Friendship Heights Associates v. Vlastimil Koubek, A.I.A.

• Decision Date: 27 February 1986
• Docket Number: Nos. 83-2204,s. 83-2204
• Citation: 785 F.2d 1154
• Parties: 19 Fed. R. Evid. Serv. 1611 FRIENDSHIP HEIGHTS ASSOCIATES, an Illinois Joint Venture, c/o First Condominium Development Co., Appellants, v. VLASTIMIL KOUBEK, A.I.A., Tnemec Company, Inc., A Missouri Corporation, Appellees. FRIENDSHIP HEIGHTS ASSOCIATES, an Illinois Joint Venture, c/o First Condominium Development Co., Plaintiff, v. VLASTIMIL KOUBEK, A.I.A., Appellant, and Melrose Waterproofing Company, a Pennsylvania Corporation; Ronald D. Mayhew, Inc., A Virginia Corporation; United Pacific Insurance Company, Defendants, and Tnemec Company, Inc., A Missouri Corporation, Appellee. (L), 83-2205.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1154

785 F.2d 1154

19 Fed. R. Evid. Serv. 1611

FRIENDSHIP HEIGHTS ASSOCIATES, an Illinois Joint Venture, c/o First Condominium Development Co., Appellants, v. VLASTIMIL KOUBEK, A.I.A., Tnemec Company, Inc., A Missouri

Corporation, Appellees.

FRIENDSHIP HEIGHTS ASSOCIATES, an Illinois Joint Venture, c/o First Condominium Development Co., Plaintiff, v. VLASTIMIL KOUBEK, A.I.A., Appellant, and Melrose Waterproofing Company, a Pennsylvania Corporation;

Ronald D. Mayhew, Inc., A Virginia Corporation;

United Pacific Insurance Company, Defendants,

and

Tnemec Company, Inc., A Missouri Corporation, Appellee.

Nos. 83-2204(L), 83-2205.

United States Court of Appeals, Fourth Circuit.

Argued May 6, 1985.

Decided Feb. 27, 1986.

Linda Richards (Shale D. Stiller, Frank, Bernstein, Conaway & Goldman, on brief), for Friendship Heights.

Jonathan B. Clairborne, Danny B. O'Connor (Howard G. Goldberg, Smith, Somerville & Case, George D. Solter, Whiteford, Taylor, Preston, Trimble & Johnson, on brief), for Koubek and Tnemec Co.

Before MURNAGHAN, ERVIN and SNEEDEN, Circuit Judges.

SNEEDEN, Circuit Judge:

After purchasing an apartment building in Chevy Chase, Maryland, Friendship Heights Associates undertook an extensive renovation program which included the repainting of the building's exterior concrete surface. Unfortunately, soon after the building was painted, the paint began to peel. Friendship Heights then brought this diversity suit, based on tort and contract principles, against Vlastimil Koubek, A.I.A., the architect who drafted the specifications for the repainting; Melrose Waterproofing Company, the general contractor for the exterior repair of the building; Ronald D. Mayhew, the subcontractor who painted the building, Tnemec Company, Inc., the manufacturer of the paint specified by Koubek; and United Pacific Insurance Company, the insurer that furnished the bond for the painter and the contractor.

A four-day bench trial resulted in a judgment favoring all of the defendants, 573 F.Supp. 100 (D.Md.1983). The plaintiff appeals from the judgment as it pertains to defendants Koubek and Tnemec. Koubek appeals the district court's dismissal of its cross-claim against Tnemec.

Friendship Heights argues that the district court erred in refusing to qualify two of its witnesses as experts. The trial court ruled that Dr. Stella L. Marusin, a chemical and ceramic engineer, could not give her opinion as to the cause of the peeling paint. The court indicated that Dr. Marusin lacked practical experience in coatings over concrete. Joint Appendix at 101-102 and 168-169. The district court also refused to allow William Edward White, an architect and structural engineer, to testify as to whether Koubek, if it had performed with reasonable care, would have specified a different surface preparation method. The court apparently did not qualify Mr. White as an expert because he failed to provide a sufficiently precise definition of the architectural standard of care. Joint Appendix at 123-126, 153, 156.

Friendship Heights argues that the district court's refusal to qualify these two witnesses as experts was extremely detrimental to its case. In support of this contention, it points to the district court's findings that, while Friendship Heights had an arguable claim against Koubek, it had failed to show "why the paint peeled or that the architect would have been able to prevent it if he performed properly." Joint Appendix at 54. We find the district court abused its discretion in refusing to qualify Dr. Marusin and Mr. White as experts. Accordingly, we reverse the judgment of the district court as it relates to Koubek and remand for a new trial. We affirm the court's decision regarding the plaintiff's claim against Tnemec and Koubek's cross-claim against Tnemec.

I.

