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Filing # 191297571 E-Filed 02/05/2024 07:30:41 PM
IN THE CIRCUIT COURT OF
THE NINTH JUDICIAL CIRCUIT
IN AND FOR OSCEOLA
COUNTY, FLORIDA
VILLAS AT EMERALD LAKE Case No.: 2020-CA-002942
HOMEOWNERS ASSOCIATION, INC., a
Florida not for profit corporation,
Plaintiff,
v.
ROYAL OAK HOMES, LLC, a Florida
limited liability company;
Defendants.
___________________________________/
And All Related Actions.
___________________________________/
PLAINTIFF’S DAUBERT MOTION AND/OR MOTION IN LIMINE
REGARDING CUMULATIVE EXPERT TESTIMONY
AND ROYAL OAK HOMES, LLC’S EXPERT
BRETT NEWKIRK, P.E.’S OPINIONS ON STATISTICS
Plaintiff Villas at Emerald Lake Homeowners Association, Inc., (the
“Association” or “Plaintiff”), by and through its undersigned counsel files this
Daubert Motion and/or Motion in Limine Regarding Cumulative of Expert
Testimony and Royal Oak Homes, LLC’s (“ROH” or “Defendant”) Expert Brett
Newkirk, P.E.’s Testimony and Opinions Regarding Statistics (“Motion”) and
further states:
I. RULING IN LIMINE SOUGHT
ROH, the developer and general contractor in this matter has disclosed
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multiple experts in this matter, including Brett Newkirk, P.E. (“Newkirk”), of Alta
Engineering (“Alta”) and Dr. Jamie Baldwin, Ph.D. (“Baldwin”).
Baldwin has been disclosed as the expert for and testified solely on the alleged
role statistics allegedly should have played in Plaintiff’s experts’ methodology and
testing at the Community. Newkirk then testified as to his own opinions regarding
his perceived deficiencies in Marcon’s testing methodology, focusing significantly
on the role of statistics, and the alleged improper extrapolation related to the same.
Further, Newkirk testified that he was an expert in statistics and, as such, his
testimony and criticism of Marcon Forensics, LLC’s (“Marcon”) methodology
should stand on its own. Contrarily, Newkirk was not disclosed as ROH’s expert
regarding statistics, is not qualified to testify on this topic, and any opinions
regarding the same are duplicative and unnecessary as ROH has disclosed Baldwin
to testify on statistics in Marcon’s testing methodology.
Therefore, Newkirk’s opinions and testimony regarding statistics are
unnecessary, duplicative, and cumulative; accordingly, the testimony of Newkirk
should be limited only to the opinions and testimony which is not duplicative or
cumulative of Baldwin’s.
II. BACKGROUND
1. This action arises out of the defective construction of the Villas at
Emerald Lake townhome community with twelve (12) buildings comprised of
2
eighty-eight (88) units located in Osceola County, Florida. (“Villas at Emerald
Lake”). Of the twelve buildings and eighty-eight units, ten (10) buildings comprised
of seventy-seven (77) units were developed and constructed by ROH (the
“Community”). ROH served as the certified general contractor for the Community
and hired numerous subcontractors, including the other defendants to this action, to
assist in the design and construction of the Community.
2. This is a complex, multi-party construction defect lawsuit where most
(if not all) of the parties each have their own experts who have offered their own
opinions and/or reports.
3. ROH has retained two experts, Brett Newkirk, P.E., and Dr. Jamie
Baldwin, Ph.D., both who have testified on behalf of ROH in the present matter. See
ROH Expert Disclosure (Doc. No. 420); see also Transcript of Deposition
Testimony of Brett Newkirk, dated April 18, 2023, attached hereto as Exhibit A-1
and Transcript of Deposition Testimony of Brett Newkirk, dated August 30, 2023,
attached hereto as Exhibit A-2; Transcript of Deposition Testimony of Dr. Jamie
Baldwin, dated May 19, 2023, attached hereto as Exhibit B.
4. ROH’s expert disclosure explicitly states that both Mr. Newkirk and
Ms. Baldwin will be rendering opinions on the “methodology and protocols utilized
by Marcon Forensics to investigate and allegedly identify the existence and scope of
the alleged defects and deficiencies at the subject property.” (Doc. No. 420).
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5. Only Baldwin was disclosed to render opinions on the “methodology
and protocols utilized by Marcon Forensics to investigate and allegedly identify the
existence and scope of the alleged defects and deficiencies at the subject property,
including, without limitation, all other statistical principles applicable to the
investigation and/or testing undertaken or conducted at the subject property, and
the reliability of extrapolations or projections based on the investigation and/or
testing conducted as identified in the reports prepared by Marcon Forensics.” Id. at
¶ 2. (emphasis added).
6. Both of ROH’s experts have expressed opinions criticizing the opinions
and/or methodology of Plaintiff’s experts, Felix Martin, P.E. of Marcon Forensics,
LLC (“Marcon”) and Sean Heaney of SMH Construction Services, Inc. (“SMH”),
as opposed to offering their own opinions based upon their own independent
investigations at this Community, specifically as it relates to statistical analysis,
sampling, and the requisite testing performed at the Community. See generally,
Exhibits A-1, A-2, and B.
III. MEMORANDUM OF LAW
Evidence is relevant if it is “tending to prove or disprove a material fact.” §
90.401, Fla. Stat. If the evidence is relevant, it is admissible, “except as provided by
law.” § 90.402, Fla. Stat. However, even if evidence is relevant, it still may be
excluded if its probative value is substantially outweighed by a danger of confusing
4
the issues or misleading the jury. § 90.403, Fla. Stat.
A. Daubert Standard
The Florida Supreme Court held the Daubert standard is the standard for the
admissibility of expert testimony, mirroring Federal Rule of Evidence 702. In re
Amendments to Fla. Evidence Code, 278 So. 3d 551, 553 (Fla. 2019). Therefore,
“expert opinions must meet the admissibility guidelines announced by the Supreme
Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and
Federal Rule of Evidence 702.” Lincoln Rock, LLC v. City of Tampa, 8:15-CV-1374-
T-30JSS, 2016 WL 6609759, at *2-3 (M.D. Fla. Nov. 9, 2016). “[T]he burden of
establishing qualification, reliability, and helpfulness rests on the proponent of the
expert opinion.” McClain v. Metabolife Int'l, Inc., 401 F.3d 1233, 1238 (11th Cir.
2005).
Under Federal Rule of Evidence 702 and § 90.702, Fla. Stat., expert-witness
testimony must satisfy four requirements:
(a) the expert's scientific, technical, or other specialized knowledge will help
the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of
the case.
Daubert, 509 U.S. 579 (1993); § 90.702, Fla. Stat. “[A]ny step that renders the
analysis unreliable under the Daubert factors renders the expert's testimony
inadmissible.” McClain, 401 F. 3d at 1245 (quotation and emphasis omitted).
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“Reliability” of expert testimony is determined by a “two-step inquiry” calculated
to decide (1) whether the expert is qualified to express an expert opinion, and (2)
whether the expert opinion is itself reliable. Bowersfield v. Suzuki Motor Corp., 151
F. Supp. 2d 625, 628 (E.D. Pa. 2001); citing In re TMI Litig., 193 F.3d 613, 663 (3d
Cir. 1999). These factors, however, are only a starting point for the reliability
analysis; the Eleventh Circuit and other courts have also considered “reliance on
anecdotal evidence” – such as a review of reports of others without performing their
own testing. Allison v. McGhan Med. Corp., 184 F.3d 1300, 1312 (11th Cir.1999).
This Court’s “gatekeeping” responsibility under Daubert cannot be
overstated. United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004). As the
Supreme Court framed it in Kumho Tire, “the objective of that requirement is to
ensure the reliability and relevancy of expert testimony. It is to make certain that an
expert, whether basing testimony upon professional studies or personal experience,
employs in the courtroom the same level of intellectual rigor that characterizes the
practice of an expert in the relevant field.” Kumho Tire Co. v. Carmichael, 526 U.S.
137, 152 (1999). The goal of the Daubert standard is to ensure expert testimony is
relevant and reliable. Daubert, 509 U.S. 579 (1993). Whether an expert’s testimony
is reliable depends on the facts and circumstances of the particular case. Id. at 158.
The party offering the expert testimony bears the burden of establishing reliability
and helpfulness. Frazier, 387 F.3d at 1260.
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Expert testimony “can be both powerful and quite misleading because of the
difficulty in evaluating it.” Daubert, 509 U.S. at 59. “Indeed, no other kind of
witness is free to opine about a complicated matter without any firsthand knowledge
of the facts in the case, and based upon otherwise inadmissible hearsay if the facts
or data are ‘of a type reasonably relied upon by experts in the particular field in
forming opinions or inferences upon the subject.’” Frazier, 387 F.3d at 1260 (citing
Fed. R. Evid. 702).
An expert opinion should be excluded if it is not “helpful” to the jury. Id. at
1262. Due to the powerful and potentially misleading effect of expert evidence,
sometimes expert opinions that otherwise meet the admissibility requirements may
still be excluded by applying Rule 403.” Id. at 1263 (citation omitted). “Indeed, the
judge in weighing possible prejudice against probative force under Rule 403 . . .
exercises more control over experts than over lay witnesses.” Id.
Although “an expert may be qualified by experience,” it does not follow “that
experience, standing alone, is a sufficient foundation rendering reliable any
conceivable opinion the expert may express.” See, Baan v. Columbia County, 180
So. 3d 1127, 1133 (Fla. 1st DCA 2015) (emphasis added); see also Frazier, 387 F.3d
at 1261 (11th Cir. 2004) (“If admissibility could be established merely by the ipse
dixit of an admittedly qualified expert, the reliability prong would be, for all practical
purposes, subsumed by the qualification prong.”).
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B. Motion in Limine Standard
A motion in limine is proper to prevent the introduction of inadmissible,
irrelevant, and unfairly prejudicial evidence. Fischman v. Suen, 672 So. 2d 644 (Fla.
4th DCA 1996); Dailey v. Multicon Development, Inc., 417 So. 2d 1106 (Fla. 4th
DCA 1982); Adkins v. Seaboard Coast Line Railroad Co., 351 So. 2d 1088 (Fla. 2d
DCA 1977). Despite logically relevant evidence being admissible under section
90.402, Florida Statutes, evidence is inadmissible under section 90.403, Florida
Statutes, when the probative value is "substantially outweighed by the danger of
unfair prejudice, confusion of the issues, misleading the jury, or needless
presentation of cumulative evidence." See § 90.403, Fla. Stat.; Thigpen v. United
Parcel Services, Inc., 990 So. 2d 639 (Fla. 4th DCA 2008).
