MTD Products Incorporated v. Kowalski Construction Incorporated

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 MTD Products Incorporated, et al., No. CV-20-00843-PHX-JJT 10 Plaintiffs, ORDER 11 v. 12 Kowalski Construction Incorporated, et al., 13 Defendants. [14] 15 Plaintiffs MTD Products, Inc. (“MTD”) and Smurfit Kappa North America, LLC 16 (“Smurfit Kappa”) (collectively “Plaintiffs”) have alleged claims for breach of contract and 17 negligence against Defendants Kowalski Construction, Inc. (“Kowalski”) (a general 18 contractor) and Arizona Shoring & Bracing, LLC (“Arizona Shoring”) (a subcontractor) 19 (collectively “Defendants”). At issue are five motions: three Motions to Exclude and two 20 Cross Motions for Summary Judgment. The Motions to Exclude are Plaintiffs’ Motion to 21 Exclude Mr. Thomas J. Kulaga, P.E. as an Expert (Doc. 82)¸to which Defendant Kowalski 22 responded and Plaintiffs replied (Docs. 94, 96, respectively); Defendant Kowalski’s 23 Motion to Exclude Mr. Douglas Ward as an Expert (Doc. 86), to which Plaintiffs responded 24 and Kowalski replied (Docs. 88, 95, respectively); and Defendant Kowalski’s Motion to 25 Exclude Mr. David Komm, P.E. as an Expert (Doc. 87), to which Plaintiffs responded and 26 Kowalski replied (Docs. 92, 98, respectively). The Motions for Summary Judgment are 27 Plaintiffs’ Motion for Partial Summary Judgment (Doc. 80), to which Defendant Kowalski 28 and Defendant Arizona Shoring responded and Plaintiffs replied (Docs. 102, 104, 107, 1 respectively); and Defendant Kowalski’s Motion for Summary Judgment (Doc. 84), to 2 which Plaintiffs responded and Defendant Kowalski replied (Docs. 99, 110, respectively). 3 The Court finds these matters appropriate for resolution without oral argument. See LRCiv 4 7.2(f). 5 I. BACKGROUND 6 MTD owned a warehouse facility in Chandler, Arizona. (Doc. 99 at 3.) Smurfit 7 Kappa leased the facility from MTD for purposes of producing, storing, and processing 8 paper products. (Doc. 99 at 3.) On August 18, 2017, an employee of Smurfit Kappa drove 9 a forklift into a pre-cast concrete column which supported the roof structure. (Doc. 84 at 2.) 10 When the employee hit the column, it caused the roof structure to fall and damaged the fire 11 sprinkler system. (Doc. 84 at 2.) Shortly thereafter, Kowalski performed an emergency 12 repair on the property at Plaintiffs’ request. (Doc. 84 at 3.) 13 Later, in December 2017, MTD hired Kowalski as the general contractor to perform 14 permanent structural repairs to the pre-cast concrete column damaged during the initial 15 incident. (Doc. 99 at 3.) Plaintiffs contend and Defendants dispute that repair to the fire 16 sprinkler system was also within the scope of work contemplated in the contract. (Docs. 84 17 at 4; 99 at 3.) Kowalski hired Arizona Shoring to conduct the shoring work for the project, 18 including shoring for the fire sprinkler line. (Doc. 99 at 3.) Defendants assert and Plaintiffs 19 deny that Kowalski presented a proposal (the “Metro Fire Proposal”) to Plaintiffs’ 20 consultant Mr. Jeff Nicholson to cap off the affected sprinkler line before the 21 commencement of the structural repairs. Defendants contend Mr. Nicholson did not 22 approve the proposal due to the cost. (Doc. 84 at 12.) Defendants further assert 23 Mr. Nicholson’s rejection meant Kowalski had to maintain operation of the current fire 24 sprinkler system, which was supposed to be a temporary repair, while performing the 25 permanent structural repairs. (Doc. 84 at 12.) As a result, Kowalski had to drain the fire 26 sprinkler system at the start of the workday and recharge the system at the end of each 27 workday. (Doc. 84 at 12.) [28] 1 On March 26, 2018, while Arizona Shoring workers were raising the roof structure, 2 Plaintiffs allege Defendants noticed the fire sprinkler system was restricting movement. 3 (Doc. 99 at 6.) To address the issue, Plaintiffs allege Kowalski and/or Arizona Shoring 4 made the decision to cut the fire sprinkler line supports so that they could continue to raise 5 the roof structure. (Doc. 99 at 6.) After cutting the supports, Plaintiffs allege the sprinkler 6 system was left charged and under pressure. (Doc. 99 at 6.) On or around March 30, 2018, 7 the fire sprinkler line, while charged, separated at the temporary repair site damaging the 8 building and Smurfit Kappa’s inventory. (Doc. 99 at 6.) Plaintiffs commenced the present 9 action due to the damages they suffered by the event. 