
September 8, 2021
Charleston, South Carolina

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