A Motion in Limine is especially appropriate to preclude inadmissible
evidence which will be highly prejudicial to the moving party and, if referred to in a
question, would unlikely be disregarded by the jury despite an instruction by the
court to do so. Fischman v. Suen, 672 So. 2d 644, 645 (Fla. 4th DCA 1996). The test
for unfair prejudice is set forth in David v. Brown, 774 So. 2d 775 (Fla. 4th DCA
2001). The Court should consider: (1) the need for the evidence; (2) the tendency of
the evidence to suggest an improper basis to the jury for resolving the matter, e.g.,
an emotional basis; (3) the chain of inference necessary to establish the material fact;
and (4) the effectiveness of a limiting instruction. Id.
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Motions in Limine serve other purposes as well, such as: shortening the trial
by simplifying the issues; reducing the possibility of mistrials; permitting more
careful consideration of evidentiary issues than would take place during the heat of
trial; minimizing side-bar conferences and disruptions during trial; and enhancing
the efficiency of trials and promotion of settlements by resolving potentially critical
issues at the outset. Rosa v. Fla. Power & Light Co., 636 So. 2d 60, 61 (Fla. 2d DCA
1994).
C. Duplicative and/or Cumulative Testimony
“[S]ection 90.403, Florida Statutes (2019), allows for the exclusion of
relevant evidence if the evidence's probative value is substantially outweighed by
the needless presentation of cumulative evidence. §90.403, Fla. Stat. (2019).”
Lepera v. State, 328 So. 3d 1136, 1141 (Fla. 5th DCA 2021) (emphasis added). This
is, in part, because section 90.403 “requires a trial court to exercise reasonable
control over the presentation of evidence to avoid wasting time.” Id. “Courts should
exercise their discretion to avoid the needless waste of time through unnecessary
presentation of cumulative evidence.” Gutierrez v. Vargas, 239 So. 3d 615, 625 (Fla.
2018). “The real issue facing the trial court was whether a witness will offer
testimony that unnecessarily duplicates the testimony of another witness, in which
case the trial court has discretion to limit or exclude it.” Delgardo v. Allstate Ins.
Co., 731 So. 2d 11, 16 (Fla. 4th DCA 1999).
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IV. ARGUMENT
A. Newkirk’s Testimony as to the Sufficiency of Marcon’s Methodology,
Extrapolation, and Repair is Inadmissible
Newkirk’s testimony as to Marcon’s testing methodology and extrapolation
method is not based on any specialized knowledge, data, principles, or methodology
and does not provide analysis regarding the same as applied to the facts of the present
case. See generally, Ex. A-1 and A-2. Newkirk testified thoroughly regarding his
work and educational history and failed to note a history of specialization in
statistics. Id. at 14:19-28:8 Newkirk provides no basis for his authority on statistics
in testing beyond his own assertion that he is an expert in statistics based on his
educational history – having taken undergraduate and graduate-level statistics
classes and his experience. Ex. A-1, p. 133:10-134:4. Further, Newkirk did not defer
to the expert statistician also retained by ROH and offering opinions on the same
subject matter. See generally, Exs. A-1 and A-2. Newkirk also testified several times
that Alta did not perform its own statistical analysis for testing for this Community
and generally does not use a statistician when Alta does create a testing protocol
(which it did not do for this Community). Id. at pp. 99:5-100:1.
In his criticism of Marcon’s methodology, Newkirk specifically testified that:
“While Alta may not remark as to the inadequacy of the testing for extrapolation in
the narrative for each item, we generally object as to the statistical significance of
the testing with regard to every alleged defect. More testing is required to establish
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a statistically significant data pool from which a reasonable inference can be drawn
regarding the likelihood that any of the alleged defects are common throughout all
of the buildings.” Ex. A-1, pp. 84:22-85:6 (emphasis added). While Newkirk is
critical of the testing methodology and extrapolation performed by Marcon for the
Community, Newkirk admitted that he did not provide a statistical analysis that he
required of Marcon specific to the Community. Id., at 87:6-8; 93:1-7; 99:5-16;
132:17-133:8.
Newkirk is critical of Marcon’s testing methodology, conclusion regarding
the systemic nature of the defects in the Community, and its repair protocol.
However, Newkirk (i) did not perform his own destructive testing; (ii) did not
request interior access to units; (iii) did not perform or cause to be performed, any
window testing; and (iv) did not provide specific opinions as to the appropriate total
numbers of items/components of the buildings he believes should have been tested.
Ex. A-1, pp. 87:6-8; 93:1-7; 99:5-16; 132:17-133:8; 134:6-9. As such, Newkirk
failed to provide any alternative opinion based on specialized knowledge, or
sufficient facts or data, which would help the jury understand the evidence or
determine a fact at issue.
Newkirk’s opinion is nothing more than a circular argument that Marcon’s
testing is insufficient because it is insufficient and does not provide any substantive
alternative testing analysis specific to the Community or requisite number of cuts
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for the testing to be extrapolatable at the Community. Accordingly, Newkirk’s
opinions are not based on principles or methods that can reliably be applied to the
facts of the case.
B. Newkirk’s Opinions regarding Statistics and Methodology are
Duplicative
While Newkirk did not directly testify that his opinions regarding
extrapolation and testing methodology are the same as those proffered by Baldwin,
the effect of his proffered testimony is the same as if he did. See generally Exs. A-
1, A-2, and B. Newkirk and Baldwin’s testimony and opinions regarding testing
methodology and extrapolation are duplicative and cumulative opinions that merely
reiterate the same opinions over again (i.e., that the testing was insufficient,
specifically as it relates to extrapolation of the results across the Community). See
generally Exs. A-1, A-2, and B.
At trial, Baldwin will already be offering the exact same opinions based upon
the exact same evidence. (Doc. No. 420). Accordingly, additional testimony from
other retained experts reiterating the same testimony and opinions is plainly
duplicative and cumulative. Moreover, all of the experts are relying upon the same
evidence; to-wit, the destructive testing, and the records produced by the parties.
Not only are these opinions duplicative and cumulative, but they also pose the
very real threat of substantial prejudice to the Association. Repetition does not equal
truth; however, hearing the testimony from different individuals saying the exact
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same thing (i.e., that Plaintiff’s expert is wrong) over and over again would only
serve to prejudice the Plaintiff and deceive the jury into thinking that it must be true
if so many (paid) different people are saying it. The Court should therefore exercise
control over, and limit, the presentation of expert testimony to non-duplicative, non-
cumulative opinions.
V. CONCLUSION
As set forth above, Newkirk’s expert opinions should be excluded or limited
in the instant matter because his testimony: (i) will not help the trier of fact to
understand the evidence or to determine a fact in issue; (ii) is not based on sufficient
facts or data; (iii) is not the product of reliable principles and methods; and (iv) fails
to establish that he reliably applied reliable principles or methods to the facts of the
case. This, in and of itself, is insufficient to provide reliable expert opinion
testimony. Further, Newkirk’s testimony regarding statistics and extrapolation is
duplicative and cumulative of ROH’s statistician expert who was disclosed to opine
on those same topics. Therefore, Newkirk’s expert testimony must be excluded or
otherwise limited to prevent testimony regarding criticisms of Marcon’s testing
methodology, extrapolation, and the repair protocol as it relates to statistical analysis
within testing at the Community.
WHEREFORE, the Plaintiff respectfully requests this Court grant Plaintiff’s
Daubert Motion and/or Motion in Limine regarding cumulative and duplicative
13
expert testimony and/or Brett Newkirk’s testimony regarding statistics and grant any
further relief this Court deems necessary.
CERTIFICATE OF GOOD FAITH CONFERRAL
The undersigned counsel for the Plaintiff hereby certifies that she conferred
with Fiona Foley, Esq., counsel for the ROH, on February 1, 2024, regarding the
relief sought herein but that the parties were unable to reach an agreement.
DATED: This 5th day of February, 2024.
BALL JANIK LLP
By: /s/ Kasey L. Joyce__
Phillip Joseph, FL Bar No. 1000368
Evan Small, FL Bar No. 57306
Jeffrey Widelitz FL Bar No. 105642
Christopher Tribbey, FL Bar No. 1003114
Kasey L. Joyce, FL Bar No. 1024705
201 E Pine Street, Suite 600
Orlando, FL 32801
Telephone: (407) 455-5664
Facsimile: (407) 902-2105
pjoseph@balljanik.com
esmall@balljanik.com
jwidelitz@balljanik.com
ctribbey@balljanik.com
kjoyce@balljanik.com
dtodd@balljanik.com
cbetancourt@balljanik.com
bburton@balljanik.com
orlandodocket@balljanik.com
Counsel for Plaintiff Villas at Emerald
Lake Homeowners Association, Inc.
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CERTIFICATE OF SERVICE
I certify that a true copy of the foregoing has been filed via the Florida Courts
E-Filing Portal on February 5, 2024.
/s/ Kasey L. Joyce
Kasey L. Joyce, Esq.
SERVICE LIST
LUIS PRATS THAMIR A.R. KADDOURI, JR.
LANNIE D. HOUGH, JR. PENELOPE T. ROWLETT
JAMES MICHAEL WALLS BETH ANN TOBEY
ROBIN H. LEAVENGOOD Law Office of Thamir A.R. Kaddouri,
Carlton Fields, P.A. Jr. P.A.
4221 W. Boy Scout Boulevard 3220 West Cypress Street
Tampa, FL 33607-5780 Tampa, FL 33607
(813) 223-7000 (813) 879-5752
lprats@carltonfields.com thamir.kaddouri@tampalaw.org
lhough@carltonfields.com service@tampalaw.org
mwalls@carltonfields.com beth.tobey@tampalaw.org
rleavengood@carltonfields.com
mramos@carltonfields.com Counsel for Defendant, Imperial
nbonilla@carltonfields.com Building Corporation
ejohnson@carltonfields.com
krick@carltonfields.com
Counsel for Defendant, Royal Oak
Homes, LLC
PAUL SIDNEY ELLIOTT PETER J. KAPSALES
P.O. Box 274204 MARGARET M. EFTA
Tampa, FL 33688-4204 Milne Law Group, P.A.
(813) 265-1314 301 E. Pine Street, Suite 525
pse@psejd.com Orlando, FL 32801
(321) 558-7700
pkapsales@milnelawgroup.com
15
Counsel for Defendant, Hugh mefta@milnelawgroup.com
MacDonald Construction, Inc. (HMC) eservice@milnelawgroup.com
DENISE M. ANDERSON Counsel for Defendant, Weathermaster
ASHLEY M. MATTINGLY Building Products, Inc.
Butler Weihmuller Katz Craig LLP
400 N. Ashley Drive, Suite 2300
Tampa, FL 33602
(813) 281-1900
danderson@butler.legal
amattingly@butler.legal
krieck@butler.legal
rjorge@butler.legal
Co-Counsel for Defendant, Hugh
MacDonald Construction, Inc.
