Novum Structures LLC v. Larson Engineering Inc et al

Filing 40

ORDER signed by Magistrate Judge William E Duffin on 4/30/2019 DENYING 27 Plaintiff's Motion to Exclude Keith Pashina and Steven Talafous from testifying as experts. (cc: all counsel) (lz)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
NOVUM STRUCTURES, LLC,
Plaintiff,
v.

Case No. 16-CV-1568

LARSON ENGINEERING, INC. and
IRONSHORE SPECIALTY INSURANCE CO.,
Defendants.
ORDER DENYING PLAINTIFF’S MOTION TO STRIKE
DEFENDANTS’ EXPERTS
1. Facts and Background
Novum Structures, LLC, was hired to design and construct a large glass-covered
atrium. As it had done many times in the past, Novum brought in Larson Engineering,
Inc. to review and ultimately stamp the drawings that Novum drafted. During
construction, ice built up in the connection boxes where the trusses connected to the
edge beam, causing the welds in those connection boxes to crack. When investigation
revealed that the welds were insufficient to support the structure, Novum was required
to reconstruct significant portions of the structure.

Novum brought this action alleging that, because Larson stamped the drawings
for the structure, it alone is liable for the defects in the welds. On May 7, 2018, Larson
served Novum with “Defendants’ Rule 26(a)(2) Expert Disclosures.” (ECF No. 30-17.)
Larson’s expert disclosures identified two individuals as experts: Thomas Downs and
Keith Pashina. Larson stated that Pashina would offer testimony consistent with the
content of “his” report, which was attached. (Id.)
The report that was attached to Larson’s expert disclosures was signed by
Pashina as Principal and by Steven Talafous as Principal Engineer of Buildings
Consulting Group, Inc. (ECF No. 30-17 at 14.) Beginning with an “Executive Summary”
and concluding with “General Remarks,” the narrative portion of the report covers 14
pages. Throughout, all opinions in the report are expressed as “our” opinions. At the
end of the report are curriculum vitae for Pashina, Talafous, and Senior Engineer Mark
J. Duncan, who did not sign the report and is not otherwise mentioned in the report.
Apparently due to Pashina’s inability to answer various questions at his
deposition, on July 31, 2018, Larson served Novum with “Defendants’ First Amended
Rule 26(a)(2) Expert Disclosures.” (ECF No. 30-19.) In its amended expert disclosures
Larson added Talafous and Duncan as experts that it may call to offer the opinions
contained in the report submitted with its original expert disclosures.
Novum has moved to strike Pashina as an expert on the ground that he is not
qualified to offer the opinions expressed in his report. (ECF No. 27.) It also contends

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that Larson’s amended expert designation should be stricken “because it came months
too late.” (ECF No. 28 at 13.) Novum does not challenge Downs’s opinions or object to
him testifying as an expert.
2. Pashina’s Qualifications as an Expert
In its brief in support of its motion to strike Pashina as an expert witness Novum
quotes at length from his deposition testimony, identifying a variety of topics on which
Pashina is not qualified to testify. (ECF No. 28.) It contends that Pashina, a civil rather
than a structural engineer, has no relevant experience or education in the field of
structural steel engineering. (Id. at 2.) Novum argues that, because he has no
background or experience in structural engineering, at his deposition Pashina “could
not answer basic questions about the bases for a number of opinions contained in his
expert report and, instead, deferred to his colleagues.” (Id. at 4.) As a result, it contends,
Pashina should be precluded from testifying as an expert in this case.
Not until its reply brief did Novum identify any specific opinion contained in
Pashina’s report that it contends he is not qualified to offer. It quotes one paragraph in
the Executive Summary of the report that, it contends, “summarizes” the opinions of
Pashina and his firm:
BCG has a reasonable degree of engineering certainty [that] the Larson
design of Novum’s original atrium design met the requirements of the
Wisconsin Building Code. Oru review of provided documentation and
structural review found the alleged structural design deficiencies were not
present. The design review provided by Larson correctly determined the
Novum atrium design was sufficient to meet the rquirements of the
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Wisconsin State Building Code. It is our opinion Larson’s review of the
Novum design met the standard of a peer review.
(ECF No. 34 at 2-3.) It then argues that “most” of the ensuing pages of the report, and all
of the appendices, are devoted to describing the structural engineering analysis in
greater detail. (Id. at 3.)
Pashina admittedly is not qualified to offer all of the opinions included in his
report. He acknowledged as much at his deposition when he was frequently unable to
answer technical questions, deferring to Talafous and Duncan. (See ECF No. 28 at 9-11;
see also ECF No. 28 at 2-4.) However, the court does not find a basis for concluding that
Pashina wholly lacks technical knowledge that will help the trier of fact understand the
evidence or determine a fact in issue. As an engineer experienced in peer reviewing the
work of other engineers, he is qualified to offer opinions as to what was included within
this sort of a review. (See ECF No. 30-18 at 3-4.) He is also qualified to offer opinions
regarding the significance of an engineer stamping a drawing and the role of an
engineer of record. (See ECF No. 30-18 at 2-4.) Therefore, the court will deny Novum’s
motion to wholly bar Pashina from testifying as an expert.
3. Talafous as an Expert
It is clear from Pashina’s report that it was a collective effort. Nevertheless, for
whatever reason, Larson initially identified only Pashina as an expert regarding that
report. Not only was the report signed by both Pashina and Talafous, throughout it uses
terms like “our” and “we” and is phrased as a work of Building Consulting Group, Inc.
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rather than of any individual. But a party cannot call a corporation to testify as an
expert, and there is no equivalent to Rule 30(b)(6) for an expert witness. Larson should
have identified as experts all persons whose opinions went into the report.
Larson’s amended expert disclosures add Talafous and Duncan as experts. (ECF
Nos. 28 at 13; 30-19.) This was done on the deadline for all expert discovery and nearly
three months after the May 7, 2018 deadline for Larson to disclose its experts. (ECF No.
17.) In fact, the expert disclosure deadline had already been extended three times (Text
Only Order of August 21, 2017; ECF Nos. 12, 17) from an initial deadline of August 30,
2017 (ECF No. 8). Novum argues that the amendment came too late and that Talafous
and Duncan should not be allowed to testify as experts.
Larson states that it is not planning on calling Duncan as an expert. (ECF No. 29
at 15, n. 9.) Thus, the only issue is whether Larson should be precluded from calling
Talafous as an expert on the ground that its disclosure of him as an expert was untimely.
3.1. Compliance with Rule 26(a)(2)
The proper disclosure of expert witnesses is not a pointless formality; it allows
the opposing party to prepare for trial. Karum Holdings LLC v. Lowe's Cos., 895 F.3d 944,
952 (7th Cir. 2018) (quoting Musser v. Gentiva Health Servs., 356 F.3d 751, 757 (7th Cir.
2004)). Larson argues that, by timely disclosing an expert report signed by Pashina and
Talafous, it complied with Rule 26(a)(2) and properly disclosed Talafous as an expert.

