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Filing # 191288633 E-Filed 02/05/2024 05:15:18 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 MOTION IN LIMINE
REGARDING CRITICISMS OF EXPERTS
Plaintiff Villas at Emerald Lake Homeowners Association, Inc., (the
“Association” or “Plaintiff”), by and through its undersigned counsel files this
Motion in Limine Regarding Criticisms of Experts (“Motion”) against Defendant
Royal Oak Homes, LLC, (“ROH” or “Defendant”) and further states:
RULING IN LIMINE SOUGHT
The Court should preclude any expert from offering opinions about (or
criticizing) other experts’ opinions/methodology, or the experts themselves, as such
is prejudicial and inadmissible; the place for expert impeachment is cross-
examination, not through competing experts attacking one another in testimony.
1
I. BACKGROUND
1. This action arises out of the defective construction of the Villas at
Emerald Lake townhome community comprised which was 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. Both of ROH’s experts have expressed opinions criticizing the opinions
and/or methodology of other experts (including the opinions and 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. See generally, Exhibits A-1, A-2, and B.
II. LEGAL 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
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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.
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).
III. ARGUMENT
“‘Experts may not comment on the credibility of other witnesses,’ or express
an opinion as to the validity of an opposing expert’s opinion.” State Farm Mut. Auto.
Ins. Co. v. Medina, 300 So. 3d 177, 182 (Fla. 4th DCA 2020). “Questions that seek
to elicit an opinion of the witness critical of the validity of the opinions by the
opposing party's expert are improper.” Caban v. State, 9 So. 3d 50, 53–54 (Fla. 5th
DCA 2009). “Dr. Plunkett can be questioned as to possible bias in testifying for the
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defense, or asked about contrary opinions in authoritative literature, but the place to
do so is on cross-examination of Dr. Plunkett, not through disparagement by
other experts.” Id. (emphasis added).
In Caban, the Fifth District Court of Appeal (“DCA”) held that it was
reversible error to permit testimony from the State’s experts that defense expert’s
“data was ‘soft’,” that their “opinion was not supported or substantiated by his data
and that Dr. Plunkett’s interpretation of his data is incorrect.” Caban, 9 So.3d at 52-
53. In Medina, the Fourth DCA held that “defense expert’s comments that a finding
in Plaintiff’s expert’s report was ‘clearly wrong’ undoubtedly violated the courts in
limine order.” Medina, 300 So. 3d 177, 182. Defense experts and witnesses may (if
otherwise admissible) offer their own opinions on the date, or facts, but what they
cannot do is say things like “Plaintiff’s expert Mr. Heaney is wrong”, “Mr. Martin’s
analysis is incomplete”, “Mr. Martin’s interpretation is incorrect”, etc.
Simply put, it is improper to allow experts to offer criticisms of other experts,
including their methodology and/or opinions. If the parties wish to attack an expert’s
methodology and/or opinions, the place to do so is either through a Daubert
challenge, or on cross-examination – “not through disparagement by other experts.”
Caban, 9 So. 3d 53-54.
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WHEREFORE, Plaintiff respectfully requests that this Court enter an Order
precluding experts from criticizing other experts, including their opinions and/or
methodology.
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.
Respectfully submitted,
BALL JANIK LLP
By: /s/ Kasey L. Joyce
Phillip E. Joseph, FL Bar No. 1000368
Evan J. Small, FL Bar No. 57306
Jeffrey A. Widelitz FL Bar No. 105642
Christopher S. 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
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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
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(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.
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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.
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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
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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
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Legal Realtime Reporting
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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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Legal Realtime Reporting
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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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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
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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.
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Legal Realtime Reporting
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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
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Legal Realtime Reporting
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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 depositions, Number 10.
11 Q Okay. But otherwise, your job file that has
12 been produced is your full and complete job file for
13 this project?
14 A I believe so.
15 Q All right. And then I'm going to also share
16 Exhibit 130 with you.
17 Have you seen this document before?
18 A Yes.
19 Q What is this document?
20 A My CV.
21 Q Is this the most current version of your CV?
22 A If you could please scroll to the last page,
23 I'll be able to tell.
24 Q And for the record, this is going to be
25 Exhibit 130.
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1 A This is not my most up-to-date CV. If you
2 wish, I could put my most up-to-date CV in the chat.
3 Q Yes, please. Are there any significant
4 differences between this CV and your most up-to-date CV?