DENISE M. ANDERSON ANDREW E. HOLWAY
DAVID A. MERCER J. ROCCO CAFARO
Butler Weihmuller Katz Craig, LLP Hill Ward Henderson
400 N. Ashley Drive, Suite 2300 101 E. Kennedy Blvd., Suite 3700
Tampa, FL 33602 Tampa, FL 33602
danderson@butler.legal (813) 221-3900
dmercer@butler.legal andrew.holway@hwhlaw.com
krieck@butler.legal derrick.calandra@hwhlaw.com
rjorge@butler.legal jill.kuty@hwhlaw.com
tbarry@butler.legal kathy.wernsing@hwhlaw.com
rocco.cafaro@hwhlaw.com
Counsel for Defendant, Don King’s tracy.coale@hwhlaw.com
Concrete, Inc.
Counsel for Defendant/Cross
Defendant, Weintraub Inspections &
Forensics, Inc. n/k/a Weintraub
Engineering and Inspections, Inc.
JAYNE ANN PITTMAN BRUCE R. CALDERON
NATALIE C. FISCHER ALICIA Z. GROSS
Conroy Simberg BARRI A. REISCH
Two South Orange Avenue, Suite 300 Milber Makris Plousadis & Seiden,
Orlando, FL 32801 LLP
16
(407) 649-9797 1900 NW Corporate Blvd.
eserviceorl@conroysimberg.com East Tower, Suite 440
jpittman@conroysimberg.com Boca Raton, FL 33431
mmaitland@conroysimberg.com (561) 994-7310
nfischer@conroysimberg.com bcalderon@milbermakris.com
azgross@milbermakris.com
Counsel for Defendant, Advanced breisch@milbermakris.com
Wrapping and Concrete Solutions of kmcdowell@milbermakris.com
Central Florida, Inc. sskowronski@milbermakris.com
Counsel for Defendant/Cross-
Defendant, Brown + Company
Architecture, Inc.
JENNIFER MILLER BROOKS S. SCOTT ROSS
KIRA TSIRING Groelle & Salmon, P.A.
Hamilton, Miller & Birthisel, LLP 1715 N. Westshore Blvd., Suite 320
150 Southeast Second Avenue, Suite Tampa, FL 33607
1200 (813) 849-7200
Miami, FL 33131-2332 gstcourtdocs@gspalaw.com
(305) 379-3686 sross@gspalaw.com
jmiller@hamiltonmillerlaw.com cebanks@gspalaw.com
ktsiring@hamiltonmillerlaw.com mcoleman@gspalaw.com
jcasaccio@hamiltonmillerlaw.com
Counsel for Third-Party Defendant,
Counsel for Defendant/Cross- Helberg Enterprises, LLC
Defendant, TGK Stucco, Inc.
VICKI LAMBERT ANDREW T. MARSHALL
ALEC MASSON SARA W. MAPES
Luks, Santaniello, Petrillo & Cohen Hamilton, Price & Marshall, P.A.
201 S. Orange Avenue, Suite 400 2400 Manatee Ave. W.
Orlando, FL 32801 Bradenton, FL 34205
(407) 540-9170 (941) 748-0550
luksorl-pleadings@ls-law.com andrew@hamiltonpricelaw.com
amason@insurancedefense.net sara@hamiltonpricelaw.com
jpestonit@insurancedefense.net nancy@hamiltonpricelaw.com
kelsey@hamiltonpricelaw.com
Counsel for Third-Party Defendant, atmservice@hamiltonpricelaw.com
Casey Hawkins Glass, Inc.
17
PHILLIP S. HOWELL Counsel for Third-Party Defendant,
BRENDEN C. COLLINS T&M Construction of Sanford, Inc.
Galloway, Johnson, Tompkins, Burr &
Smith, P.L.C. WILLIAM M. WOODS
400 N. Ashley Dr., Suite 1000 JOSEPH M. CLINE
Tampa, FL 33602 100 S. Missouri Avenue, Suite 201
(813) 977-1200 Clearwater, Fl 33756
tampaservice@gallowaylawfirm.com (727) 799-1229, Ext. 4072
phowell@gallowaylawfirm.com wwoods@willwoodslaw.com
bcollinsl@gallowaylawfirm.com josephc@willwoodslaw.com
marital@willwoodslaw.com
Counsel for Third-Party Defendant, pleadings@willwoodslaw.com
Casey Hawkins Glass, Inc.
Counsel for Third-Party Defendants,
T & M Construction of Sanford, Inc.
and All Glass Installation Corp.
JOSEPH L. ZOLLNER COLE J. COPERTINO
Law Office of Christopher Norris Wright, Fulford, Moorhead & Brown,
PO Box 7217 P.A.
London, KY 40742 505 Maitland Avenue, Suite 1000
(904) 346-5422 Altamonte Springs, FL 32701
floridacdlegalmail@libertymutual.com (407) 425-0234
joseph.zollner@libertymutual.com ccopertino@wfmblaw.com
cbraungart@wfmblaw.com
Counsel for Third-Party Defendant, lwilliams@wfmblaw.com
Lios Concrete Corp
Counsel for Third-Party Defendant,
Well Hung Windows & Doors
MONAL O. ZIPPER CHESLEY G. MOODY, JR.
JENNIFE SHIPPOLE MAI M. LE
Law Office of Jennifer L. Shippole Moody & Graf, P.A.
14050 NW 14th Street, Suite 180 1101 N. Lake Destiny Road, Suite 200
Sunrise, FL 33323 Maitland, FL 32751
(954) 417-3066 Ext. 4645 (407) 755-6900
jlspleadings@fednat.com cmoody@moodygraf.com
mzipper@fednat.com mle@moodygraf.com
jshippole@fednat.com kbraund@moodygraf.com
iperera@moodygraf.com
Counsel for Third-Party Defendant,
Atlantic Concrete Systems, Inc.
18
Counsel for Premier Plastering of
Central Florida, Inc. Withdrew for
Premier Plastering only 3.4.2022 &
Defendant/Cross-Defendant, Wolf’s
Irrigation & Landscaping, Inc.
JERRILYNN HADLEY WAYNE M. ALDER
TODD M. LADAUCEUR Fisher Broyles, LLP
Galloway, Johnson, Tompkins, Burr 7668 N. W. 125th Way
and Smith, PLC Pompano Beach, FL 33076
118 E. Garden Street (954) 603-6174
Pensacola, FL 32502 wayne.alder@fisherbroyles.com
(850) 436-7000 wmalder@bellsouthnet.com
tmlconstruction@gallowaylawfirm.com
Counsel for Third-Party Defendant,
Counsel for Third-Party Defendant E.R.O. Construction, Inc. and Well
Hobbit Windows, LLC Done Windows, Inc.
SHAUN M. QUINN
JACKELINE RODRIGUEZ
Hamilton, Miller & Birthisel, LLP
150 S.E. 2nd Avenue, Suite 1200
Miami, FL 33131
(305) 379-3686
squinn@hamiltonmillerlaw.com
jrodriguez@hamiltonmiller.com
Counsel for Defendant/ Cross-
Defendant, Premier Plastering of
Central Florida, Inc.
UNREPRESENTED PARTIES
Expert Painting & Pressure Washing,
Inc.
c/o Richard C. Bates, Registered Agent
3631 Late Morning Cir.
Kissimmee, FL 34744
19
EXHIBIT “A-1”
In The Matter Of:
Villas at Emerald Lake Homeowners Association, Inc. v.
Royal Oak Homes, LLC et al.
Brett Newkirk
April 18, 2023
Legal Realtime Reporting
622 E. Washington Street
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Original File Brett D. Newkirk_P.E..txt
Min-U-Script® with Word Index
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1 IN THE CIRCUIT COURT OF THE
NINTH JUDICIAL CIRCUIT, IN
2 AND FOR OSCEOLA COUNTY, FLORIDA
3 CASE NO.: 2020-CA-002942
4 VILLAS AT EMERALD LAKE HOMEOWNERS
ASSOCIATION, INC., a Florida not for profit
5 corporation,
6 Plaintiff,
7 vs.
8 ROYAL OAK HOMES, LLC, a Florida limited liability
company; ADVANCED WRAPPING AND CONCRETE SOLUTIONS OF
9 CENTRAL FLORIDA, INC., a Florida corporation; DON KING's
CONCRETE, INC., a Florida corporation; HUGH MACDONALD
10 CONSTRUCTION, INC., a Florida corporation; IMPERIAL
BUILDING CORPORATION, a Florida corporation; PREMIER
11 PLASTERING OF CENTRAL FLORIDA, INC. N/K/A TGK STUCCO,
INC., a Florida corporation; WEATHERMASTER BUILDING
12 PRODUCTS, INC., a Florida corporation; WEINTRAUB
INSPECTIONS & FORENSICS, INC. N/K/A WEINTRAUB
13 ENGINEERING AND INSPECTIONS, INC., a Florida
corporation; THE DIMILLO GROUP, LLC, a Florida limited
14 liability company; WOLF'S IRRIGATION & LANDSCAPING,
INC., a Florida corporation; SUMMERPARK HOMES, INC., a
15 Florida corporation; BROWN + COMPANY ARCHITECTURE, INC.,
a Florida corporation; EXPERT PAINTING & PRESSURE
16 WASHING, INC., a Florida Profit Corporation,
17 Defendants.
18 (Continued on next page.)
19 * * * * * * * * * * * * * * * * * * * * * * * * * * * *
20 DEPOSITION OF: BRETT D. NEWKIRK, P.E.
21 DATE TAKEN: April 18, 2023
22 BEGINNING TIME: 9:37 a.m.
ENDING TIME: 5:01 p.m.
23
PLACE: Via Remote
24
REPORTED BY: YNDIRA MEDINA, CCR, FPR
25 and Notary Public
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1 ROYAL OAKS HOME, LLC,
2 Cross-Claimant,
3 vs.
4 ADVANCED WRAPPING AND CONCRETE SOLUTIONS OF CENTRAL
FLORIDA, INC., a Florida corporation; DON KING'S
5 CONCRETE, INC., a Florida corporation; HUGH MACDONALD
CONSTRUCTION, INC., a Florida corporation; IMPERIAL
6 BUILDING CORPORATION, a Florida corporation; PREMIER
PLASTERING OF CENTRAL FLORIDA, INC. N/K/A TGK STUCCO,
7 INC., a Florida corporation; WEATHERMASTER BUILDING
PRODUCTS, INC., a Florida corporation; WEINTRAUB
8 INSPECTIONS & FORENSICS, INC. N/K/A WEINTRAUB
ENGINEERING AND INSPECTIONS, INC., WOLF'S IRRIGATION &
9 LANDSCAPING, INC., a Florida corporation; BROWN +
COMPANY ARCHITECTURE, INC., a Florida corporation,
10
Cross-Defendants.
11
* * * * * * * * * * * * * * * * * * * * * * * * * * * *
12
WEATHERMASTER BUILDING PRODUCTS, INC., a
13 Florida corporation,
14 Third-Party Plaintiff,
15 vs.
