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Raposa v. Cardi Corp.

Superior Court of Rhode Island

March 18, 2016

FRANKLIN D. RAPOSA, Plaintiff,
v.
CARDI CORPORATION and STATE OF RHODE ISLAND Defendants/Third-Party Plaintiff,
v.
COMMONWEALTH ENGINEERS AND CONSULTANTS, INC., Third-Party Defendant.

Newport County Superior Court.

For Plaintiff: Kenneth R. Tremblay, Esq.

For Defendant: Joseph A. Dimaio, Esq., Anne T. Turilli, Esq., Mark P. Dolan, Esq.

DECISION

STONE, J.

Before the Court is the Third-Party Defendant Commonwealth Engineers and Consultants, Inc.'s (Commonwealth) motion to strike the expert disclosures of Third-Party Plaintiff Cardi Corporation (Cardi). The matter arises out of this Court's December 16, 2015 Order instructing Cardi to disclose its expert witnesses "on or before February 16, 2016." Commonwealth alleges that it did not receive the aforementioned disclosure until February 18, 2016, and, when it did, the disclosure was wholly lacking in that it offered no opinions or conclusions whatsoever from Cardi's expert with respect to Commonwealth's alleged negligence. As a result, Commonwealth filed a motion to strike with the Court on February 25, 2016. Subsequently, on March 7, 2016, the Court heard oral arguments from the parties on the motion. Decision is herein rendered in favor of Commonwealth. Jurisdiction is pursuant to Super. R. Civ. P. 37.

I

Facts and Travel

The underlying factual background of this litigation stems from the construction of the Sakonnet River Bridge (the Bridge). Cardi was the general contractor for the construction of the Bridge. Franklin D. Raposa (Plaintiff) lives in Tiverton, Rhode Island, and, after the construction of the Bridge, he began to experience flooding on his property. On May 1, 2014, Plaintiff filed an action in the Newport County Superior Court alleging that Cardi negligently installed the drainage system for the Bridge and that, as a result, Plaintiff's home and yard have been periodically flooded with water from the negligently-installed drainage system.

Thereafter, on September 14, 2015, Cardi filed a Third-Party Complaint against Commonwealth seeking contribution and indemnification. In it, Cardi claimed that because Commonwealth designed the Bridge it was responsible for any defect relating to the Bridge, including the drainage system that Plaintiff complained of. In response, Commonwealth denied any negligence or wrongdoing.

On November 4, 2015, Commonwealth filed a Motion for Expert Disclosure and Entry of a Scheduling Order. Commonwealth filed the aforementioned Motion because the Third-Party Complaint sounded in professional malpractice, but it was yet to receive any expert discovery or disclosures from Cardi. The Motion came before the Court on December 7, 2015 and-over Cardi's objection-was granted. Accordingly, the Court entered an Order providing that Cardi had sixty days from the date of the hearing or, put another way, until February 16, 2016, to disclose its expert or experts. Commonwealth received the subject disclosure on February 18, 2016, although the disclosure was dated February 16, 2016.

In the disclosure, Cardi identified Michael J. Tuttman, P.E. (Tuttman) as its expert witness to testify regarding the applicable standard of care and Commonwealth's alleged deviation therefrom. Cardi further stated that it expected Tuttman to testify "with regard to the adequacies [or] inadequacies in the design of the Sakonnet River Bridge and the appropriate standard to which Cardi Corporation is to be held in performing the construction thereof."[1]Cardi's Expert Disclosure, 2. However, the disclosure also noted that "Mr. Tuttman has not completed his assessment or formulated his opinion to a degree of finally." Id. In total, the portion of the disclosure that related to Tuttman's expected testimony and opinions consisted of six short paragraphs, or roughly one typed page.

On February 25, 2016, Commonwealth filed a motion to strike Cardi's expert disclosure as being entirely devoid of any opinion of Tuttman which could conceivably support a claim of negligence against Commonwealth. As Commonwealth believed the disclosure made by Cardi was insufficient to comply with the Court's December 16, 2015 Order, it asked that the disclosure be stricken. Cardi did not file an objection to the motion to strike and, at oral arguments, it could not give a reason as to why the disclosure was late or why it was so lacking in substance. On March 7, 2016, after hearing oral arguments from the parties, the Court indicated that it would issue a written Decision.

II

Standard of Review


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