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The fact that Talafous also signed the report was not enough to comply with Rule
26(a)(2), which “demands a formal designation for expert disclosures.” Karum Holdings,
895 F.3d at 951. The rule states that “this disclosure must be accompanied by a written
report ….” Fed. R. Civ. P. 26(a)(2)(B). The use of “accompanied” makes clear that the
written report is distinct from the disclosure. Moreover, Larson has failed to
demonstrate that the report contained all the information required under Rule
26(b)(2)(B).
3.2. Compliance with Rule 26(e)(2)
The court also rejects Larson’s argument that its belated disclosure of Talafous as
an additional expert witness was merely a supplement to its initial disclosures under
Rule 26(e)(2). The court reads Rule 26(e)(2) as establishing the duty to supplement
information regarding a previously disclosed expert; it does not authorize a party to
disclose a new expert under the guise of supplementation. Larson has not presented
any authority to support its reading of the Rule.
3.3. Sanction Under Rule 37(c)(1)
Thus, the court finds that Larson violated Rule 26(a) by not timely disclosing
Talafous as an expert. The Court of Appeals for the Seventh Circuit has stated that “the
sanction of exclusion is automatic and mandatory unless the sanctioned party can show
that its violation of Rule 26(a) was either justified or harmless.” David v. Caterpillar, Inc.,
324 F.3d 851, 857 (7th Cir. 2003) (quoting Salgado v. Gen. Motors Corp., 150 F.3d 735, 742

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(7th Cir. 1998)); Fed. R. Civ. P. 37(c)(1). In assessing whether the violation was either
justified or harmless, the court should consider “(1) the prejudice or surprise to the
party against whom the evidence is offered; (2) the ability of the party to cure the
prejudice; (3) the likelihood of disruption to the trial; and (4) the bad faith or willfulness
involved in not disclosing the evidence at an earlier date.” David, 324 F.3d at 857. The
court finds these factors do not warrant excluding Talafous as an expert witness.
To begin with, just as it should have been clear to Larson, it should have been
immediately apparent to Novum that the report was a collective effort. Talafous signed
the report as the “Principal Engineer,” the cover letter directed questions to either
Pashina or Talafous, and Talafous’s resume was appended to the report. (ECF No. 30-8.)
Thus, at a minimum, Novum should have suspected that Larson erred in not also
naming Talafous as an expert. Any confusion was eliminated during Pashina’s
deposition where he stated explicitly that Talafous was responsible for certain
conclusions in the report. (See ECF No. 28 at 9-12 (quoting from Pashina’s deposition).)
Thus, Novum certainly cannot say it was blindsided by Larson’s subsequent disclosure
of Talafous as an expert.
However, it is undisputed Larson disclosed Talafous as an expert two months
late. And although in hindsight it is easy to say that Larson should have appreciated
Talafous’s role in preparing Pashina’s report, there is no reason to believe it actually did.
In other words, there is nothing to suggest that Larson’s delay was tactical or