16 ALL GLASS INSTALLATION CORP., a Florida corporation;
CASEY HAWKINS GLASS, INC., a Florida corporation;
17 DEAN NESBIT, LLC, a Florida limited liability company;
HELBERG ENTERPRISES, LLC, a Florida limited liability
18 company; HOBBIT WINDOWS, LLC, a Florida limited
liability; T&M CONSTRUCTION OF SANFORD, INC., a Florida
19 corporation; WELL DONE WINDOWS, INC., a Florida
corporation; and WELL HUNG WINDOWS & DOORS, LLC, a
20 Florida limited liability company,
21 Third-Party Defendants.
22 (Continued on next page.)
23 * * * * * * * * * * * * * * * * * * * * * * * * * * * *
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1 DON KING'S CONCRETE, INC., a Florida corporation,
2 Third-Party Plaintiff,
3 vs.
4 E.R.O. CONSTRUCTION, INC., a Florida corporation; LIOS
CONCRETE CORP., a Florida corporation; and ATLANTIC
5 CONCRETE SYSTEMS, INC., a Florida corporation,
6 Third-Party Defendants.
7 * * * * * * * * * * * * * * * * * * * * * * * * * * * *
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1 APPEARANCES:
2 KASEY L. JOYCE, ESQUIRE
Ball Janik, LLP
3 201 E. Pine Street
Suite 600
4 Orlando, Florida 32801
kjoyce@balljanik.com
5
Appearing remotely on behalf of the Plaintiff/
6 Villas at Emerald Lake Homeowners Association, Inc.
7
JAMES MICHAEL WALLS, ESQUIRE
8 ROBIN H. LEAVENGOOD, ESQUIRE
Carlton Fields, P.A.
9 4221 W. Boy Scout Boulevard
Tampa, Florida 33607
10 mwalls@carltonfields.com
rleavengood@carltonfields.com
11
Appearing remotely on behalf of the Defendant/
12 Royal Oak Homes, LLC.
13
ASHLEY M. MATTINGLY, ESQUIRE
14 Butler Weihmuller Katz Craig, LLP
400 N. Ashley Drive
15 Suite 2300
Tampa, Florida 33602
16 amattingly@butler.legal
17 Appearing remotely on behalf of the Defendant/
Hugh MacDonald Construction, Inc.
18
19 SHAWN M. TRAUTMAN, ESQUIRE
Milne Law Group, P.A.
20 301 E. Pine Street
Suite 525
21 Orlando, Florida 32801
strautman@milnelawgroup.com
22
Appearing remotely on behalf of the Defendant/
23 Weathermaster Building Products, Inc.
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1 BRUCE R. CALDERON, ESQUIRE
Milber Makris Plousadis & Seiden, LLP
2 1900 NW Corporate Boulevard
East Tower, Suite 440
3 Boca Raton, Florida 33431
bcalderon@milbermakris.com
4
Appearing remotely on behalf of the
5 Defendant/Cross-Defendant/
Brown + Company Architecture, Inc.
6
7 KIRA TSIRING, ESQUIRE
Hamilton, Miller & Birthisel, LLP
8 150 Southeast Second Avenue
Suite 1200
9 Miami, Florida 33131
ktsiring@hamiltonmillerlaw.com
10
Appearing remotely on behalf of the
11 Defendant/Cross-Defendant/
TGK Stucco, Inc.
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13 COLE J. COPERTINO, ESQUIRE
MARI L. MINKS, ESQUIRE
14 Wright, Fulford, Moorhead & Brown, P.A.
505 Maitland Avenue
15 Suite 1000
Altamonte Springs, Florida 32701
16 ccopertino@wfmblaw.com
mminks@wfmblaw.com
17
Appearing remotely on behalf of the Third-Party
18 Defendant/
Well Hung Windows & Doors.
19
20 S. SCOTT ROSS, ESQUIRE
Groelle & Salmon, P.A.
21 1715 N. Westshore Boulevard
Suite 320
22 Tampa, Florida 33607
sross@gspalaw.com
23
Appearing remotely on behalf of the Third-Party
24 Defendant/
Helberg Enterprises, LLC.
25
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1 NATALIE C. FISCHER, ESQUIRE
Conroy Simberg
2 Two South Orange Avenue
Suite 300
3 Orlando, Florida 32801
nfischer@conroysimberg.com
4
Appearing remotely on behalf of the Defendant/
5 Advanced Wrapping and Concrete Solutions of Central
Florida, Inc.
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7 ANDREW E. HOLWAY, ESQUIRE
Hill Ward Henderson
8 101 E. Kennedy Boulevard
Suite 3700
9 Tampa, Florida 33602
andrew.holway@hwhlaw.com
10
Appearing remotely on behalf of the
11 Defendant/Cross-Defendant/
Weintraub Inspections & Forensics, Inc. n/k/a Weintraub
12 Engineering and Inspections, Inc.
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CHRISTOPHER NORRIS, ESQUIRE
14 Law Office of Christopher Norris
P.O. Box 7217
15 London, Kentucky 40742
floridacdlegalmail@libertymutual.com
16
Appearing remotely on behalf of the Third-Party
17 Defendant/
Lios Concrete Corp.
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19 YARITSSA PLASENCIA, ESQUIRE
Law Office of Thamir A.R. Kaddouri, Jr., P.A.
20 3220 West Cypress Street
Tampa, Florida 33607
21 yaritssa.plasencia@tampalaw.org
22 Appearing remotely on behalf of the Defendant/
Imperial Building Corporation.
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1 BRENDEN C. COLLINS, ESQUIRE
Galloway, Johnson, Tompkins, Burr & Smith, PLC
2 400 N. Ashley Drive
Suite 1000
3 Tampa, Florida 33602
bcollins@gallowaylawfirm.com
4
Appearing remotely on behalf of the Third-Party
5 Defendant/
Casey Hawkins Glass, Inc.
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7 CHRISTOPHER K. RITCHIE, ESQUIRE
Galloway, Johnson, Tompkins, Burr & Smith, PLC
8 118 E. Garden Street
Pensacola, Florida 32502
9 critchie@gjtbs.com
10 Appearing remotely on behalf of the Third-Party
Defendant/
11 Hobbit Windows, LLC.
12
JOSEPH M. CLINE, ESQUIRE
13 The Law Offices of William Woods
100 S. Missouri Avenue
14 Suite 201
Clearwater, Florida 33756
15 josephc@willwoodslaw.com
16 Appearing remotely on behalf of the Third-Party
Defendants/
17 T&M Construction of Sanford, Inc. and All Glass
Installation Corp.
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1 C O N T E N T S
2 TESTIMONY OF BRETT D. NEWKIRK, P.E.
3 Direct Examination by Ms. Joyce 09
4 CERTIFICATE OF REPORTER 175
5 ERRATA SHEET 176
6
7 - - - - -
8 E X H I B I T S
9 Exhibit 129 Amended Notice of Taking Deposition 12
Duces Tecum
10
Exhibit 130 Curriculum Vitae 13
11
Exhibit 131 Alta Engineering Company Report 48
12
Exhibit 132 Field Notes 65
13
14 (Exhibits attached to transcript.)
15 - - - - -
16
17 S T I P U L A T I O N S
18 It is hereby agreed and so stipulated by and
19 between the parties hereto, through their respective
20 counsel, that the reading and signing of the transcript
21 is expressly reserved.
22
23 - - - - -
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1 P R O C E E D I N G S
2 **********
3 THE REPORTER: Raise your right hand, please.
4 Do you swear or affirm that the testimony you shall
5 give will be the truth, the whole truth, and
6 nothing but the truth, so help you God?
7 THE WITNESS: I do.
8 BRETT D. NEWKIRK, P.E.,
9 having first been duly sworn or affirmed, testified as
10 follows:
11 DIRECT EXAMINATION BY MS. JOYCE:
12 Q Good morning, Mr. Newkirk. My name is
13 Kasey Joyce. I represent the Villas at Emerald Lake
14 Homeowners Association, Incorporated. If I refer to
15 that as just the association, will you understand what
16 I'm referring to?
17 A I will.
18 Q Okay. And we're here today regarding the
19 Villas at Emerald Lake townhomes project in Osceola
20 County, Florida. If I refer to the Villas at Emerald
21 Lake townhome community as either Villas at Emerald
22 Lake, the community, or the project, will you know what
23 I'm referring to?
24 A I will.
25 Q Okay. And you're here today to testify as the
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1 expert on behalf of Royal Oak Homes, LLC.
2 Is that correct?
3 A Yes.
4 Q And if I refer to them as Royal Oak, will you
5 know what I'm referring to?
6 THE WITNESS: Hey, Mike, you're not on mute,
7 if you want to be. But, yes, I'll understand.
8 MR. WALLS: My IT guy is telling me I'm back
9 on, so I'm going to go to my computer now and see
10 if that works.
11 MS. JOYCE: All right. If you want, we can go
12 off the record for, like, 15 minutes so you can get
13 resettled, if that works for you.
14 MR. WALLS: I would say five minutes. He's
15 telling me I'm good. So I'll just walk over to my
16 office and it should be running. Sorry about this.
17 I really apologize.
18 MS. JOYCE: That's fine. Let's try to start
19 at 9:45, if that works for you.
20 THE WITNESS: Okay.
21 (Whereupon, a brief recess was held.)
22 MS. JOYCE: Madam Court Reporter, did you get
23 my last two questions?
24 THE REPORTER: Yes, I did. The last two
25 questions: "Question: Okay. And you're here
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1 today to testify as the expert on behalf of Royal
2 Oak Homes, LLC. Is that correct? Answer: Yes.
3 Question: And if I refer to them as Royal Oak,
4 will you know what I'm referring to? Answer: Hey,
5 Mike, you're not on mute, if you want to be. But,
6 yes, I'll understand."
7 BY MS. JOYCE:
8 Q So I think based on the answer she read back,
9 I'm just going to ask this one more time. If I refer to
10 Royal Oak Homes, LLC as Royal Oak, will you know what
11 I'm referring to?
12 A I will.
13 Q So just to get started, can we get your full
14 name and address?
15 A Brett Douglas Newkirk. Address is
16 11329 Distribution Avenue West, Jacksonville, Florida
17 32256.
18 Q And is that a residential address or a
19 business address?
20 A Business.
21 Q Okay. And have you been deposed before?
22 A I have.
23 Q How many times?
24 A I'm not sure, but well over a hundred.
25 Q Okay. So can we assume that you know the
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1 ground rules for depositions?
2 A Yes.
3 Q Okay. I'm going to just list out a couple,
4 just for the sake of the record. If you don't
5 understand my question or if it's not clear, please let
6 me know; otherwise, if you answer, I will assume that
7 you understood the question.
8 Is that fair?
9 A It is.
10 Q Okay. And then obviously, breaks are fine.
11 All I ask is that if I have an outstanding question and
12 you need to take a break, can you answer the question
13 before you take the break?
14 A I can.
15 Q All right. I'm going to pull up what is going
16 to be Exhibit 129. Have you seen -- sorry, I'm going to
17 scroll down a little bit.