5 A It would just be additional testimony history.
6 Q Okay.
7 A Okay. It should be in there now.
8 Q Thank you. Okay. Just for efficiency sake,
9 because you said the most current version of your CV
10 just adds additional testimony, is it okay if I just go
11 through this one? Does that work for you?
12 A Whatever you want to do.
13 Q Okay.
14 A It's up to you.
15 Q And I know that you've testified many times.
16 It's our first time meeting, so I would like to go
17 through your history a little bit, just so I can get an
18 understanding of what your background is.
19 So let's start with your education. It says
20 that you went to Florida State. When did you go to
21 Florida State?
22 A I graduated in 2000.
23 Q And what did you study there?
24 A Structural engineering.
25 Q And it says you got your master's. Where did
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1 you get your master's?
2 A University of Central Florida.
3 Q And what did you get your master's in?
4 A Civil engineering.
5 Q And when did you receive your master's?
6 A 2009.
7 Q Did you specialize in anything in your
8 master's, or was it just a general civil engineering
9 degree?
10 A I did. I specialize in structures.
11 Q What kind of structures?
12 A Can you ask a more specific question?
13 Q You said you specialize in structures. So did
14 you specialize in buildings, did you specialize in
15 bridges, civil engineering, flatwork?
16 A Well, flatwork wouldn't be the structure. So
17 a structure is pretty much anything that's built above
18 the ground. And so I wouldn't necessarily say I --
19 there was a specialty; so much as, just design elements
20 that would apply to any, you know, structure.
21 Q Okay. And it says that you have a lot of
22 professional registrations and certifications here.
23 Can you give me just a general run-through of what these
24 entail?
25 A Sure. The first two are professional
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1 engineering -- or first three are professional
2 engineering licenses. The fourth one is a mold assessor
3 license. The next one is a building code administrative
4 core accreditation, which is something the Florida
5 Building Code used to require for engineers who would
6 sign and seal construction drawings.
7 The next one is for the installation of
8 synthetic stucco for a manufacturer called Dryvit. Next
9 one is Dow Corning, where we would be a third-party
10 warranty inspector performing pull tests and sealant
11 observations when they would issue warranties. They
12 offer a special 20-year warranty on buildings, so they
13 require inspections to do that with -- warranty to do
14 that. The next one is certification for the
15 installation of windows and doors through AAMA, which is
16 the -- I guess the primary body, voluntary body that
17 governs the installation of windows and doors and
18 manufacturer of window products.
19 The next one is for the use of nuclear gauges.
20 And that's primarily for doing moisture surveys on flat
21 roofs. And then the last one is just a certification
22 for scaffolding.
23 Q Between your academic history and your
24 professional registrations and certifications, is there
25 anything not listed on either of these on your CV?
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1 A No. That should all be there.
2 Q And as far as your registrations and
3 certifications go, are all of these up to date? Do you
4 still hold all of these?
5 A Well, no, I don't. Like, for instance, the
6 nuclear gauge, I don't use that anymore. And some of
7 them really aren't date sensitive, but the -- the
8 licenses, the first four licenses are up to date. Those
9 are the ones that I maintain.
10 Q So your professional engineering licenses are
11 all still active?
12 A Yes.
13 Q Which of those certifications are no longer up
14 to date? You said the nuclear gauge one.
15 A Well, just -- I mean, I think that they're not
16 really date sensitive. Like the building code
17 administrative core, that's not something that's
18 required anymore. The Dryvit certification is something
19 that I received based on training in a class. That was
20 in -- a finite period of time. I'm not aware that that
21 would be anything to maintain.
22 The same thing with the Dow Corning. The AAMA
23 certification, I think you can pay them to renew that.
24 I have not done that. And I told you about the nuclear
25 gauges. And then the OSHA scaffold, I think -- I don't
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1 believe that that is something that's to be maintained.
2 Q Okay. So then we've got your professional
3 memberships. Do you just want to run me through this
4 section?
5 A Sure. So in general, I'm a member of several
6 ASTM committees that relate to building envelope and
7 building structures, as well as the evaluation of
8 buildings. And then the second one is an organization
9 called the International Concrete Repair Institute that
10 focuses on repairing concrete.
11 Q And are you still active member -- an active
12 member of all of these different committees?
13 A Yes.
14 Q Are there any other professional memberships
15 that are not listed here?