10 II. MOTIONS TO EXCLUDE 11 Both parties have filed Motions to Exclude expert testimony. The Court addresses 12 each below. 13 A. Legal Standard 14 Under Rule 702, an expert may testify on the basis of “scientific, technical, or other 15 specialized knowledge” if it “will assist the trier of fact to understand the evidence,” 16 provided the testimony rests on “sufficient facts or data” and “reliable principles and 17 methods,” and “the witness has reliably applied the principles and methods to the facts of 18 the case.” Fed. R. Evid. 702(a)-(d). The trial judge acts as the “gatekeeper” of expert 19 witness testimony by engaging in a two-part analysis. Daubert v. Merrell Dow Pharms., 20 Inc., 509 U.S. 579, 589, 592 (1993). First, the trial judge must determine that the proposed 21 expert witness testimony is based on scientific, technical, or other specialized knowledge. 22 Id.; Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999). Scientific evidence is 23 reliable “if the principles and methodology used by an expert are grounded in the methods 24 of science.” Clausen v. M/V New Carissa, 339 F.3d 1049, 1056 (9th Cir. 2003). Second, 25 the trial court must ensure that the proposed testimony is relevant—that it “will assist the 26 trier of fact to understand or determine a fact in issue.” Id. “Evidence is relevant if it has 27 any tendency to make a fact more or less probable than it would be without the evidence 28 and the fact is of consequence in determining the action.” Fed. R. Evid. 401. 1 “The inquiry envisioned by Rule 702” is “a flexible one.” Daubert, 509 U.S. at 594 . 2 “The focus . . . must be solely on principles and methodology, not on the conclusions that 3 they generate.” Id.; See also Wendell v. GlaxoSmithKline, 858 F.3d 1227, 1232 (9th Cir. 4 2017). The advisory committee notes on the 2000 amendments to Rule 702 explain that 5 Rule 702 (as amended in response to Daubert) “is not intended to provide an excuse for an 6 automatic challenge to the testimony of every expert.” See Kumho Tire, 526 U.S. at 152 . 7 “Disputes as to the strength of [an expert’s] credentials, faults in his use of [a particular] 8 methodology, or lack of textual authority for his opinion, go to the weight, not the 9 admissibility, of his testimony.” Kennedy v. Collagen Corp., 161 F.3d 1226, 1231 (9th Cir. 10 1998) (internal citations omitted). “Vigorous cross-examination, presentation of contrary 11 evidence, and careful instruction on the burden of proof are the traditional and appropriate 12 means of attacking shaky but admissible evidence.” Daubert, 509 U.S. at 595 (citation 13 omitted). 14 B. Analysis 15 There are three Motions to Exclude before the Court: one from the Plaintiffs and 16 two from Defendant Kowalski. The Court begins its analysis with Plaintiffs’ Motion. 17 1. Plaintiffs’ Motion to Exclude Mr. Kulaga 18 Plaintiffs argue portions of Mr. Kulaga’s testimony go beyond the scope of his 19 expertise and that those portions should be excluded. (Doc. 82 at 4.) Plaintiffs do not dispute 20 Mr. Kulaga is an expert in mechanical engineering but argue he is unqualified to opine on 21 general contracting. (Doc. 82 at 4.) To support their argument, Plaintiffs cite Mr. Kulaga’s 22 employment history. Mr. Kulaga has not worked as a general contractor, is not licensed as a 23 general contractor, and has no formal training or education in general contracting. (Doc. 96 24 at 2.) Additionally, in his deposition, Mr. Kulaga testified he did not have an opinion on the 25 standard of care for general contractors and subcontractors in this case. (Doc. 96 at 8.) 26 Accordingly, Plaintiffs argue any non-mechanical engineering opinions offered by 27 Mr. Kulaga are beyond the scope of his expertise and, as such, should be excluded. (Doc. 82 28 at 10.) 