18 Have you seen this document before?
19 A Yes, I have.
20 Q And what is this document?
21 A I believe it's the notice for my deposition.
22 Q All right. I'm going to scroll down to the
23 bottom here.
24 Have you reviewed the Schedule A?
25 A Yes.
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1 Q And did you produce all of the documents that
2 were requested in the Schedule A, in your job file?
3 A If you don't mind stopping so I can read it,
4 please.
5 Q Oops, sorry.
6 A I do not -- I did not produce a copy of
7 Number 6.
8 Q Okay.
9 A I did not provide copies of any and all
10 transcripts for
Preview
Filing # 191297571 E-Filed 02/05/2024 07:30:41 PM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA VILLAS AT EMERALD LAKE Case No.: 2020-CA-002942 HOMEOWNERS ASSOCIATION, INC., a Florida not for profit corporation, Plaintiff, v. ROYAL OAK HOMES, LLC, a Florida limited liability company; Defendants. ___________________________________/ And All Related Actions. ___________________________________/ PLAINTIFF’S DAUBERT MOTION AND/OR MOTION IN LIMINE REGARDING CUMULATIVE EXPERT TESTIMONY AND ROYAL OAK HOMES, LLC’S EXPERT BRETT NEWKIRK, P.E.’S OPINIONS ON STATISTICS Plaintiff Villas at Emerald Lake Homeowners Association, Inc., (the “Association” or “Plaintiff”), by and through its undersigned counsel files this Daubert Motion and/or Motion in Limine Regarding Cumulative of Expert Testimony and Royal Oak Homes, LLC’s (“ROH” or “Defendant”) Expert Brett Newkirk, P.E.’s Testimony and Opinions Regarding Statistics (“Motion”) and further states: I. RULING IN LIMINE SOUGHT ROH, the developer and general contractor in this matter has disclosed 1 multiple experts in this matter, including Brett Newkirk, P.E. (“Newkirk”), of Alta Engineering (“Alta”) and Dr. Jamie Baldwin, Ph.D. (“Baldwin”). Baldwin has been disclosed as the expert for and testified solely on the alleged role statistics allegedly should have played in Plaintiff’s experts’ methodology and testing at the Community. Newkirk then testified as to his own opinions regarding his perceived deficiencies in Marcon’s testing methodology, focusing significantly on the role of statistics, and the alleged improper extrapolation related to the same. Further, Newkirk testified that he was an expert in statistics and, as such, his testimony and criticism of Marcon Forensics, LLC’s (“Marcon”) methodology should stand on its own. Contrarily, Newkirk was not disclosed as ROH’s expert regarding statistics, is not qualified to testify on this topic, and any opinions regarding the same are duplicative and unnecessary as ROH has disclosed Baldwin to testify on statistics in Marcon’s testing methodology. Therefore, Newkirk’s opinions and testimony regarding statistics are unnecessary, duplicative, and cumulative; accordingly, the testimony of Newkirk should be limited only to the opinions and testimony which is not duplicative or cumulative of Baldwin’s. II. BACKGROUND 1. This action arises out of the defective construction of the Villas at Emerald Lake townhome community with twelve (12) buildings comprised of 2 eighty-eight (88) units located in Osceola County, Florida. (“Villas at Emerald Lake”). Of the twelve buildings and eighty-eight units, ten (10) buildings comprised of seventy-seven (77) units were developed and constructed by ROH (the “Community”). ROH served as the certified general contractor for the Community and hired numerous subcontractors, including the other defendants to this action, to assist in the design and construction of the Community. 2. This is a complex, multi-party construction defect lawsuit where most (if not all) of the parties each have their own experts who have offered their own opinions and/or reports. 3. ROH has retained two experts, Brett Newkirk, P.E., and Dr. Jamie Baldwin, Ph.D., both who have testified on behalf of ROH in the present matter. See ROH Expert Disclosure (Doc. No. 420); see also Transcript of Deposition Testimony of Brett Newkirk, dated April 18, 2023, attached hereto as Exhibit A-1 and Transcript of Deposition Testimony of Brett Newkirk, dated August 30, 2023, attached hereto as Exhibit A-2; Transcript of Deposition Testimony of Dr. Jamie Baldwin, dated May 19, 2023, attached hereto as Exhibit B. 4. ROH’s expert disclosure explicitly states that both Mr. Newkirk and Ms. Baldwin will be rendering opinions on the “methodology and protocols utilized by Marcon Forensics to investigate and allegedly identify the existence and scope of the alleged defects and deficiencies at the subject property.” (Doc. No. 420). 3 5. Only Baldwin was disclosed to render opinions on the “methodology and protocols utilized by Marcon Forensics to investigate and allegedly identify the existence and scope of the alleged defects and deficiencies at the subject property, including, without limitation, all other statistical principles applicable to the investigation and/or testing undertaken or conducted at the subject property, and the reliability of extrapolations or projections based on the investigation and/or testing conducted as identified in the reports prepared by Marcon Forensics.” Id. at ¶ 2. (emphasis added). 6. Both of ROH’s experts have expressed opinions criticizing the opinions and/or methodology of Plaintiff’s experts, Felix Martin, P.E. of Marcon Forensics, LLC (“Marcon”) and Sean Heaney of SMH Construction Services, Inc. (“SMH”), as opposed to offering their own opinions based upon their own independent investigations at this Community, specifically as it relates to statistical analysis, sampling, and the requisite testing performed at the Community. See generally, Exhibits A-1, A-2, and B. III. MEMORANDUM OF LAW Evidence is relevant if it is “tending to prove or disprove a material fact.” § 90.401, Fla. Stat. If the evidence is relevant, it is admissible, “except as provided by law.” § 90.402, Fla. Stat. However, even if evidence is relevant, it still may be excluded if its probative value is substantially outweighed by a danger of confusing 4 the issues or misleading the jury. § 90.403, Fla. Stat. A. Daubert Standard The Florida Supreme Court held the Daubert standard is the standard for the admissibility of expert testimony, mirroring Federal Rule of Evidence 702. In re Amendments to Fla. Evidence Code, 278 So. 3d 551, 553 (Fla. 2019). Therefore, “expert opinions must meet the admissibility guidelines announced by the Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Federal Rule of Evidence 702.” Lincoln Rock, LLC v. City of Tampa, 8:15-CV-1374- T-30JSS, 2016 WL 6609759, at *2-3 (M.D. Fla. Nov. 9, 2016). “[T]he burden of establishing qualification, reliability, and helpfulness rests on the proponent of the expert opinion.” McClain v. Metabolife Int'l, Inc., 401 F.3d 1233, 1238 (11th Cir. 2005). Under Federal Rule of Evidence 702 and § 90.702, Fla. Stat., expert-witness testimony must satisfy four requirements: (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case. Daubert, 509 U.S. 579 (1993); § 90.702, Fla. Stat. “[A]ny step that renders the analysis unreliable under the Daubert factors renders the expert's testimony inadmissible.” McClain, 401 F. 3d at 1245 (quotation and emphasis omitted). 5 “Reliability” of expert testimony is determined by a “two-step inquiry” calculated to decide (1) whether the expert is qualified to express an expert opinion, and (2) whether the expert opinion is itself reliable. Bowersfield v. Suzuki Motor Corp., 151 F. Supp. 2d 625, 628 (E.D. Pa. 2001); citing In re TMI Litig., 193 F.3d 613, 663 (3d Cir. 1999). These factors, however, are only a starting point for the reliability analysis; the Eleventh Circuit and other courts have also considered “reliance on anecdotal evidence” – such as a review of reports of others without performing their own testing. Allison v. McGhan Med. Corp., 184 F.3d 1300, 1312 (11th Cir.1999). This Court’s “gatekeeping” responsibility under Daubert cannot be overstated. United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004). As the Supreme Court framed it in Kumho Tire, “the objective of that requirement is to ensure the reliability and relevancy of expert testimony. It is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999). The goal of the Daubert standard is to ensure expert testimony is relevant and reliable. Daubert, 509 U.S. 579 (1993). Whether an expert’s testimony is reliable depends on the facts and circumstances of the particular case. Id. at 158. The party offering the expert testimony bears the burden of establishing reliability and helpfulness. Frazier, 387 F.3d at 1260. 6 Expert testimony “can be both powerful and quite misleading because of the difficulty in evaluating it.” Daubert, 509 U.S. at 59. “Indeed, no other kind of witness is free to opine about a complicated matter without any firsthand knowledge of the facts in the case, and based upon otherwise inadmissible hearsay if the facts or data are ‘of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject.’” Frazier, 387 F.3d at 1260 (citing Fed. R. Evid. 702). An expert opinion should be excluded if it is not “helpful” to the jury. Id. at 1262. Due to the powerful and potentially misleading effect of expert evidence, sometimes expert opinions that otherwise meet the admissibility requirements may still be excluded by applying Rule 403.” Id. at 1263 (citation omitted). “Indeed, the judge in weighing possible prejudice against probative force under Rule 403 . . . exercises more control over experts than over lay witnesses.” Id. Although “an expert may be qualified by experience,” it does not follow “that experience, standing alone, is a sufficient foundation rendering reliable any conceivable opinion the expert may express.” See, Baan v. Columbia County, 180 So. 3d 1127, 1133 (Fla. 1st DCA 2015) (emphasis added); see also Frazier, 387 F.3d at 1261 (11th Cir. 2004) (“If admissibility could be established merely by the ipse dixit of an admittedly qualified expert, the reliability prong would be, for all practical purposes, subsumed by the qualification prong.”). 