291 A.3d 987
R.I.2023Background
- In April–July 2012 Donnelly Real Estate purchased commercial property from John Crane and simultaneously leased a portion back to John Crane so Crane could occupy ~20% while renovations occurred; closing was July 19, 2012.
- After closing plaintiff received project manuals/plans indicating vinyl asbestos tiles (VAT) and alleges Crane delayed vacating the remainder of the building, delaying renovations and discovery/abatement of asbestos.
- Donnelly sued John Crane (and another defendant later dismissed) alleging fraud/intentional misrepresentation, negligent misrepresentation, breach of contract, breach of implied covenant of good faith and fair dealing (Counts I–IV), and breach of lease (Count V).
- The parties stipulated to an expert-disclosure deadline; the Superior Court later permitted Donnelly to call only its general contractor expert (Vigliotti) and barred Silva (an industrial hygienist) and EMSL; Donnelly paid $2,500 in sanctions.
- John Crane moved to strike proffered expert opinions and for summary judgment, arguing Donnelly had no admissible expert to prove asbestos presence/remediation; the hearing justice struck the disputed expert evidence, found Vigliotti unqualified on asbestos issues, and granted summary judgment on all counts.
- On appeal the Rhode Island Supreme Court affirmed the rulings to strike the experts, affirmed summary judgment as to Counts I–IV by an equally divided court, but vacated summary judgment as to Count V and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court erred in striking portions of Vigliotti’s expert disclosure (and whether a Rule 104/DiPetrillo hearing was required) | Donnelly: trial court should have held a DiPetrillo/R.104 hearing before precluding Vigliotti from testifying about asbestos | John Crane: Vigliotti lacks asbestos expertise; disclosure properly limited/stricken | Affirmed — trial justice did not abuse discretion; deposition showed Vigliotti lacked requisite asbestos expertise so no R.104 hearing was required |
| Whether Silva’s affidavit was properly stricken as expert testimony despite Donnelly’s contention Silva was a percipient/fact witness | Donnelly: Silva was a percipient witness with personal knowledge who could testify as a fact witness with specialized knowledge | John Crane: Silva’s affidavit contained scientific/technical opinions barred by the court’s prior order | Affirmed — Silva’s affidavit presented expert opinion and was barred under the prior order; striking was within the court’s discretion |
| Whether summary judgment for John Crane on Counts I–IV was proper given exclusion of expert proof | Donnelly: exclusion of expert evidence was erroneous and deprived it of proof on misrepresentation/contract claims | John Crane: without admissible expert proof Donnelly cannot prove asbestos-related elements of these claims | Affirmed (by an equally divided court) — judgment for John Crane as to Counts I–IV stands |
| Whether summary judgment on Count V (breach of lease) was proper where expert evidence was excluded | Donnelly: breach-of-lease claim concerns Crane’s failure to vacate and resulting delay/costs — within lay understanding, no expert required | John Crane: claim implicates asbestos delay and thus requires expert proof; Donnelly also waived arguments | Reversed/vacated as to Count V — trial court erred; breach and non-asbestos delay damages are within common knowledge and genuine factual issues remain, so summary judgment was improper |
Key Cases Cited
- DiPetrillo v. Dow Chemical Co., 729 A.2d 677 (R.I. 1999) (trial justice may, in discretion, hold an early Rule 104 hearing to gatekeep complex scientific expert testimony)
- Roe v. Gelineau, 794 A.2d 476 (R.I. 2002) (an evidentiary DiPetrillo hearing is discretionary and not always required)
- Jessup & Conroy, P.C. v. Seguin, 46 A.3d 835 (R.I. 2012) (expert testimony required only for matters beyond common knowledge)
- Chapdelaine v. State, 32 A.3d 937 (R.I. 2011) (no expert necessary when a jury can comprehend facts as described by non-experts)
- Barenbaum v. Richardson, 328 A.2d 731 (R.I. 1974) (jury competent to draw conclusions from ordinary contractual/factual disputes)
- Borgo v. Narragansett Elec. Co., 275 A.3d 567 (R.I. 2022) (standard of review for summary judgment: de novo review of admissible evidence in light most favorable to nonmoving party)
- Salvatore v. Palangio, 247 A.3d 1250 (R.I. 2021) (abuse-of-discretion standard applies to review of a motion to strike)