In Independent Enterprises, Inc. v. JD Fields & Co., Inc., No. 1421 WDA 2014 (Pa. Super. 2015), the Superior Court affirmed a trial court verdict in favor of plaintiff, in spite of defendant’s claims that the trial court failed to require plaintiff to prove a defect in its sheet piling and rather allowed lay opinion testimony on the issue.
JD Fields (“Fields”) was contracted by contractor Independent Enterprises (“Independent”) to supply sheet piling to its construction project for the purpose of erecting cofferdams to control water on the site. Sheet piling consists of long, flat sheets of steel that slide together to form a solid wall. These temporary cofferdams are used to keep water out of a work area. Independent claimed that Fields represented to it that the sheet piling product would have adequate free play so that the piles could be fitted into each other. Independent claimed that immediately upon installation of the sheet piling, it experienced a defect I the interlocking mechanism, so that as a result of sufficient free play, the sheets could not be easily fitted together. As a result, Independent suffered delays and additional costs on the job.
At trial, Independent elicited testimony from several of its employees regarding their prior experience working with sheet pilings, the manner in which it had been constructed, and the difficulties that they encountered with the product provided by Fields to this job. Independent never qualified any of its witnesses as experts on sheet piling design or installation.
On appeal, Fields presented as issues for review, inter alia:
- Whether expert testimony on the performance and characteristics of sheet piling and the time required to install it, the knowledge of which requires special skill and training, was necessary to prove a construction delay claim based on an alleged defect?
- Whether the trial court erred in admitting lay opinion testimony about the existence of a “defect” in the sheet piling the amount of time that would normally be required to install it?
On review the Superior Court agreed with the trial court’s reasoning that this case did not involve “professional malpractice . . . or complex products liability [issues] involving complex language or t3echniques necessitating opinion proffered by an expert, nor [did] it . . . involve a design defect. ” Rather, both courts found that this was merely a breach of warranty action which only required a finding of whether the product allowed “for adequate free play” as expressly represented by Fields. Accordingly, expert testimony on “defect” was not necessary but factual testimony by lay witnesses as to the representations made, and whether the product performed in accordance with those representations was sufficient.
Although the court recognized that one of Independent’s witnesses may have strayed into impermissible expert opinion testimony on how the product “was supposed to fit together”, it dismissed that issue, finding that on one occasion, Field’s objection to that testimony was sustained, but that Fields requested no further relief, and that on another occasion, Fields failed to object to the testimony, and therefore waived the issue on appeal.