7 B. Motion in Limine Standard A motion in limine is proper to prevent the introduction of inadmissible, irrelevant, and unfairly prejudicial evidence. Fischman v. Suen, 672 So. 2d 644 (Fla. 4th DCA 1996); Dailey v. Multicon Development, Inc., 417 So. 2d 1106 (Fla. 4th DCA 1982); Adkins v. Seaboard Coast Line Railroad Co., 351 So. 2d 1088 (Fla. 2d DCA 1977). Despite logically relevant evidence being admissible under section 90.402, Florida Statutes, evidence is inadmissible under section 90.403, Florida Statutes, when the probative value is "substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or needless presentation of cumulative evidence." See § 90.403, Fla. Stat.; Thigpen v. United Parcel Services, Inc., 990 So. 2d 639 (Fla. 4th DCA 2008). A Motion in Limine is especially appropriate to preclude inadmissible evidence which will be highly prejudicial to the moving party and, if referred to in a question, would unlikely be disregarded by the jury despite an instruction by the court to do so. Fischman v. Suen, 672 So. 2d 644, 645 (Fla. 4th DCA 1996). The test for unfair prejudice is set forth in David v. Brown, 774 So. 2d 775 (Fla. 4th DCA 2001). The Court should consider: (1) the need for the evidence; (2) the tendency of the evidence to suggest an improper basis to the jury for resolving the matter, e.g., an emotional basis; (3) the chain of inference necessary to establish the material fact; and (4) the effectiveness of a limiting instruction. Id. 8 Motions in Limine serve other purposes as well, such as: shortening the trial by simplifying the issues; reducing the possibility of mistrials; permitting more careful consideration of evidentiary issues than would take place during the heat of trial; minimizing side-bar conferences and disruptions during trial; and enhancing the efficiency of trials and promotion of settlements by resolving potentially critical issues at the outset. Rosa v. Fla. Power & Light Co., 636 So. 2d 60, 61 (Fla. 2d DCA 1994). C. Duplicative and/or Cumulative Testimony “[S]ection 90.403, Florida Statutes (2019), allows for the exclusion of relevant evidence if the evidence's probative value is substantially outweighed by the needless presentation of cumulative evidence. §90.403, Fla. Stat. (2019).” Lepera v. State, 328 So. 3d 1136, 1141 (Fla. 5th DCA 2021) (emphasis added). This is, in part, because section 90.403 “requires a trial court to exercise reasonable control over the presentation of evidence to avoid wasting time.” Id. “Courts should exercise their discretion to avoid the needless waste of time through unnecessary presentation of cumulative evidence.” Gutierrez v. Vargas, 239 So. 3d 615, 625 (Fla. 2018). “The real issue facing the trial court was whether a witness will offer testimony that unnecessarily duplicates the testimony of another witness, in which case the trial court has discretion to limit or exclude it.” Delgardo v. Allstate Ins. Co., 731 So. 2d 11, 16 (Fla. 4th DCA 1999). 9 IV. ARGUMENT A. Newkirk’s Testimony as to the Sufficiency of Marcon’s Methodology, Extrapolation, and Repair is Inadmissible Newkirk’s testimony as to Marcon’s testing methodology and extrapolation method is not based on any specialized knowledge, data, principles, or methodology and does not provide analysis regarding the same as applied to the facts of the present case. See generally, Ex. A-1 and A-2. Newkirk testified thoroughly regarding his work and educational history and failed to note a history of specialization in statistics. Id. at 14:19-28:8 Newkirk provides no basis for his authority on statistics in testing beyond his own assertion that he is an expert in statistics based on his educational history – having taken undergraduate and graduate-level statistics classes and his experience. Ex. A-1, p. 133:10-134:4. Further, Newkirk did not defer to the expert statistician also retained by ROH and offering opinions on the same subject matter. See generally, Exs. A-1 and A-2. Newkirk also testified several times that Alta did not perform its own statistical analysis for testing for this Community and generally does not use a statistician when Alta does create a testing protocol (which it did not do for this Community). Id. at pp. 99:5-100:1. In his criticism of Marcon’s methodology, Newkirk specifically testified that: “While Alta may not remark as to the inadequacy of the testing for extrapolation in the narrative for each item, we generally object as to the statistical significance of the testing with regard to every alleged defect. More testing is required to establish 10 a statistically significant data pool from which a reasonable inference can be drawn regarding the likelihood that any of the alleged defects are common throughout all of the buildings.” Ex. A-1, pp. 84:22-85:6 (emphasis added). While Newkirk is critical of the testing methodology and extrapolation performed by Marcon for the Community, Newkirk admitted that he did not provide a statistical analysis that he required of Marcon specific to the Community. Id., at 87:6-8; 93:1-7; 99:5-16; 132:17-133:8. Newkirk is critical of Marcon’s testing methodology, conclusion regarding the systemic nature of the defects in the Community, and its repair protocol. However, Newkirk (i) did not perform his own destructive testing; (ii) did not request interior access to units; (iii) did not perform or cause to be performed, any window testing; and (iv) did not provide specific opinions as to the appropriate total numbers of items/components of the buildings he believes should have been tested. Ex. A-1, pp. 87:6-8; 93:1-7; 99:5-16; 132:17-133:8; 134:6-9. As such, Newkirk failed to provide any alternative opinion based on specialized knowledge, or sufficient facts or data, which would help the jury understand the evidence or determine a fact at issue. Newkirk’s opinion is nothing more than a circular argument that Marcon’s testing is insufficient because it is insufficient and does not provide any substantive alternative testing analysis specific to the Community or requisite number of cuts 11 for the testing to be extrapolatable at the Community. Accordingly, Newkirk’s opinions are not based on principles or methods that can reliably be applied to the facts of the case. B. Newkirk’s Opinions regarding Statistics and Methodology are Duplicative While Newkirk did not directly testify that his opinions regarding extrapolation and testing methodology are the same as those proffered by Baldwin, the effect of his proffered testimony is the same as if he did. See generally Exs. A- 1, A-2, and B. Newkirk and Baldwin’s testimony and opinions regarding testing methodology and extrapolation are duplicative and cumulative opinions that merely reiterate the same opinions over again (i.e., that the testing was insufficient, specifically as it relates to extrapolation of the results across the Community). See generally Exs. A-1, A-2, and B. At trial, Baldwin will already be offering the exact same opinions based upon the exact same evidence. (Doc. No. 420). Accordingly, additional testimony from other retained experts reiterating the same testimony and opinions is plainly duplicative and cumulative. Moreover, all of the experts are relying upon the same evidence; to-wit, the destructive testing, and the records produced by the parties. Not only are these opinions duplicative and cumulative, but they also pose the very real threat of substantial prejudice to the Association. Repetition does not equal truth; however, hearing the testimony from different individuals saying the exact 12 same thing (i.e., that Plaintiff’s expert is wrong) over and over again would only serve to prejudice the Plaintiff and deceive the jury into thinking that it must be true if so many (paid) different people are saying it. The Court should therefore exercise control over, and limit, the presentation of expert testimony to non-duplicative, non- cumulative opinions. V. CONCLUSION As set forth above, Newkirk’s expert opinions should be excluded or limited in the instant matter because his testimony: (i) will not help the trier of fact to understand the evidence or to determine a fact in issue; (ii) is not based on sufficient facts or data; (iii) is not the product of reliable principles and methods; and (iv) fails to establish that he reliably applied reliable principles or methods to the facts of the case. This, in and of itself, is insufficient to provide reliable expert opinion testimony. Further, Newkirk’s testimony regarding statistics and extrapolation is duplicative and cumulative of ROH’s statistician expert who was disclosed to opine on those same topics. Therefore, Newkirk’s expert testimony must be excluded or otherwise limited to prevent testimony regarding criticisms of Marcon’s testing methodology, extrapolation, and the repair protocol as it relates to statistical analysis within testing at the Community. WHEREFORE, the Plaintiff respectfully requests this Court grant Plaintiff’s Daubert Motion and/or Motion in Limine regarding cumulative and duplicative 13 expert testimony and/or Brett Newkirk’s testimony regarding statistics and grant any further relief this Court deems necessary. CERTIFICATE OF GOOD FAITH CONFERRAL The undersigned counsel for the Plaintiff hereby certifies that she conferred with Fiona Foley, Esq., counsel for the ROH, on February 1, 2024, regarding the relief sought herein but that the parties were unable to reach an agreement. DATED: This 5th day of February, 2024. BALL JANIK LLP By: /s/ Kasey L. Joyce__ Phillip Joseph, FL Bar No. 1000368 Evan Small, FL Bar No. 57306 Jeffrey Widelitz