In preparation for converting the building's apartments into condominiums, Friendship Heights decided to substantially renovate the complex called "The Willoughby." Repainting the building's concrete exterior was a major aspect of the renovation. According to testimony at trial, The Willoughby was sorely in need of repainting. Only ten percent of the old paint remained intact. Forty to fifty percent of the paint was peeling, and the remainder had turned to chalk. Joint Appendix at 80. Friendship Heights hired Koubek, who had designed and supervised the original construction of The Willoughby, to prepare a set of specifications for repainting the building. Charles M. Stover, an employee of Koubek's firm, prepared the specifications. His specifications called for wire brushing the concrete exterior and for blowing off the surface with high pressure air to dislodge dust and debris. Joint Appendix at 514. Mayhew, the painting subcontractor, prepared the surface according to these specifications. By the time the project was finished, however, the new paint had begun to peel wherever old paint had not been removed. Joint Appendix at 457.

Friendship Heights contended at trial that the specifications were inadequate because they did not require sandblasting or waterblasting the exterior to remove all existing paint. It maintained that, if Stover had complied with a professional standard of reasonable care, he would have recommended a method of surface preparation other than wirebrushing. Friendship Heights elicited testimony that Stover did not visit The Willoughby at the time he prepared the specifications, Joint Appendix at 331; that he made no attempt to determine why the old paint was peeling, Joint Appendix at 332; that he did not find out how many times the building had been painted, Joint Appendix at 332; that he ordered no testing on the existing paint or concrete, Joint Appendix at 331; and that he did not order any test samples to be placed on The Willoughby, Joint Appendix at 329.

Stover, on the other hand, maintained that he complied with the professional standard of care required of him. He testified that he visited the building approximately one month before preparing the specifications, although the purpose of the visit was to obtain information for the preparation of a report filed in connection with the condominium conversion. Joint Appendix at 294. Stover testified that he determined that "Tneme-crete" was the paint originally applied to the building. Joint Appendix at 291. Having made that determination, he stated that he then consulted the literature which Tnemec published regarding Tneme-crete and its proper application. ¹ Joint Appendix at 295. Stover further testified that he consulted the area representative for Tnemec, Charles Ditsler, regarding the proper method of surface preparation and that Ditsler had told him that wirebrushing would be satisfactory. ²

As indicated earlier, the district court found that Friendship Heights had a "colorable claim of breach of duty" against Koubek's firm. ³ Joint Appendix at 58. The court, however, subsequently concluded that the plaintiff failed to carry its burden of showing that the damages would not have occurred if Stover had performed according to the required standard of care. Finding for the defendant Koubek, the court stated the following:

The testimony was unchallenged that the new paint adhered to the concrete wherever the first coat of paint had been removed, and all the chips of the newer paint showed that the second coat of paint had adhered to the first coat of paint. The inescapable conclusion is that something about the second coat of paint caused the remainder of the first coat of paint to peel off the building. The plaintiff failed to show why this occurred. And, more importantly, the plaintiff did not show that if Stover had performed the steps which it says should have been performed, the cause of the paint-peeling would have been discovered and a different method of surface preparation would have been recommended. As mentioned above, an architect does not, by agreeing simply to perform work for a client, guarantee the ultimate results, only that he or she will perform with the requisite degree of care and skill.

Joint Appendix at 59.

II.

We turn now to the rulings of the district court concerning the two witnesses which Friendship Heights offered as experts. Dr. Stella Marusin was proffered by the plaintiff as an expert witness who could testify about the cause of the paint delamination. The district court, however, refused to qualify Dr. Marusin as an expert capable of rendering an opinion as to why the paint peeled. Finding that Dr. Marusin lacked practical experience in the properties of coatings over concrete, the court ruled as follows:

I am going to allow you to testify, doctor, but not as an expert in the field in which you are here today. Let me say to you that this is by no means any demeaning approach to your qualifications. You are undoubtedly extremely well trained and you are perhaps as knowledgeable as anybody in the United States in the field of which you have. The problem I have is to attempt to relate your qualifications and experience to those who would normally or regularly be accepted as experts in this court or in any court probably in this country. So, I have some problems with that as it relates to your experience with coatings.

Joint Appendix at 101-102. The district court then allowed Dr. Marusin to testify, but only as to the factual findings she made during the course of her investigation of the peeling paint. Joint Appendix at 168-169. The record reveals that Dr. Marusin is a chemical and ceramic engineer, holding master's degrees in chemical and ceramic engineering and a doctorate in silicate sciences. Joint Appendix at 587. She is a member of the American Ceramic Society, the National Institute of Ceramic Engineering, and the American Concrete Institute, including its committee on coatings. A native of Czechoslovakia, Dr. Marusin headed a laboratory in Prague which performed tests to determine the physical, mechanical, and chemical properties of building...