1 In response Kowalski contends Mr. Kulaga’s non-mechanical engineering opinions 2 should not be excluded because he is qualified to opine on the subject based on his 3 experience. (Doc. 94 at 5.) According to Kowalski, “Mr. Kulaga’s experience regarding 4 general contracting includes commercial and insurance work wherein he was retained by the 5 general contractor or insurance company to opine on the quality of work, whether it was 6 proper or not, [and] whether they followed instructions or design.” (Doc. 94 at 5-6) (internal 7 citations omitted). Further, “while working as the director of engineering at a company, he 8 would work with general contractors to develop plans to define the scope of work, cost, and 9 requirements for the project.” (Doc. 94 at 6.) As a part of this work, “Mr. Kulaga would meet 10 with contractors, do site walks, exchange emails, and [make] phone calls to develop the 11 scope prior to putting on paper.” (Doc. 94 at 6.) Kowalski contends these experiences qualify 12 Mr. Kulaga as an expert in general contracting. 13 Though it is true a witness can qualify as an expert through practical experience in a 14 particular field, Mr. Kulaga’s experience working alongside a general contractor does not 15 qualify him as an expert in general contracting. See Rogers v. Raymark Indus., Inc., 922 F.2d 16 1426, 1429 (9th Cir. 1991) (“A witness can qualify as an expert through practical experience 17 in a particular field, not just through academic training.”) As Plaintiffs aptly explain, a lawyer 18 who routinely works with a doctor in evaluating clients’ medical conditions is not qualified 19 to opine on medical issues. Similarly, Mr. Kulaga does not have the requisite education or 20 experience to qualify as an expert in general construction. His work alongside general 21 contractors, regardless of how extensive, does not imbue expertise in general construction 22 upon him. Accordingly, Mr. Kulaga’s testimony will be limited to mechanical engineering, 23 and opinions related to general construction will be excluded. 24 2. Defendant Kowalski’s Motion to Exclude Mr. Ward 25 Similar to Plaintiffs’ Motion, Defendant Kowalski argues portions of Mr. Ward’s 26 testimony go beyond the scope of his expertise and that those portions should be excluded. 27 (Doc. 86 at 3.) Kowalski asserts Mr. Ward’s testimony regarding the cause of the sprinkler 28 line failure should be precluded because he does not have an engineering background. 1 (Doc. 86 at 3.) By contrast, Plaintiffs contend Mr. Ward is qualified to discuss the 2 circumstances surrounding the sprinkler line failure “from a contractor’s perspective.” 3 (Doc. 88 at 5.) To support their assertion, Plaintiffs cite Mr. Ward’s fifty years of experience 4 as a general contractor in the construction field. Like Mr. Kulaga, Mr. Ward is certainly an 5 expert in his respective field but his fifty years’ experience in general construction does not 6 qualify him to testify as to why the sprinkler line failed. Accordingly, because he is not an 7 engineer, Mr. Ward will be precluded from testifying about the cause of the fire sprinkler 8 line failure. 9 3. Defendant Kowalski’s Motion to Exclude Mr. Komm 10 Defendant Kowalski also seeks to exclude Mr. Komm from “opining on two specific 11 things [: the] standard of care as to general contractors and damages.” (Doc. 98 at 3.) 12 Plaintiffs concede Mr. Komm shall not opine on the standard of care applicable to general 13 contractors. (Doc. 92 at 6.) As for damages, Plaintiffs argue Kowalski has not identified 14 which, if any, of Mr. Komm’s conclusions relate to damages. (Doc. 92 at 4.) The Court 15 agrees. As it relates to damages, the Court cannot determine what opinions in Mr. Komm’s 16 report Defendant seeks to exclude. “The proponent of expert testimony has the ultimate 17 burden of showing that the expert is qualified and the proposed testimony admissible, but 18 Defendants have the burden of at least identifying the opinions Plaintiffs must defend in a 19 Daubert motion.” In re Bard IVC Filters Prods. Liab. Litig., 2018 WL 775296 , at *3 20 (D. Ariz. Feb. 8, 2018). Due to the state of the briefing, the Court cannot conclude that any 21 portion of Mr. Komm’s testimony relates to damages. Accordingly, the portion of 22 Kowalski’s Motion to Exclude relating to damages is denied. 23 III. MOTIONS FOR SUMMARY JUDGMENT 24 In addition to the Motions to Exclude, both parties filed Motions for Summary 25 Judgment. The Court addresses both below. 26 A. Legal Standard 27 Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is 28 appropriate when: (1) the movant shows that there is no genuine dispute as to any material 1 fact; and (2) after viewing the evidence most favorably to the non-moving party, the 2 movant is entitled to prevail as a matter of law. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, [3] 477 U.S. 317, 322-23 (1986); Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1288-89 (9th 4 Cir. 1987). Under this standard, “[o]nly disputes over facts that might affect the outcome 5 of the suit under governing [substantive] law will properly preclude the entry of summary 6 judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A “genuine issue” 7 of material fact arises only “if the evidence is such that a reasonable jury could return a 8 verdict for the nonmoving party.” Id. 9 In considering a motion for summary judgment, the court must regard as true the 10 non-moving party’s evidence, if it is supported by affidavits or other evidentiary material. 11 Celotex, 477 U.S. at 324 ; Eisenberg, 815 F.2d at 1289 . However, the non-moving party 12 may not merely rest on its pleadings; it must produce some significant probative evidence 13 tending to contradict the moving party’s allegations, thereby creating a material question 14 of fact. Anderson, 477 U.S. at 256-57 (holding that the plaintiff must present affirmative 15 evidence in order to defeat a properly supported motion for summary judgment); First Nat’l 16 Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968). 17 “A summary judgment motion cannot be defeated by relying solely on conclusory 18 allegations unsupported by factual data.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 19 1989). “Summary judgment must be entered ‘against a party who fails to make a showing 20 sufficient to establish the existence of an element essential to that party’s case, and on 21 which that party will bear the burden of proof at trial.’” United States v. Carter, 906 F.2d 22 1375, 1376 (9th Cir. 1990) (quoting Celotex, 477 U.S. at 322 ). 23 B. Analysis 24 The Court begins its analysis with Plaintiffs’ Motion and then moves to Kowalski’s 25 Motion. 26 1. Plaintiffs’ Motion for Partial Summary Judgment 27 Plaintiffs contend they have met their burden of establishing negligence on the part 28 of both Defendants. As a result, Plaintiffs move for Summary Judgment on their negligence 1 claim. In their briefing however, Plaintiffs do not pin cite to specific documents in the 2 record to support that each element of negligence has been met. (Doc. 80 at 10-11.) Instead, 3 Plaintiffs generally state that because their expert report is unrebutted, Plaintiffs’ Motion 4 should be granted as a matter of law. (Doc. 80 at 11-16.) Rule 56 provides that the movant 5 must cite “to particular parts of materials in the record,” and “[t]he court need consider 6 only the cited materials” in the briefings. Fed. R. Civ. P. 56(c)(1), (3); see also Indep. 7 Towers of Wash. v. Wash., 350 F.3d 925 , 929 (9th Cir. 2003) (“Judges are not like pigs, 8 hunting for truffles buried in briefs.”). Without citing to specifics in the record, Plaintiffs’ 9 argument is unsupported and conclusory. 10 Further, there are underlying questions of fact embedded in the expert reports that 11 are the exclusive province of the jury. For example, according to Plaintiffs, the sprinkler 12 line was not supported by shoring at the time of the failure. (Doc. 107 at 4.) Additionally, 13 according to Plaintiffs, part of Mr. Ward’s expert testimony is based on this fact. (Doc. 107 14 at 4.) Kowalski, however, presents controverting evidence that the sprinkler line was 15 supported by shoring. (Doc. 102 at 12.) As a result, there is a genuine dispute of material 16 fact as to whether the sprinkler line that failed was supported by shoring. For the foregoing 17 reasons, Plaintiffs’ Motion for Partial Summary Judgement is denied. 18 2. Defendant Kowalski’s Motion for Summary Judgment 19 Defendant Kowalski moves for Summary Judgment on Plaintiffs’ contractual and 20 negligence claims. The Court first address the contractual claim and then moves to the 21 negligence claim. 22 a. Plaintiffs’ Contractual Claim 23 Defendant Kowalski contends it “performed all material obligations under the 24 December 2017 Contract.” (Doc. 84 at 10.) Kowalski further argues the scope of the work 25 pursuant to the contract was to “1) raise the double T roof deck, 2) raise the girder, 3) repair 26 the roof structure, and 4) replace [the] column and immediate area of slab removal.” 