part 3
MEMORANDUM AND ORDER
FRANCIS, Magistrate J.
*1 The plaintiff in this case, MacQuesten General Contracting, Inc. ("MacQuesten"), and the defendants, HCE, Inc. and John J. Hildreth (collectively referred to as "HCE"), have each submitted a motion in limine. Although HCE's motion is styled as an application to preclude evidence of damages while MacQuesten's is characterized as a motion to exclude the testimony of HCE's experts, each involves factual disputes and credibility issues properly resolved by the jury. Accordingly, both applications are
denied.
Defendants' Motion
[1][2] HCE argues first that MacQuesten cannot show that it is entitled to damages because there is no evidence that HCE's performance deviated from applicable standards of care in the construction industry. This contention is flawed for at least two reasons. First, to the extent that MacQuesten asserts that HCE violated specific requirements of its subcontract, there is no need for reference to industry standards as might be required in a case of engineering malpractice. Cf. Brushton-Moira Central
School District v. Fred H. Thomas Associates, P.C., 91 N.Y.2d 256, 260-61, 669 N.Y.S.2d 520, 522, 692 N.E.2d 551 (1998) (allegedly defective design gave rise to claims by owner against architect both for breach of contract and for professional malpractice). Second, MacQuesten's witnesses--its general superintendent and an independent professional engineer--appear sufficiently qualified to describe how HCE's work deviated from what is customary in the construction industry even in the absence of
established guidelines. While HCE may well challenge the alleged bias of these witnesses and the factual basis of their opinions, a jury is fully capable of assessing such arguments.
Next, HCE maintains that MacQuesten cannot prove damages to a reasonable degree of certainty. This contention is based largely on the inability of the plaintiff's President, Rella Fogliano, to identify at her deposition the specific components that make up various categories of damages. But a witness' failure, on the spur of the moment, to marshal all of a party's evidence hardly demonstrates that the proof at trial will be speculative. Counsel must be provided the opportunity to tie together the
testimony of the witnesses and the documents before an evaluation of the sufficiency of the evidence can be made.
Finally, HCE argues that MacQuesten should be barred from presenting proof of damages because it belatedly changed its damage theory to include the costs of completion of the project. This contention is unfounded. In the Complaint itself, MacQuesten identifies its damages as including "additional costs of construction and loss of rent." (Complaint, 9). Accordingly, HCE's motion in limine is denied.
Plaintiff's Motion
MacQuesten, in turn, has moved to exclude HCE's expert witnesses pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999), on the ground that their opinions are based on unreliable and incomplete data. These cases, however, teach that the court should be a gatekeeper, preventing the jury from being overwhelmed by unsupportable speculation cloaked as "expertise;"
they do not require the court to censor every expert opinion that may be vulnerable to impeachment. In construing Daubert, the Second Circuit has emphasized the discretion of the trial court:
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