16 A None that are active.
17 Q Right. So I'm going to go through each of
18 these committees and subcommittees. For the
19 ASTM Committee for D07 Wood, Subcommittee D07.05.02,
20 what do you need to do to become a member of that
21 committee?
22 A Pay ASTM $75.00.
23 Q Do you need to be an engineer?
24 A No.
25 Q Are there any specific qualifications that are
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1 required to be on any of these ASTM committees?
2 A Not that I know of.
3 Q All right. And related to these, are there
4 any publications that you have -- I know you have a
5 publication section, but as it relates to these
6 professional memberships, are there any publications
7 that you've published?
8 A I don't know what you mean, as it relates to
9 the memberships.
10 Q Okay. I'll just leave that one for the
11 publications section.
12 Have you given any presentations as a member
13 of any of these ASTM committees or the ICRI committee?
14 A No.
15 Q So then it says, [reading] Professional
16 Development [reading concluded]. What do each of these
17 things listed mean?
18 A What do they mean? Can you clarify your
19 question, please?
20 Q Yes. So you have, [reading] ASCE Wind Loads
21 for Buildings and Other Structures [reading concluded],
22 listed under professional development. Was that a class
23 that you took?
24 A These are all classes or seminars that were
25 basically taken to -- as continuing education for my --
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1 to maintain my licenses.
2 Q So these were all continuing education
3 courses?
4 A Yes.
5 Q How often do you have to take continuing
6 education courses?
7 A Every two years you have to renew your license
8 by taking -- most -- most of the PE requirements are
9 about 30 hours, that are taken over the course of two
10 years.
11 Q All right. So now we're at the publications
12 section. Have any of these publications informed your
13 opinion in the present case?
14 A I -- I wouldn't say any of them informed my
15 opinion, because I don't -- I guess I wrote the article,
16 so I'm not really using them to develop my opinions, but
17 there's probably some correlation between the subject
18 matter of those articles and some of the allegations and
19 my thoughts about those in the subject case.
20 Q And the most recent publication, it looks
21 like, was for 2018. Is that up to date?
22 A Yes.
23 Q Is there anything on this that's not included
24 in this list that you published?
25 A No.
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1 Q It looks like you've given a handful of
2 presentations. Are any of the presentations that you've
3 given related to the opinions that you're giving in this
4 case?
5 A Yes.
6 Q And which ones would those be?
7 A I would really say all of them probably have
8 some relationship to subject matters that are covered in
9 this case.
10 Q Have you provided these -- sorry, strike that.
11 Do you have copies of the PowerPoints from
12 these presentations?
13 A Well, I -- yes, I do for some; and then others
14 I would say, I do not.
15 Q Have you provided copies of these
16 presentations to counsel in this -- for this matter?
17 A No.
18 Q But these are related to the issues in this
19 matter, correct?
20 A There would be subject matter here that is
21 also similar subject matter to what's covered in -- for
22 instance, in my report.
23 Q All right. And then now we can move on to
24 your career summary. So from 1998 to 1999, it says you
25 were a construction crew foreman for
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1 Champion Construction. Can you talk me through what
2 your responsibilities were and what that job was?
3 A Essentially, I started out as just a laborer.
4 And by the second year, I supervised a group of guys;
5 but basically, we were just laborer that was executing
6 repairs and renovations to buildings. So primarily,
7 what we did is, we renovated retirement homes. And then
8 we also did some single-family home renovations. And
9 this was in Atlanta, so it was -- there was a lot of
10 basement remodeling or finishing.
11 Q Have you ever held a general contractor's
12 license?
13 A No.
14 Q So when you were working as a foreman, that
15 wasn't something that you needed to do as you were
16 working construction?
17 A No. You don't have to be licensed to work in
18 construction.
19 Q Right. But as -- as -- in the position that
20 you were in, as you were working in that construction
21 capacity, that was not something you ever sought after?
22 A Correct.
23 Q Okay. Let's move on to the next one. What
24 was your next job from 1999 to 2000?