27 (Doc. 84 at 10.) By contrast, Plaintiffs assert the contract “also included a scope of work [28] 1 to repair the fire sprinkler system.” (Doc. 99 at 4.) To support this assertion, Plaintiffs point 2 to the “Fire protection” section of the contract. (Doc. 99 at 4.) 3 The “Fire protection” section states “[c]urrent repair maintains operation of system. 4 Budget amount to complete repairs once structure is brought back up into place.” (Doc. 99 5 at 4.) Kowalski argues that “‘[c]urrent repairs maintains operation of system,’ means the 6 temporary repair maintained the operation of the system so the facility could remain open 7 and the budget amount to complete the repairs will be added once the structure is brought 8 back into place.” (Doc. 84 at 5.) On the other hand, Plaintiffs urge that, during a deposition, 9 Kowalski’s “designated representative confirmed that a permanent repair of the structure 10 for the fire system was intended under the “Fire protection” section [of the contract].” 11 (Doc. 99 at 4.) Kowalski’s Motion depends on its claim that the scope of work 12 contemplated by the contract did not include repair or replacement of the fire sprinkler 13 system. Plaintiffs have raised a genuine issue of material fact as to whether the sprinkler 14 system repair was included within the scope of work contemplated by the contract. 15 Kowalski also argues it performed “its work in a reasonable and workmanlike 16 manner.” (Doc. 84 at 11.) A contractor impliedly warrants that he will perform in a 17 workmanlike manner even though the contract itself does not contain an express warranty 18 of good workmanship. See Reliable Elec. Co. v. Clinton Campbell Contractor, Inc., 459 19 P.2d 98 , (Ariz. Ct. App. 1969). Kowalski argues the contract required Defendant to “repair 20 the structure in accordance with restrictions placed on it by [P]laintiffs.” (Doc. 84 at 12.) 21 A key restriction, Kowalski argues, was that Plaintiffs’ consultant, Mr. Nicholson would 22 not approve Kowalski’s proposal to remove and replace the sprinkler system due to the 23 cost of doing so. (Doc. 84 at 12.) 24 Plaintiffs assert neither Mr. Nicholson nor Plaintiffs received or rejected the Metro 25 Fire Proposal. (Doc. 99 at 11.) Additionally, Plaintiffs argue testimony from Plaintiffs’ 26 expert, Mr. Ward, establishes that Kowalski did not meet the appropriate standard of care, 27 thus violating the implied warranty of good workmanship.1 Mr. Ward’s testimony 28 1 Plaintiffs argue that A.R.S. § 12-2602 mandates that “expert opinion testimony is necessary to evaluate a licensed professional’s standard of care or liability for a ‘claim’.” 1 concludes Kowalski breached its duty of care to Plaintiffs by “engaging in conduct that fell 2 below the applicable standard of care.” (Doc. 99 at 12.) Accordingly, there is a genuine 3 issue of material fact as to whether Kowalski performed in a reasonable and workmanlike 4 manner. 5 b. Plaintiffs’ Negligence Claim 6 “To establish a claim for negligence, a plaintiff must prove four elements: (1) a duty 7 requiring the defendant to conform to a certain standard of care; (2) a breach by the 8 defendant of that standard; (3) a causal connection between the defendant's conduct and 9 the resulting injury; and (4) actual damages.” Gipson v. Kasey, 150 P.3d 228, 230 (2007). 10 Defendant Kowalski asserts Plaintiffs’ negligence claim fails because Kowalski’s conduct 11 was not the proximate cause of Plaintiffs’ damages and because Kowalski did not owe a 12 duty to protect Plaintiffs’ property during repairs. (Doc. 84 at 13-14.) The Court begins its 13 analysis with proximate cause and then moves to duty. 14 Kowalski claims Plaintiffs were the proximate cause of the loss because the contract 15 did not include the repair of the fire sprinkler system and because Plaintiffs did not accept 16 the Metro Fire Proposal. (Doc. 84 at 5, 12.) As the Court previously stated, Plaintiffs have 17 raised a genuine issue of material fact as to whether the sprinkler system repair was 18 included within the scope of work contemplated by the contract. Further, as stated earlier, 19 Plaintiffs assert neither they nor Mr. Nicholson, Plaintiffs’ consultant, received or rejected 20 the Metro Fire Proposal. (Doc. 99 at 11.) Accordingly, there exists a