Cross Creek Multifamily, LLC v. ICI Constr., Inc., CIVIL ACTION NO. 2:18-cv-83-KS-MTP

506 F.Supp.3d 407

CROSS CREEK MULTIFAMILY, LLC, Plaintiff

v.ICI CONSTRUCTION, INC., Hartford Fire Insurance Company, and Pucciano & Associates, P.C., Defendants

ICI Construction, Inc., Third-Party Plaintiff

v.All American Builders, Inc.; Burris Contracting, LLC; Perren Masonry, LLC ; Warner Construction Co. of MS, LLC and Kimbel Mechanical Systems, Inc., Third-Party Defendants

CIVIL ACTION NO. 2:18-cv-83-KS-MTP

United States District Court, S.D. Mississippi, Eastern Division.

Signed December 9, 2020

Andrew A. Hatten, William Arthur Whitehead, Jr., Bryan Nelson, PA, Hattiesburg, MS, for Plaintiff.

Brian A. Hinton, Robert Davis House, Thomas M. Wright, Jr., Anderson, Crawley & Burke, PLLC, Ridgeland, MS, for Third-Party Defendant Warner Construction Co. of MS, LLC.

Francois David Choudoir, Smith & Choudoir, PLLC, McComb, MS, for Third-Party Defendant All American Builders, Inc.

Clark Hicks, Robert Lane Dossett, Hicks Law Firm, PLLC, Hattiesburg, MS, for Third-Party Defendant Burris Contracting, LLC.

Clyde X. Copeland, III, Frank Russell Brabec, Matthew W. Vanderloo, Morgan M. Keup, Jernigan Copeland, PLLC, Madison, MS, for Third-Party Defendant Perren Masonry, LLC.

W. Edward Hatten, Jr., Shannon Ladner Ozerden, Dukes, Dukes, Keating & Faneca, PA, Gulfport, MS, Andrew Tarvin, Pro Hac Vice, Mark W. Dossett, Pro Hac Vice, Kutak Rock, LLP, Fayetteville, AR, for Third-Party Defendant Kimbel Mechanical Systems, Inc.

John M. Madison, III, Kracht Madison Huddleston, LLP, Baton Rouge, LA, Lauren Elizabeth Scroggs, Pro Hac Vice, Timothy Christian Ross, Pro Hac Vice, Andrews Myers, PC, Houston, TX, for Defendant/Third-Party Plaintiff ICI Construction, Inc.

John M. Madison, III, Kracht Madison Huddleston, LLP, Baton Rouge, LA, Lauren Elizabeth Scroggs, Pro Hac Vice, Timothy Christian Ross, Pro Hac Vice, Andrews Myers, PC, Houston, TX, for Defendant Hartford Fire Insurance Company.

David B. Ellis, Victoria McCaa Anderson, Mockbee, Hall & Drake, PA, Jackson, MS, for Defendant Pucciano & Associates, P.C.

MEMORANDUM OPINION AND ORDER

KEITH STARRETT, UNITED STATES DISTRICT JUDGE

This cause came before the Court on Perren Masonry, LLC's Motion to Exclude Expert Testimony of Kelli Murbach [379].¹ The motion is fully briefed and ripe for ruling. Having reviewed the parties’ submissions, the record in this matter, and the relevant legal authorities, and otherwise being duly advised in the premises, the Court finds that the motion is not well taken and will be denied.

I. BACKGROUND

This lawsuit involves the construction of an apartment complex owned by Cross Creek Multifamily, LLC known as "Cross Creek Village" located in Hattiesburg, Mississippi (the "Project"), in which the Defendant, ICI Construction, Inc. ("ICI") served as the general contractor and Pucciano & Associates, P.C. ("Pucciano") served as the architect. Cross Creek brought this action, alleging various construction and design defects and naming ICI and Pucciano as Defendants. ICI later brought third-party claims against several of the subcontractors on the Project, one of which is Perren Masonry, LLC ("Perren"), who was the masonry subcontractor for the Project.

Cross Creek and Pucciano both designated Kelli Murbach ("Murbach") of Browder & LeGuizamon and Associates, Inc. to testify as an expert in this matter. [379-1]; [379-2]. Murbach was designated as an expert on the subject matter of "structural engineering," having served as the structural engineer for the project, according to the parties’ disclosures. Id. Murbach conducted periodic inspections during the course of construction and conducted a site inspection on November 9, 2017, which culminated in a report dated November 17, 2017 signed by both Murbach and Sergio LeGuizamon, P.E., a licensed engineer in the State of Mississippi.²

In her deposition, Murbach testified that she holds a bachelor's degree in civil engineering from Case Western Reserve University [379-3] at p. 9. She has worked for multiple civil engineering firms specializing in bridge construction, and eventually went to work for Browder & LeGuizamon, specializing in wood construction, where she worked for eighteen (18) years. Id. at pp. 9-10. During her tenure at Browder & LeGuizamon she worked exclusively on designing structural engineering components of wood frame construction projects for approximately 250 multi-family apartment complexes, like the Cross Creek project. Id. at pp. 10, 15. However, Murbach is not a licensed engineer in Mississippi or in any state, and she did not obtain a limited license to provide testimony in this matter. Id. at p. 14. In her deposition, as well as in the November 17, 2017 report, Murbach addressed various observations, opinions, conclusions and recommendations related to the construction defects at Cross Creek Apartments.

