Negligence – Third-party complaint – Expert evidence

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Where (1) a complaint was brought against the defendant town of Cohasset by a contractor on a dam rehabilitation project and (2) the town has filed a third-party complaint against its engineering firm, the third-party defendant is entitled to summary judgment because the town has not presented expert evidence that it was negligent for the firm to specify that a 30-inch pipe be used in the project’s drainage system and to assure the contractor that a 30-inch pipe was sufficient.

“Plaintiff New England Building & Bridge, Co., Inc. (‘NEBB’) filed this lawsuit against Defendant Town of Cohasset (the ‘Town’) asserting state law claims arising out of work NEBB performed as a contractor on the Town’s dam rehabilitation project. … Shortly after the lawsuit commenced, the Town filed a third-party complaint against CDM Smith, Inc. (‘CDM Smith’), the Town’s engineering firm, seeking contractual indemnification for any liability to NEBB arising out of CDM Smith’s negligence or reckless or intentional misconduct. … CDM Smith has moved for summary judgment as to the third-party complaint. … For the reasons stated below, the Court ALLOWS CDM Smith’s motion for summary judgment. …

“The Town and CDM Smith agree that the language of the Engineering Contract requires CDM Smith to indemnify the Town for liability ‘to the extent of the negligent acts, errors or omissions, reckless or intentional misconduct of [CDM Smith].’ … Both parties further agree that ‘the Town is not asserting reckless or intentional misconduct by CDM Smith.’ … Thus, to obtain indemnification, the Town must show that NEBB’s claims stem from CDM Smith’s ‘negligent acts, error or omissions.’ …

“To establish negligence, the Town must adduce evidence that CDM Smith owed it a duty of care, that it breached its duty and that the breach caused the Town to suffer injury. … CDM Smith asserts that because this is ‘a case involving professional negligence and technical subject matter,’ the Town ‘must produce expert testimony regarding the applicable standard of professional care, a deviation from the standard, and a resulting injury.’ … Where the Town’s theory of the case is that CDM Smith failed to conform to the standard of care of a reasonable engineer, expert testimony may be necessary to establish what the reasonable engineer’s standard of care was and how CDM Smith deviated from that standard. … An exception exists ‘where the malpractice “is so gross or obvious that laymen can rely on their common knowledge to recognize or infer negligence.”’ …

“… In its opposition (and surreply brief), the Town clarifies that CDM Smith was implicated by NEBB’s allegations regarding the inadequacy of the 30-inch siphon pipe. … The Town does not identify any other basis for its indemnification and the Court does not see any suggestion in either NEBB’s complaint or in the Town’s third-party complaint that CDM Smith otherwise negligently contributed to NEBB’s alleged damages in its dispute with the Town. Accordingly, the Court focuses its analysis on whether the Town has adduced sufficient evidence that CDM Smith was negligent in specifying that a 30-inch pipe be used in the Project’s drainage system and assuring NEBB that a 30-inch pipe was sufficient.

“Here, whether a reasonable engineer would have recommended the use of a 30-inch siphon pipe, rather than a wider pipe, in the Project’s drainage system is not a matter to which a lay jury can apply its common sense to recognize or infer negligence. …

“Although the Town asserts that this case boils down to the amount of water allowed to flow out of the work area, the Town offers no evidence from which a lay jury could determine how much water actually needed to flow out of the area or how much water a reasonable engineer would have accounted for. … The fact that the 30-inch siphon pipe ultimately failed does not mean that CDM Smith was necessarily negligent for having recommended it in the first place, if for instance, rainfall at the Project site was much higher than a reasonable engineer could have anticipated at the time. …

“The Town has not offered a theory of CDM Smith’s liability based on mistakes ‘so gross or obvious’ that a lay jury could apply common sense and recognize negligence. … Thus, the general rule that expert testimony is required to establish the professional standard of care and any breach in that standard of care applies to this case. …

“The Town argues that even if expert testimony is required, sufficient expert evidence has been offered by Plaintiff NEBB. … First, the Town points to NEBB’s disclosure of engineering expert Gregory Berube of PARE Corporation. The Town argues that ‘Mr. Berube will testify that PARE designed the coffer dam and water diversion system per the Project’s plans and specifications, and that NEBB properly installed the coffer dam and water diversion system. Mr. Berube will further testify that the design was insufficient for the actual Project conditions, including but not limited to the amount of water required to be diverted from the Project. Mr. Berube will further testify that NEBB encountered differing side conditions [sic] than those specified in the Bid and Design Documents.’ … Berube’s expected testimony does not address the standard of care for a reasonable engineer and whether CDM Smith met that standard. The closest Berube appears to come to testifying that CDM Smith’s contribution to the Project was insufficient was the testimony that ‘NEBB encountered differing site conditions than those specified in the Bid and Design Documents.’ Id. As explained above, the fact that CDM Smith’s specifications did not match actual field conditions does not establish negligence. …

“Second, the Town points to CDM Smith’s own expert, Derek Etkin, who ‘is expected to disagree (with the disclosed-anticipated, expert testimony of Mr. Gregory Berube of Pare) ‘that Pare designed the coffer dam and water diversion system per the Project’s plans and specifications, and that the design was insufficient for the actual Project conditions[.]’‘ … For the same reasons discussed above as to Berube’s opinion, anticipated testimony as to the insufficiency of PARE’s design does not meet the Town’s burden of establishing CDM Smith’s negligence. Etkin’s expert disclosure is perhaps more detailed than Berube’s and indicates his anticipated testimony will include ‘factual and expert testimony concerning the engineering-design work conducted, and associated hydraulic calculations performed, by himself and CDM [Smith].’ … Even so, the proffer regarding Etkin’s testimony does not offer any anticipated testimony that CDM Smith failed to meet industry standards and caused the damage alleged. Thus, Etkin’s testimony is similarly insufficient to establish the relevant standard of care and a breach of that standard that caused NEBB’s damages. …

“Accordingly, the Court concludes that the Town has failed to adduce evidence showing that ‘a trier of fact could reasonably resolve that issue in [its] favor’ as to the Town’s third-party claim against CDM Smith. …”

New England Building & Bridge Co., Inc. v. Town of Cohasset v. CDM Smith, Inc. (Lawyers Weekly No. 02-261-24) (13 pages) (Casper, J.) (Civil Action No. 21-cv-11567-DJC) (May 21, 2024).

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