FL Bar No. 105642 Christopher Tribbey, FL Bar No. 1003114 Kasey L. Joyce, FL Bar No. 1024705 201 E Pine Street, Suite 600 Orlando, FL 32801 Telephone: (407) 455-5664 Facsimile: (407) 902-2105 pjoseph@balljanik.com esmall@balljanik.com jwidelitz@balljanik.com ctribbey@balljanik.com kjoyce@balljanik.com dtodd@balljanik.com cbetancourt@balljanik.com bburton@balljanik.com orlandodocket@balljanik.com Counsel for Plaintiff Villas at Emerald Lake Homeowners Association, Inc. 14 CERTIFICATE OF SERVICE I certify that a true copy of the foregoing has been filed via the Florida Courts E-Filing Portal on February 5, 2024. /s/ Kasey L. Joyce Kasey L. Joyce, Esq. SERVICE LIST LUIS PRATS THAMIR A.R. KADDOURI, JR. LANNIE D. HOUGH, JR. PENELOPE T. ROWLETT JAMES MICHAEL WALLS BETH ANN TOBEY ROBIN H. LEAVENGOOD Law Office of Thamir A.R. Kaddouri, Carlton Fields, P.A. Jr. P.A. 4221 W. Boy Scout Boulevard 3220 West Cypress Street Tampa, FL 33607-5780 Tampa, FL 33607 (813) 223-7000 (813) 879-5752 lprats@carltonfields.com thamir.kaddouri@tampalaw.org lhough@carltonfields.com service@tampalaw.org mwalls@carltonfields.com beth.tobey@tampalaw.org rleavengood@carltonfields.com mramos@carltonfields.com Counsel for Defendant, Imperial nbonilla@carltonfields.com Building Corporation ejohnson@carltonfields.com krick@carltonfields.com Counsel for Defendant, Royal Oak Homes, LLC PAUL SIDNEY ELLIOTT PETER J. KAPSALES P.O. Box 274204 MARGARET M. EFTA Tampa, FL 33688-4204 Milne Law Group, P.A. (813) 265-1314 301 E. Pine Street, Suite 525 pse@psejd.com Orlando, FL 32801 (321) 558-7700 pkapsales@milnelawgroup.com 15 Counsel for Defendant, Hugh mefta@milnelawgroup.com MacDonald Construction, Inc. (HMC) eservice@milnelawgroup.com DENISE M. ANDERSON Counsel for Defendant, Weathermaster ASHLEY M. MATTINGLY Building Products, Inc. Butler Weihmuller Katz Craig LLP 400 N. Ashley Drive, Suite 2300 Tampa, FL 33602 (813) 281-1900 danderson@butler.legal amattingly@butler.legal krieck@butler.legal rjorge@butler.legal Co-Counsel for Defendant, Hugh MacDonald Construction, Inc. DENISE M. ANDERSON ANDREW E. HOLWAY DAVID A. MERCER J. ROCCO CAFARO Butler Weihmuller Katz Craig, LLP Hill Ward Henderson 400 N. Ashley Drive, Suite 2300 101 E. Kennedy Blvd., Suite 3700 Tampa, FL 33602 Tampa, FL 33602 danderson@butler.legal (813) 221-3900 dmercer@butler.legal andrew.holway@hwhlaw.com krieck@butler.legal derrick.calandra@hwhlaw.com rjorge@butler.legal jill.kuty@hwhlaw.com tbarry@butler.legal kathy.wernsing@hwhlaw.com rocco.cafaro@hwhlaw.com Counsel for Defendant, Don King’s tracy.coale@hwhlaw.com Concrete, Inc. Counsel for Defendant/Cross Defendant, Weintraub Inspections & Forensics, Inc. n/k/a Weintraub Engineering and Inspections, Inc. JAYNE ANN PITTMAN BRUCE R. CALDERON NATALIE C. FISCHER ALICIA Z. GROSS Conroy Simberg BARRI A. REISCH Two South Orange Avenue, Suite 300 Milber Makris Plousadis & Seiden, Orlando, FL 32801 LLP 16 (407) 649-9797 1900 NW Corporate Blvd. eserviceorl@conroysimberg.com East Tower, Suite 440 jpittman@conroysimberg.com Boca Raton, FL 33431 mmaitland@conroysimberg.com (561) 994-7310 nfischer@conroysimberg.com bcalderon@milbermakris.com azgross@milbermakris.com Counsel for Defendant, Advanced breisch@milbermakris.com Wrapping and Concrete Solutions of kmcdowell@milbermakris.com Central Florida, Inc. sskowronski@milbermakris.com Counsel for Defendant/Cross- Defendant, Brown + Company Architecture, Inc. JENNIFER MILLER BROOKS S. SCOTT ROSS KIRA TSIRING Groelle & Salmon, P.A. Hamilton, Miller & Birthisel, LLP 1715 N. Westshore Blvd., Suite 320 150 Southeast Second Avenue, Suite Tampa, FL 33607 1200 (813) 849-7200 Miami, FL 33131-2332 gstcourtdocs@gspalaw.com (305) 379-3686 sross@gspalaw.com jmiller@hamiltonmillerlaw.com cebanks@gspalaw.com ktsiring@hamiltonmillerlaw.com mcoleman@gspalaw.com jcasaccio@hamiltonmillerlaw.com Counsel for Third-Party Defendant, Counsel for Defendant/Cross- Helberg Enterprises, LLC Defendant, TGK Stucco, Inc. VICKI LAMBERT ANDREW T. MARSHALL ALEC MASSON SARA W. MAPES Luks, Santaniello, Petrillo & Cohen Hamilton, Price & Marshall, P.A. 201 S. Orange Avenue, Suite 400 2400 Manatee Ave. W. Orlando, FL 32801 Bradenton, FL 34205 (407) 540-9170 (941) 748-0550 luksorl-pleadings@ls-law.com andrew@hamiltonpricelaw.com amason@insurancedefense.net sara@hamiltonpricelaw.com jpestonit@insurancedefense.net nancy@hamiltonpricelaw.com kelsey@hamiltonpricelaw.com Counsel for Third-Party Defendant, atmservice@hamiltonpricelaw.com Casey Hawkins Glass, Inc. 17 PHILLIP S. HOWELL Counsel for Third-Party Defendant, BRENDEN C. COLLINS T&M Construction of Sanford, Inc. Galloway, Johnson, Tompkins, Burr & Smith, P.L.C. WILLIAM M. WOODS 400 N. Ashley Dr., Suite 1000 JOSEPH M. CLINE Tampa, FL 33602 100 S. Missouri Avenue, Suite 201 (813) 977-1200 Clearwater, Fl 33756 tampaservice@gallowaylawfirm.com (727) 799-1229, Ext. 4072 phowell@gallowaylawfirm.com wwoods@willwoodslaw.com bcollinsl@gallowaylawfirm.com josephc@willwoodslaw.com marital@willwoodslaw.com Counsel for Third-Party Defendant, pleadings@willwoodslaw.com Casey Hawkins Glass, Inc. Counsel for Third-Party Defendants, T & M Construction of Sanford, Inc. and All Glass Installation Corp. JOSEPH L. ZOLLNER COLE J. COPERTINO Law Office of Christopher Norris Wright, Fulford, Moorhead & Brown, PO Box 7217 P.A. London, KY 40742 505 Maitland Avenue, Suite 1000 (904) 346-5422 Altamonte Springs, FL 32701 floridacdlegalmail@libertymutual.com (407) 425-0234 joseph.zollner@libertymutual.com ccopertino@wfmblaw.com cbraungart@wfmblaw.com Counsel for Third-Party Defendant, lwilliams@wfmblaw.com Lios Concrete Corp Counsel for Third-Party Defendant, Well Hung Windows & Doors MONAL O. ZIPPER CHESLEY G. MOODY, JR. JENNIFE SHIPPOLE MAI M. LE Law Office of Jennifer L. Shippole Moody & Graf, P.A. 14050 NW 14th Street, Suite 180 1101 N. Lake Destiny Road, Suite 200 Sunrise, FL 33323 Maitland, FL 32751 (954) 417-3066 Ext. 4645 (407) 755-6900 jlspleadings@fednat.com cmoody@moodygraf.com mzipper@fednat.com mle@moodygraf.com jshippole@fednat.com kbraund@moodygraf.com iperera@moodygraf.com Counsel for Third-Party Defendant, Atlantic Concrete Systems, Inc. 18 Counsel for Premier Plastering of Central Florida, Inc. Withdrew for Premier Plastering only 3.4.2022 & Defendant/Cross-Defendant, Wolf’s Irrigation & Landscaping, Inc. JERRILYNN HADLEY WAYNE M. ALDER TODD M. LADAUCEUR Fisher Broyles, LLP Galloway, Johnson, Tompkins, Burr 7668 N. W. 125th Way and Smith, PLC Pompano Beach, FL 33076 118 E. Garden Street (954) 603-6174 Pensacola, FL 32502 wayne.alder@fisherbroyles.com (850) 436-7000 wmalder@bellsouthnet.com tmlconstruction@gallowaylawfirm.com Counsel for Third-Party Defendant, Counsel for Third-Party Defendant E.R.O. Construction, Inc. and Well Hobbit Windows, LLC Done Windows, Inc. SHAUN M. QUINN JACKELINE RODRIGUEZ Hamilton, Miller & Birthisel, LLP 150 S.E. 2nd Avenue, Suite 1200 Miami, FL 33131 (305) 379-3686 squinn@hamiltonmillerlaw.com jrodriguez@hamiltonmiller.com Counsel for Defendant/ Cross- Defendant, Premier Plastering of Central Florida, Inc. UNREPRESENTED PARTIES Expert Painting & Pressure Washing, Inc. c/o Richard C. Bates, Registered Agent 3631 Late Morning Cir. Kissimmee, FL 34744 19 EXHIBIT “A-1” In The Matter Of: Villas at Emerald Lake Homeowners Association, Inc. v. Royal Oak Homes, LLC et al. Brett Newkirk April 18, 2023 Legal Realtime Reporting 622 E. Washington Street Suite 200 Orlando, Florida 32801 Original File Brett D. Newkirk_P.E..txt Min-U-Script® with Word Index 1 1 IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN 2 AND FOR OSCEOLA COUNTY, FLORIDA 3 CASE NO.: 2020-CA-002942 4 VILLAS AT EMERALD LAKE HOMEOWNERS ASSOCIATION, INC., a Florida not for profit 5 corporation, 6 Plaintiff, 7 vs. 8 ROYAL OAK HOMES, LLC, a Florida limited liability company; ADVANCED WRAPPING AND CONCRETE SOLUTIONS OF 9 CENTRAL FLORIDA, INC., a Florida corporation; DON KING's CONCRETE, INC., a Florida corporation; HUGH MACDONALD 10 CONSTRUCTION, INC., a Florida corporation; IMPERIAL BUILDING CORPORATION, a Florida corporation; PREMIER 11 PLASTERING OF CENTRAL FLORIDA, INC. N/K/A TGK STUCCO, INC., a Florida corporation; WEATHERMASTER BUILDING 12 PRODUCTS, INC., a Florida corporation; WEINTRAUB INSPECTIONS & FORENSICS, INC. N/K/A WEINTRAUB 13 ENGINEERING AND INSPECTIONS, INC., a Florida corporation; THE DIMILLO GROUP, LLC, a Florida limited 14 liability company; WOLF'S IRRIGATION & LANDSCAPING, INC., a Florida corporation; SUMMERPARK HOMES, INC., a 15 Florida corporation; BROWN + COMPANY ARCHITECTURE, INC., a Florida corporation; EXPERT PAINTING & PRESSURE 16 WASHING, INC., a Florida Profit Corporation, 17 Defendants. 18 (Continued on next page.) 19 * * * * * * * * * * * * * * * * * * * * * * * * * * * * 20 DEPOSITION OF: BRETT D. NEWKIRK, P.E. 21 DATE TAKEN: April 18, 2023 22 BEGINNING TIME: 9:37 a.m. ENDING TIME: 5:01 p.m. 23 PLACE: Via Remote 24 REPORTED BY: YNDIRA MEDINA, CCR, FPR 25 and Notary Public Legal Realtime Reporting 2 1 ROYAL OAKS HOME, LLC, 2 Cross-Claimant, 3 vs. 4 ADVANCED WRAPPING AND CONCRETE SOLUTIONS OF CENTRAL FLORIDA, INC., a Florida corporation; DON KING'S 5 CONCRETE, INC., a Florida corporation; HUGH MACDONALD CONSTRUCTION, INC., a Florida corporation; IMPERIAL 6 BUILDING CORPORATION, a Florida corporation; PREMIER PLASTERING OF CENTRAL FLORIDA, INC. N/K/A TGK STUCCO, 7 INC., a Florida corporation; WEATHERMASTER BUILDING PRODUCTS, INC., a Florida corporation; WEINTRAUB 8 INSPECTIONS & FORENSICS, INC. N/K/A WEINTRAUB ENGINEERING AND INSPECTIONS, INC., WOLF'S IRRIGATION & 9 LANDSCAPING, INC., a Florida corporation; BROWN + COMPANY ARCHITECTURE, INC., a Florida corporation, 10 Cross-Defendants. 