Expert Witness Blog
Plaintiff sued defendant claiming that they sold a house with mold and moisture exposure. The defendant hired an Industrial Hygiene & Mold Expert Witness to provide testimony. The plaintiff moved to exclude this testimony, which was granted in part and denied in part by the court.
Facts: This case (Prima Partners LLC v. Waterhouse et al – United States District Court – District of Colorado – May 3rd, 2018) involves the purchase of real property by the plaintiff from the defendant. The plaintiff alleges that the defendant did not disclose a mold problem, a history of water issues and a leak in the roof. They are suing for breach of contract, false representation, fraudulent concealment, attorney’s fees, and damages. The defendant hired Industrial Hygiene & Mold Expert Witness Robert A. Woellner to provide testimony in this case and the plaintiff filed a motion to exclude Mr. Woellner from testifying.
Discussion: Mr. Woellner opined that 1) there were various issues in the residence that are typical and normal for homes like this; 2) there is no evidence that the defendants knew that there was asbestos in the home; 3) there was no evidence that they knew of mold in the home and 4) all of the parties agreed that the roof needed to be replaced.
The plaintiffs allege that the following opinions should be excluded: 1) Mr. Woellner has seen no evidence that the defendants had knowledge of asbestos in the home; 2) that they had knowledge of mold growth in the home; 3) that all parties agreed that the roof needed to be replaced; and 4) that all moisture and mold issues were addressed by the defendants. The plaintiffs allege that Mr. Woellner is opining on the ultimate issues in the case. The defendants reply that Mr. Woellner is not opining on the ultimate issues in the case and that he is qualified to testify on whether it is common for owners to be unaware of mold issues.
The court opines that the following opinions from Mr. Woellner invade the province of the jury: 1) the defendants did not have knowledge of mold in the house; 2) the parties had agreed about the roof; and 3) the defendants promptly dealt with the moisture and mold issues. The court further decided that the jury does not require evidence to exist about a party’s knowledge. Thus, the court ruled, these three pieces of Mr. Woellner’s testimony will be excluded. In addition, the court opined that which issues are normal and typical for a house of similar age, location, and style are within the common knowledge of the juror.
The court also opined that certain opinions of Mr. Woellner are proper. First, he may opine about certain conditions that he saw on the property and whether these indicate limited exposure to moisture. Second he will be able to testify that the presence of a musty odor in the house may be cause by a home being closed for ten months. Last, Mr. Woellner will be allowed to testify that is common for moisture and mold to be unseen and unknown by homeowners.
Conclusion: The motion to exclude the expert witness testimony of Robert A. Woellner is granted in part and denied in part.