Perren Masonry now moves to exclude the testimony of Murbach solely on the grounds that she is not competent to testify on the subject of structural engineering pursuant to Federal Rule of Evidence 601 and Mississippi Code Annotated § 73-13-3.

II. DISCUSSION

While the admissibility of expert testimony is governed by Federal Rule of Evidence 702, Perren Masonry does not posit that Murbach fails to meet either the rigors of Rule 702 or an analysis under the standards set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Again, the sole issue here is competency as addressed in Rule 601,³ which provides: "Every person is competent to be a witness unless these rules provide otherwise. But in a civil case, state law governs the witness's competency regarding a claim or defense for which state law supplies the rule of decision."

Perren Masonry contends that the state law governing the licensure of engineers provides the state law governing competency, specifically, Miss. Code Ann. § 73-13-1 et seq. , or "The Mississippi Engineering Practices Act" ("MEPA"). Section 73-13-3 provides that the term "engineer" shall mean a "professional engineer," which is defined therein as "a person who has met the qualifications as required under Section 73-13-23(1) and who has been issued a certificate of registration as a professional engineer." Miss. Code Ann. § 73-13-3. The term "practice of engineering" includes "expert technical testimony." Id. In other words, one must be licensed to practice engineering; therefore, one must be licensed to provide expert technical testimony. In addition, the Rules and Regulations of the Mississippi Board of Licensure for Professional Engineers and Surveyors ("Rules and Regulations") contain a Chapter 4 that addresses "Comity Licensure," which provides engineers licensed in another state must obtain limited licensure in Mississippi to provide expert testimony in the field of engineering.

Based on Perren Masonry's arguments, the legal question to be answered is: does the fact that Murbach is not a licensed professional engineer or have a limited license to testify deem her incompetent to testify in this matter? The Court finds that the answer is no.

We start with the language of Rule 601 : "state law governs the witness's competency regarding a claim or defense for which state law supplies the rule of decision." Because this is a diversity action, state law will supply the rule of decision on the claims in this case. As such, we turn to the issue of whether state law, in this case MEPA, deems Murbach incompetent to testify. The Court finds that it does not for the simple reason that MEPA does not contain any provisions addressing a witness's competency to testify, and as such, is not a "competency statute."

Again, Rule 601 provides that that in cases where state law supplies the rule of decision, state law governing the competency of witnesses applies—not just any state law applies, but that which governs the competency of witnesses. Perren Masonry relies on MEPA to supply that law, but the fundamental question is whether MEPA even governs the competency of witnesses. This Court finds that it does not first because Mississippi law regarding competency to testify in general provides that "all witnesses are deemed competent" except for two exceptions that are not applicable here. See Miss. R. Evid. 601(a).⁴

Second, while one might be required to be licensed to provide expert technical testimony, nowhere in MEPA does it suggest that to not be licensed renders one incompetent to testify.⁵ Rather, MEPA itself states only that "it shall be unlawful" for a person to practice engineering, i.e. , provide expert testimony, in Mississippi "unless such person has been duly licensed." Miss. Code. Ann. § 73-13-1. Moreover, the stated purpose of MEPA has nothing to do with witness competency; the requirement that engineers be licensed is "to safeguard life, health, and property, and to promote the public welfare." Id. Given this purpose for licensure, the fact that criminal⁶ penalties may ensue for failing to comply with MEPA has nothing to do with whether an expert is competent to testify. Cf. Tellus Operating Group, LLC v. Tex. Petroleum Inv. Co. , 105 So. 3d 274, 278 (Miss. 2012) (holding on an issue of first impression that the criminalization of expert testimony without a license has no bearing on whether an expert is qualified under Mississippi's Rule 702 that governs admissibility of expert testimony);⁷ see also Biloxi Yacht Club v. Grand Casinos of Miss., Inc.—Biloxi , No. 1:07-cv-888, 2009 WL 10676951 (S.D. Miss. Feb. 23, 2009) (noting that when anticipated expert testimony constitutes the unlicensed practice of engineering, then that is between the expert and the Mississippi Board of Engineering).

As the Fifth Circuit has noted, the Federal Rules of Evidence do not define "competency," but commentators have stated that "[c]ompetency under Rule 601 may be defined as the presence of those characteristics that qualify and the absence of those disabilities that disqualify a person from testifying." Coleman v. United States , 912 F.3d 824, 831 (...