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D&D Associates, Inc. v. Board of Education of North Plainfield

January 10, 2006


The opinion of the court was delivered by: Hughes, U.S.M.J.


This matter comes before the Court upon Motion by Defendant Robert Epstein, Esquire, ("Defendant") to preclude Plaintiff D & D Associates' ("Plaintiff") expert report prepared by Anthony Vignuolo, Esquire, identifying deficiencies in Mr. Epstein's performance as the Board's attorney, which Plaintiff claims it reasonably relied upon in submitting its bid for construction projects to the Board. Plaintiff submitted opposition to the Motion, contending that Mr. Vignuolo is qualified to submit an opinion as to Mr. Epstein's performance and that the report satisfies the requirements of Fed. R. Civ. P. 26(a)(2)(B) and F.R.E. 702 and should not therefore be precluded under Fed. R. Civ. P. 37(c)(1) (Def's Br. at 9 -12). The Court considered the submissions of the parties and conducted oral argument on December 19, 2005. For the reasons stated below, Defendant's Motion to preclude Plaintiff's expert report is granted.


In 2000, the North Plainfield Board of Education ("Board") began the process of securing contracts for the construction and renovation of three schools in North Plainfield, New Jersey (the "Project"). Mr. Epstein represented the Board on these construction projects. Plaintiff's bid to become the general contractor on three of these contracts was accepted in July 2001.

Once the project began, Mr. Epstein advised Plaintiff in a letter dated October 11, 2001, that it failed to provide the necessary schedules, and such failure adversely affected the advancement of the project. In a subsequent letter dated October 19, 2001, Mr. Epstein notified Plaintiff that because of previously cited failures, Plaintiff was in default of the contract. Mr. Epstein subsequently sent a letter, dated February 25, 2002, to Plaintiff's performance bond surety stating that Plaintiff was in default. After negotiations with Plaintiff, the Board agreed to withdraw these default notices.

Subsequent to this agreement, the Board advised Plaintiff's performance bond surety, that the Board was prepared to pay Plaintiff's requisitions as long as the surety confirmed that the payments would not impair or affect the Board's rights under the contract. In a November 20, 2002 letter response to the Board, Plaintiff denied that it had any responsibility for the Project delays. The parties continued to disagree over the cause of the delays and in a letter dated December 3, 2002, Vitetta Group, the architect on the projects, certified to the Board that Plaintiff was in material breach of its contract due to its failure to provide scheduling information. Again, Mr. Epstein responded on behalf of the Board by writing two letters to Plaintiff and its performance bond surety. The letters advised them of the Board's intention to terminate Plaintiff's employment from the Project and that the Board would pay no further requisitions submitted by Plaintiff for the Project. Negotiations between the parties followed. Ultimately, however, Mr. Epstein advised Plaintiff by letter dated March 4, 2003, that it was terminated from the Project. Mr. Epstein cited Plaintiff's failure to perform the necessary work according to the previously agreed upon schedule.

Throughout the disagreements outlined above, Plaintiff has maintained that the delays were caused by the Board's inability to properly obtain the necessary permits to begin construction. Plaintiff claims that the necessary permits were not issued until October 2001, while the various projects were put out to bid in May 2001. The bid package specified that work would begin "no later than 06/29/01," despite the lack of plan approval. Plaintiff also claims that Mr. Epstein knew of these shortcomings in the bidding and construction start dates and therefore knew that Plaintiff could not meet the necessary deadlines. Plaintiff also claims that it notified Mr. Epstein that based on the Board's inability to obtain the necessary permits it could not begin construction and meet the necessary deadlines. Plaintiff also issued a notice of its intent to seek time extensions and additional costs related to the delays. (Epstein Certif. at Exhibit 4).

Plaintiff sued Mr. Epstein in his individual capacity asserting claims against him for civil rights violations, torituous interference, libel and slander, and malpractice.


The present dispute arises out of Mr. Epstein's claim that Plaintiff's expert report, prepared by Anthony Vignuolo, Esquire, is deficient because Mr. Vignuolo is not qualified to offer an expert opinion in matters related to school construction law and because the report is an impermissible net opinion. Plaintiff argues that the report meets all of the standards under F.R.E. 702 and the disclosure standards of Fed. R. Civ. P. 26. Plaintiff also claims that Mr. Vignuolo is qualified to offer the opinions in the report. Plaintiff further asserts that Defendant should have inquired into Mr. Vignuolo's qualifications at deposition or letter to Plaintiff's counsel as opposed to resorting to the present motion practice.

A. Expert Opinion/Reports - Requirements

Expert opinions are used to aid the trier of fact in better understanding scientific concepts or concepts that require specific expertise. The admission of such expert testimony is governed by Federal Rule of Evidence ("F.R.E.") 702. This rule states that expert opinions are permitted if "(1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness had applied the principles and methods reliably to the facts of the case." Plaintiff, a party who wishes to use such expert opinion must disclose the identity of any person "who may be used at trial to present evidence under Rule[] 702. . .." Fed. R. Civ. P. 26(a)(2)(A). This includes disclosure of an appropriate expert report which includes a "complete statement of all opinions to be expressed and the basis and reason therefor. . . ." Fed. R. Civ. P. 26(a)(2)(B). Finally, Fed. R. Civ. P. 37(c)(1) precludes a party from using an expert opinion if it does not comply with the requirements of Fed. R. Civ. P. 26(a). It states that "[a] party without substantial justification fails to disclose information required by Rule 26(a) . . . , is not, unless such failure is harmless, permitted to use as evidence at a trial, at a hearing, or on a motion any witness or information not so disclosed."

B. Mr. Vignuolo's Qualifications

In order to qualify an expert for trial, the party proffering the expert must demonstrate that the expert has specific knowledge and expertise in the area of law in which he or she wishes to offer the opinion. Mr. Epstein claims that Mr. Vignuolo is not qualified to offer an expert opinion on whether he committed malpractice in his handling of the contract bidding for Defendant's school projects because Mr. Vignuolo does not have any expertise or experience in construction or public bidding laws. Plaintiff counters that Mr. Vignuolo's position as a licensed attorney in the state of New Jersey provides sufficient qualification to offer an expert opinion in a malpractice claim. Plaintiff also argues that Mr. Vignuolo's resume, which ...

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