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intentional. Therefore, the court has no reason to ascribe bad faith or willfulness to
Larson.
Importantly, Larson acted promptly once it became apparent that Pashina could
not offer some of the opinions expressed in the report. It amended its expert witness
disclosures five days after Pashina’s deposition. And immediately after Pashina’s
deposition, even before formally amending its expert disclosures and apparently
without being asked by Novum, Larson offered to make Talafous available for a
deposition.
The fact that Novum apparently never responded to the offer to depose Talafous
is relevant in assessing whether Novum is prejudiced by Larson’s tardy disclosure. The
court acknowledges that, if Talafous is allowed to testify as an expert, absent
amendment of the scheduling order by Judge Adelman, Novum will have lost its
opportunity to depose him or to challenge his competence under Rule 702 or Daubert.
Having said that, if this court allows Larson to call Talafous as a belatedly-named
expert, there is no reason to believe Judge Adelman will not grant Novum the
opportunity to take his deposition. Because Judge Adelman has not referred this case to
this court for full pretrial management (ECF No. 36), this court lacks the authority to
grant Novum relief from the scheduling order. Whether to extend discovery is a
decision reserved to Judge Adelman. Novum could have prevented this potential
prejudice by taking Larson up on its offer to make Talafous available for a deposition.

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Instead, it made a tactical decision to attempt to bar both Pashina and Talafous from
testifying at trial.
Also undermining Novum’s claim of prejudice is the fact that permitting Talafous
to testify as an expert will not require the repetition of any costly proceedings. For
example, this is not a case where allowing Talafous to testify will require Novum to redo its motion for summary judgment. Cf. Musser v. Gentiva Health Servs., 356 F.3d 751,
759 (7th Cir. 2004) (noting, in part, that defendant was harmed by the additional costs of
preparing a new motion for summary judgment). The resolution of that motion was
unaffected by Talafous’s opinions. Moreover, because Talafous was not previously
deposed, Larson’s tardy disclosure of him as an expert will not require the repetition of
a deposition. Cf. Karum Holdings, 895 F.3d at 952 (noting prejudice because, although
witness was deposed as a fact witness, he would have to be re-deposed regarding his
expert opinions). And given that a trial has not yet been scheduled, there is no risk that
the trial will be disrupted by Larson’s untimely disclosure.
4. Novum’s Alternative Argument
Novum also argues that Pashina, and presumably Talafous, should be barred
from testifying because their opinions are inconsistent with the testimony of Larson’s
engineers, who testified that Larson was the engineer of record. Novum argues that the
opinions contradict Wisconsin law regarding the obligations of an engineer who stamps
a design.

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As discussed more fully in the court’s report and recommendation regarding
Novum’s motion for partial summary judgment, Novum is placing too much weight on
the characterization of someone as the “engineer of record.” While this might have been
a convenient shorthand for the relationship between Novum and Larson, the actual
nature of the relationship and agreement between the parties matters more than the
label they may have in hindsight attached to it. A reasonable finder of fact could
conclude that Larson’s duties to Novum were limited to reviewing the drawings
Novum provided and ensuring that they satisfied the local building code.
Novum also mischaracterizes the statute and regulation addressing an engineer’s
professional responsibility to not stamp a drawing unless he was personally involved in
the drafting. Although the statute and regulation might be relevant in suggesting the
duty of care owed by a professional engineer, they do not necessarily establish that an
engineer is responsible as if he designed the plan, solely by virtue of having stamped
the design.
5. Conclusion
In sum, Pashina is admittedly unqualified to offer all of the opinions reflected in
the report he jointly prepared with Talafous. However, Pashina is not categorically
disqualified as an expert and Novum has not asked the court to parse his opinions to
articulate which he may offer and which he may not. Rather, it appears that, when
Pashina was asked for an opinion outside his expertise, he readily acknowledged it.

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As for Talafous, Larson violated Rule 26(a) when it failed to timely disclose him
as an expert witness. However, barring him from testifying as an expert is not an
appropriate sanction under Rule 37(c)(1).
Finally, the court rejects Novum’s argument that Pashina must be barred from
testifying because his opinions are inconsistent with the undisputed facts of the case or
Wisconsin law. As explained in the court’s report and recommendation regarding
Novum’s motion for partial summary judgment, Novum overstates the significance of
these.
IT IS THEREFORE ORDERED that Novum’s motion to exclude Pashina and
Talafous from testifying as experts (ECF No. 27) is denied.
Dated at Milwaukee, Wisconsin this 30th day of April, 2019.

_________________________
WILLIAM E. DUFFIN
U.S. Magistrate Judge

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