A general contractor sued the Geodesist read plans on construction siteCity for breach of contract; the plaintiff seeks to recover its losses caused by City’s suspension of public highway project. The City raised several issues on appeal, among these was that the trial court erred in permitting an accountant and a civil engineer to testify as expert witnesses.

Contractor won the bid on the City’s highway project. The State Department of Transportation was responsible for ensuring that the project complied with all applicable state and federal specifications; it issued “Publication 408,” which provided the specifications for all its construction projects. The project’s bid documents didn’t disclose possible hazardous materials at the site, even though the City’s consultant advised of this possibility.

Contractor began work, but later learned that the site might be contaminated by arsenic. It notified the City, which suspended work on the project in late 2009.

The suspension increased the Contractor’s bid by $2.8 million, and the City wouldn’t approve the additional expenses. Contractor sued to recover its losses on the project, and the jury awarded it $900,000 to cover losses caused by the City’s suspension of the project.

On appeal, the City argued that the trial court improperly allowed Contractor’s accounting expert to opine on the meaning and application of the highway construction specifications found in DOT’s Publication 408. It also argued that the trial court shouldn’t have permitted Contractor’s engineering expert to give an opinion on arsenic concentration levels and testing procedures because he wasn’t a geologist or environmental engineer.

In her opinion, the judge explained that the standard for qualification of an expert witness in Pennsylvania was liberal, and that an expert is qualified to provide expert testimony when he or she has “any reasonable pretension to specialized knowledge on the subject” in question. If the expert witness meets this standard, the judge said that the expert may testify and the weight given to this testimony is for the trier of fact to determine. An expert may be qualified to render an expert opinion based on training and experience. The key question, she wrote, is whether the witness possesses “more knowledge than is otherwise within the ordinary range of training, knowledge, intelligence or experience.”

Contractor’s accounting expert had more than 30 years of experience in construction accounting. The City objected to his testimony about the DOT’s Publication because it wasn’t an accounting document; however, the trial court recognized him as an expert in the field of accounting “with a broad focus … in the construction field.” Contractor’s accounting expert testified that he used the formulas in Publication 408 as a “guideline” for calculating damages. As a result, the appellate court rejected the City’s contention that only a civil engineer was permitted to testify about the formulas in the DOT publication. The judge explained that Contractor’s accounting expert was an expert in construction accounting and used, in part, Publication 408 to calculate damages. The accounting expert provided the jury with the basis of his damage calculation, which included Publication 408. The judge reasoned that the jury wasn’t required to apply his proffered damages. It could have used Publication 408—an exhibit in the trial—to render a different damage calculation.

The trial court recognized him as an expert in “excavating contaminated soil” due to this experience. The trial court sustained several of the City’s objections to Contractor’s engineering expert’s testimony on DOT’S expert’s testing, but allowed him to testify about his efforts to put together a work plan for the site and whether he would have done any additional testing. The trial court noted that Contractor’s engineering expert had already been involved in the project for several years.

The engineering expert testified based on his experience as a contractor in handling construction sites contaminated by arsenic, and the judge rejected the City’s argument that he tried to “expand” his expertise into geology or environmental engineering. The engineering expert didn’t question the accuracy of the testing done, but merely testified that an experienced contractor would need additional information before continuing the project. The judge noted that this expert was involved in putting together a plan to handle the arsenic-contaminated soil on the site and was familiar with the details of the soil at the site.

The appellate court judge concluded that the trial court didn’t err in qualifying either of Contractor’s experts. She noted that Contractor’s accounting expert provided a Second Supplemental Expert Report which calculated the amounts of pre-judgment and post-judgment interest, as well as the post-judgment penalties. It was up to the trial court, the judge held, to determine if those amounts were accurate and to award amounts that were consistent with the appellate opinion.

 

  1. Scott Enterprises, Inc. v. City of Allentown, 102 A.3d 1060 (Pa.Cmwlth. October 21, 2014), Reargument denied December 5, 2014.