11 * * * * * * * * * * * * * * * * * * * * * * * * * * * * 12 WEATHERMASTER BUILDING PRODUCTS, INC., a 13 Florida corporation, 14 Third-Party Plaintiff, 15 vs. 16 ALL GLASS INSTALLATION CORP., a Florida corporation; CASEY HAWKINS GLASS, INC., a Florida corporation; 17 DEAN NESBIT, LLC, a Florida limited liability company; HELBERG ENTERPRISES, LLC, a Florida limited liability 18 company; HOBBIT WINDOWS, LLC, a Florida limited liability; T&M CONSTRUCTION OF SANFORD, INC., a Florida 19 corporation; WELL DONE WINDOWS, INC., a Florida corporation; and WELL HUNG WINDOWS & DOORS, LLC, a 20 Florida limited liability company, 21 Third-Party Defendants. 22 (Continued on next page.) 23 * * * * * * * * * * * * * * * * * * * * * * * * * * * * 24 25 Legal Realtime Reporting 3 1 DON KING'S CONCRETE, INC., a Florida corporation, 2 Third-Party Plaintiff, 3 vs. 4 E.R.O. CONSTRUCTION, INC., a Florida corporation; LIOS CONCRETE CORP., a Florida corporation; and ATLANTIC 5 CONCRETE SYSTEMS, INC., a Florida corporation, 6 Third-Party Defendants. 7 * * * * * * * * * * * * * * * * * * * * * * * * * * * * 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Legal Realtime Reporting 4 1 APPEARANCES: 2 KASEY L. JOYCE, ESQUIRE Ball Janik, LLP 3 201 E. Pine Street Suite 600 4 Orlando, Florida 32801 kjoyce@balljanik.com 5 Appearing remotely on behalf of the Plaintiff/ 6 Villas at Emerald Lake Homeowners Association, Inc. 7 JAMES MICHAEL WALLS, ESQUIRE 8 ROBIN H. LEAVENGOOD, ESQUIRE Carlton Fields, P.A. 9 4221 W. Boy Scout Boulevard Tampa, Florida 33607 10 mwalls@carltonfields.com rleavengood@carltonfields.com 11 Appearing remotely on behalf of the Defendant/ 12 Royal Oak Homes, LLC. 13 ASHLEY M. MATTINGLY, ESQUIRE 14 Butler Weihmuller Katz Craig, LLP 400 N. Ashley Drive 15 Suite 2300 Tampa, Florida 33602 16 amattingly@butler.legal 17 Appearing remotely on behalf of the Defendant/ Hugh MacDonald Construction, Inc. 18 19 SHAWN M. TRAUTMAN, ESQUIRE Milne Law Group, P.A. 20 301 E. Pine Street Suite 525 21 Orlando, Florida 32801 strautman@milnelawgroup.com 22 Appearing remotely on behalf of the Defendant/ 23 Weathermaster Building Products, Inc. 24 25 Legal Realtime Reporting 5 1 BRUCE R. CALDERON, ESQUIRE Milber Makris Plousadis & Seiden, LLP 2 1900 NW Corporate Boulevard East Tower, Suite 440 3 Boca Raton, Florida 33431 bcalderon@milbermakris.com 4 Appearing remotely on behalf of the 5 Defendant/Cross-Defendant/ Brown + Company Architecture, Inc. 6 7 KIRA TSIRING, ESQUIRE Hamilton, Miller & Birthisel, LLP 8 150 Southeast Second Avenue Suite 1200 9 Miami, Florida 33131 ktsiring@hamiltonmillerlaw.com 10 Appearing remotely on behalf of the 11 Defendant/Cross-Defendant/ TGK Stucco, Inc. 12 13 COLE J. COPERTINO, ESQUIRE MARI L. MINKS, ESQUIRE 14 Wright, Fulford, Moorhead & Brown, P.A. 505 Maitland Avenue 15 Suite 1000 Altamonte Springs, Florida 32701 16 ccopertino@wfmblaw.com mminks@wfmblaw.com 17 Appearing remotely on behalf of the Third-Party 18 Defendant/ Well Hung Windows & Doors. 19 20 S. SCOTT ROSS, ESQUIRE Groelle & Salmon, P.A. 21 1715 N. Westshore Boulevard Suite 320 22 Tampa, Florida 33607 sross@gspalaw.com 23 Appearing remotely on behalf of the Third-Party 24 Defendant/ Helberg Enterprises, LLC. 25 Legal Realtime Reporting 6 1 NATALIE C. FISCHER, ESQUIRE Conroy Simberg 2 Two South Orange Avenue Suite 300 3 Orlando, Florida 32801 nfischer@conroysimberg.com 4 Appearing remotely on behalf of the Defendant/ 5 Advanced Wrapping and Concrete Solutions of Central Florida, Inc. 6 7 ANDREW E. HOLWAY, ESQUIRE Hill Ward Henderson 8 101 E. Kennedy Boulevard Suite 3700 9 Tampa, Florida 33602 andrew.holway@hwhlaw.com 10 Appearing remotely on behalf of the 11 Defendant/Cross-Defendant/ Weintraub Inspections & Forensics, Inc. n/k/a Weintraub 12 Engineering and Inspections, Inc. 13 CHRISTOPHER NORRIS, ESQUIRE 14 Law Office of Christopher Norris P.O. Box 7217 15 London, Kentucky 40742 floridacdlegalmail@libertymutual.com 16 Appearing remotely on behalf of the Third-Party 17 Defendant/ Lios Concrete Corp. 18 19 YARITSSA PLASENCIA, ESQUIRE Law Office of Thamir A.R. Kaddouri, Jr., P.A. 20 3220 West Cypress Street Tampa, Florida 33607 21 yaritssa.plasencia@tampalaw.org 22 Appearing remotely on behalf of the Defendant/ Imperial Building Corporation. 23 24 25 Legal Realtime Reporting 7 1 BRENDEN C. COLLINS, ESQUIRE Galloway, Johnson, Tompkins, Burr & Smith, PLC 2 400 N. Ashley Drive Suite 1000 3 Tampa, Florida 33602 bcollins@gallowaylawfirm.com 4 Appearing remotely on behalf of the Third-Party 5 Defendant/ Casey Hawkins Glass, Inc. 6 7 CHRISTOPHER K. RITCHIE, ESQUIRE Galloway, Johnson, Tompkins, Burr & Smith, PLC 8 118 E. Garden Street Pensacola, Florida 32502 9 critchie@gjtbs.com 10 Appearing remotely on behalf of the Third-Party Defendant/ 11 Hobbit Windows, LLC. 12 JOSEPH M. CLINE, ESQUIRE 13 The Law Offices of William Woods 100 S. Missouri Avenue 14 Suite 201 Clearwater, Florida 33756 15 josephc@willwoodslaw.com 16 Appearing remotely on behalf of the Third-Party Defendants/ 17 T&M Construction of Sanford, Inc. and All Glass Installation Corp. 18 19 - - - - - 20 21 22 23 24 25 Legal Realtime Reporting 8 1 C O N T E N T S 2 TESTIMONY OF BRETT D. NEWKIRK, P.E. 3 Direct Examination by Ms. Joyce 09 4 CERTIFICATE OF REPORTER 175 5 ERRATA SHEET 176 6 7 - - - - - 8 E X H I B I T S 9 Exhibit 129 Amended Notice of Taking Deposition 12 Duces Tecum 10 Exhibit 130 Curriculum Vitae 13 11 Exhibit 131 Alta Engineering Company Report 48 12 Exhibit 132 Field Notes 65 13 14 (Exhibits attached to transcript.) 15 - - - - - 16 17 S T I P U L A T I O N S 18 It is hereby agreed and so stipulated by and 19 between the parties hereto, through their respective 20 counsel, that the reading and signing of the transcript 21 is expressly reserved. 22 23 - - - - - 24 25 Legal Realtime Reporting 9 1 P R O C E E D I N G S 2 ********** 3 THE REPORTER: Raise your right hand, please. 4 Do you swear or affirm that the testimony you shall 5 give will be the truth, the whole truth, and 6 nothing but the truth, so help you God? 7 THE WITNESS: I do. 8 BRETT D. NEWKIRK, P.E., 9 having first been duly sworn or affirmed, testified as 10 follows: 11 DIRECT EXAMINATION BY MS. JOYCE: 12 Q Good morning, Mr. Newkirk. My name is 13 Kasey Joyce. I represent the Villas at Emerald Lake 14 Homeowners Association, Incorporated. If I refer to 15 that as just the association, will you understand what 16 I'm referring to? 17 A I will. 18 Q Okay. And we're here today regarding the 19 Villas at Emerald Lake townhomes project in Osceola 20 County, Florida. If I refer to the Villas at Emerald 21 Lake townhome community as either Villas at Emerald 22 Lake, the community, or the project, will you know what 23 I'm referring to? 24 A I will. 25 Q Okay. And you're here today to testify as the Legal Realtime Reporting 10 1 expert on behalf of Royal Oak Homes, LLC. 2 Is that correct? 3 A Yes. 4 Q And if I refer to them as Royal Oak, will you 5 know what I'm referring to? 6 THE WITNESS: Hey, Mike, you're not on mute, 7 if you want to be. But, yes, I'll understand. 8 MR. WALLS: My IT guy is telling me I'm back 9 on, so I'm going to go to my computer now and see 10 if that works. 11 MS. JOYCE: All right. If you want, we can go 12 off the record for, like, 15 minutes so you can get 13 resettled, if that works for you. 14 MR. WALLS: I would say five minutes. He's 15 telling me I'm good. So I'll just walk over to my 16 office and it should be running. Sorry about this. 17 I really apologize. 18 MS. JOYCE: That's fine. Let's try to start 19 at 9:45, if that works for you. 20 THE WITNESS: Okay. 21 (Whereupon, a brief recess was held.) 22 MS. JOYCE: Madam Court Reporter, did you get 23 my last two questions? 24 THE REPORTER: Yes, I did. The last two 25 questions: "Question: Okay. And you're here Legal Realtime Reporting 11 1 today to testify as the expert on behalf of Royal 2 Oak Homes, LLC. Is that correct? Answer: Yes. 3 Question: And if I refer to them as Royal Oak, 4 will you know what I'm referring to? Answer: Hey, 5 Mike, you're not on mute, if you want to be. But, 6 yes, I'll understand." 7 BY MS. JOYCE: 8 Q So I think based on the answer she read back, 9 I'm just going to ask this one more time. If I refer to 10 Royal Oak Homes, LLC as Royal Oak, will you know what 11 I'm referring to? 12 A I will. 13 Q So just to get started, can we get your full 14 name and address? 15 A Brett Douglas Newkirk. Address is 16 11329 Distribution Avenue West, Jacksonville, Florida 17 32256. 18 Q And is that a residential address or a 19 business address? 20 A Business. 21 Q Okay. And have you been deposed before? 22 A I have. 23 Q How many times? 24 A I'm not sure, but well over a hundred. 25 Q Okay. So can we assume that you know the Legal Realtime Reporting 12 1 ground rules for depositions? 2 A Yes. 3 Q Okay. I'm going to just list out a couple, 4 just for the sake of the record. If you don't 5 understand my question or if it's not clear, please let 6 me know; otherwise, if you answer, I will assume that 7 you understood the question. 8 Is that fair? 9 A It is. 10 Q Okay. And then obviously, breaks are fine. 11 All I ask is that if I have an outstanding question and 12 you need to take a break, can you answer the question 13 before you take the break? 14 A I can. 15 Q All right. I'm going to pull up what is going 16 to be Exhibit 129. Have you seen -- sorry, I'm going to 17 scroll down a little bit. 18 Have you seen this document before? 19 A Yes, I have. 20 Q And what is this document? 21 A I believe it's the notice for my deposition. 22 Q All right. I'm going to scroll down to the 23 bottom here. 24 Have you reviewed the Schedule A? 25 A Yes. Legal Realtime Reporting 13 1 Q And did you produce all of the documents that 2 were requested in the Schedule A, in your job file? 3 A If you don't mind stopping so I can read it, 4 please. 5 Q Oops, sorry. 6 A I do not -- I did not produce a copy of 7 Number 6. 8 Q Okay. 9 A I did not provide copies of any and all 10 transcripts for