genuine issue of 21 material fact as to whether Kowalski was the proximate cause of the loss. 22 Kowalski also asserts that it did not have a duty to protect Smurfit Kappa’s property 23 because it was not contained within Kowalski’s work area. (Doc. 84 at 14.) In Arizona, 24 contractors owe a duty of care to those who may be potentially harmed during the 25 performance of their work. Teufel v. Am. Fam. Mut. Ins. Co., 419 P.3d 546, 551 (Ariz. 26 2018) (a builder or contractor is held to a standard of reasonable care in the conduct of its [27] (Doc. 99 at 12.) Nothing in the state court record shows Plaintiffs certified that experts are 28 required in this case. (See Doc. 1.) Accordingly, the Court cannot determine which part of A.R.S.§ 12-2602, if any, applies. 1 duties to the foreseeable users of the property). Kowalski argues it “included a clause in 2 the contract, signed by [Plaintiffs], requiring the [P]laintiffs to remove personal property 3 from the area.” (Doc. 110 at 8.) Therefore, Kowalski contends, Plaintiffs “had a duty to 4 remove [their] inventory” from the area and by not doing so Plaintiffs assumed the risk of 5 the loss. Arizona, however, has established that builders owe “a common law duty of care 6 that is independent of a contractual duty.” Teufel, 419 P.3d 546 at 388 . Accordingly, as it 7 pertains to Plaintiffs’ negligence claim, the contract provision does not absolve Kowalski 8 from any potential duty toward the Plaintiffs. As stated earlier, Plaintiffs argue Mr. Ward’s 9 testimony states that Kowalski may have breached its duty of care to Plaintiffs by 10 “engaging in conduct that fell below the applicable standard of care.” (Doc. 99 at 12.) 11 Plaintiffs’ expert testimony creates a genuine issue of material fact as to whether Kowalski 12 breached its duty toward Plaintiffs. 13 Lastly, Kowalski argues Plaintiff Smurfit Kappa is “comparatively at fault” for 14 failing to remove its inventory from the area and, as a result, Kowalski does not owe a duty 15 to it. (Doc. 110 at 8.) Arizona adopted a comparative fault system in A.R.S. § 12–2506. In 16 actions for personal injury, property damage, or wrongful death, a defendant is liable “for 17 the amount of damages allocated to that defendant in direct proportion to that defendant’s 18 percentage of fault.” A.R.S. § 12-2506(A). Arguing Plaintiffs may also be at fault for the 19 damage caused by the sprinkler failure does not absolve Kowalski of the duty it may have 20 owed the Plaintiff. For the foregoing reasons, Kowalski’s Motion for Summary Judgment 21 is denied. 22 IV. CONCLUSION 23 In sum, the Court grants Plaintiffs’ Motion to Exclude some of Mr. Kulaga’s 24 testimony. (Doc. 82.) Mr. Kulaga’s testimony will be limited to mechanical engineering and 25 exclude opinions related to general construction. The Court also grants Defendant 26 Kowalski’s Motion to Exclude portions of Mr. Ward’s testimony. (Doc. 86.) Because he is 27 not an engineer, Mr. Ward will be precluded from testifying about the cause of the fire 28 sprinkler line failure. Finally, the Court grants in part and denies in part Defendant 1 || Kowalski’s Motion to Exclude some of Mr. Komm’s testimony. (Doc. 98.) The Court grants || Kowalski’s request to prevent Mr. Komm from opining on the standard of care for general || contractors but denies Kowalski’s request to preclude Mr. Komm from testifying about 4|| damages. The Court denies Plaintiffs’ Motion for Partial Summary Judgment (Doc. 80) 5 || and denies Defendant Kowalski’s Motion for Summary Judgment (Doc. 84). This case will 6 || proceed to trial. 7 IT IS ORDERED granting Plaintiffs’ Motion to Exclude some of Mr. Kulaga’s 8 || testimony (Doc. 82). 9 IT IS FURTHER ORDERED granting Defendant Kowalski’s Motion to Exclude 10 || portions of Mr. Ward’s testimony (Doc. 86). 11 IT IS FURTHER ORDERED granting in part and denying in part Defendant 12 || Kowalski’s Motion to Exclude some of Mr. Komm’s testimony (Doc. 87). 13 IT IS FURTHER ORDERED denying Plaintiffs’ Motion for Partial Summary Judgment (Doc. 80). 15 IT IS FURTHER ORDERED denying Defendant Kowalski’s Motion for || Summary Judgment (Doc. 84). 17 IT IS FURTHER ORDERED that the Court will set a pre-trial status conference 18 || by separate Order. 19 Dated this 31st day of March, 2022. CN i. Unifgd StatesDistrict Judge [28] -12-