25 A I worked for a civil engineering firm called
Legal
Preview
Filing # 191288633 E-Filed 02/05/2024 05:15:18 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 MOTION IN LIMINE REGARDING CRITICISMS OF EXPERTS Plaintiff Villas at Emerald Lake Homeowners Association, Inc., (the “Association” or “Plaintiff”), by and through its undersigned counsel files this Motion in Limine Regarding Criticisms of Experts (“Motion”) against Defendant Royal Oak Homes, LLC, (“ROH” or “Defendant”) and further states: RULING IN LIMINE SOUGHT The Court should preclude any expert from offering opinions about (or criticizing) other experts’ opinions/methodology, or the experts themselves, as such is prejudicial and inadmissible; the place for expert impeachment is cross- examination, not through competing experts attacking one another in testimony. 1 I. BACKGROUND 1. This action arises out of the defective construction of the Villas at Emerald Lake townhome community comprised which was 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). 2 5. Both of ROH’s experts have expressed opinions criticizing the opinions and/or methodology of other experts (including the opinions and 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. See generally, Exhibits A-1, A-2, and B. II. LEGAL 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 3 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. 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). III. ARGUMENT “‘Experts may not comment on the credibility of other witnesses,’ or express an opinion as to the validity of an opposing expert’s opinion.” State Farm Mut. Auto. Ins. Co. v. Medina, 300 So. 3d 177, 182 (Fla. 4th DCA 2020). “Questions that seek to elicit an opinion of the witness critical of the validity of the opinions by the opposing party's expert are improper.” Caban v. State, 9 So. 3d 50, 53–54 (Fla. 5th DCA 2009). “Dr. Plunkett can be questioned as to possible bias in testifying for the 4 defense, or asked about contrary opinions in authoritative literature, but the place to do so is on cross-examination of Dr. Plunkett, not through disparagement by other experts.” Id. (emphasis added). In Caban, the Fifth District Court of Appeal (“DCA”) held that it was reversible error to permit testimony from the State’s experts that defense expert’s “data was ‘soft’,” that their “opinion was not supported or substantiated by his data and that Dr. Plunkett’s interpretation of his data is incorrect.” Caban, 9 So.3d at 52- 53. In Medina, the Fourth DCA held that “defense expert’s comments that a finding in Plaintiff’s expert’s report was ‘clearly wrong’ undoubtedly violated the courts in limine order.” Medina, 300 So. 3d 177, 182. Defense experts and witnesses may (if otherwise admissible) offer their own opinions on the date, or facts, but what they cannot do is say things like “Plaintiff’s expert Mr. Heaney is wrong”, “Mr. Martin’s analysis is incomplete”, “Mr. Martin’s interpretation is incorrect”, etc. Simply put, it is improper to allow experts to offer criticisms of other experts, including their methodology and/or opinions. If the parties wish to attack an expert’s methodology and/or opinions, the place to do so is either through a Daubert challenge, or on cross-examination – “not through disparagement by other experts.” Caban, 9 So. 3d 53-54. 5 WHEREFORE, Plaintiff respectfully requests that this Court enter an Order precluding experts from criticizing other experts, including their opinions and/or methodology. 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. Respectfully submitted, BALL JANIK LLP By: /s/ Kasey L. Joyce Phillip E. Joseph, FL Bar No. 1000368 Evan J. Small, FL Bar No. 57306 Jeffrey A. Widelitz FL Bar No. 105642 Christopher S. 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. 6 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 7 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 8 (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. 9 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. 10 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 11 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 depositions, Number 10. 11 Q Okay. But otherwise, your job file that has 12 been produced is your full and complete job file for 13 this project? 14 A I believe so. 15 Q All right. And then I'm going to also share 16 Exhibit 130 with you. 17 Have you seen this document before? 18 A Yes. 19 Q What is this document? 20 A My CV. 21 Q Is this the most current version of your CV? 22 A If you could please scroll to the last page, 23 I'll be able to tell. 24 Q And for the record, this is going to be 25 Exhibit 130. Legal Realtime Reporting 14 1 A This is not my most up-to-date CV. If you 2 wish, I could put my most up-to-date CV in the chat. 3 Q Yes, please. Are there any significant 4 differences between this CV and your most up-to-date CV? 5 A It would just be additional testimony history. 6 Q Okay. 7 A Okay. It should be in there now. 8 Q Thank you. Okay. Just for efficiency sake, 9 because you said the most current version of your CV 10 just adds additional testimony, is it okay if I just go 11 through this one? Does that work for you? 12 A Whatever you want to do. 13 Q Okay. 14 A It's up to you. 15 Q And I know that you've testified many times. 16 It's our first time meeting, so I would like to go 17 through your history a little bit, just so I can get an 18 understanding of what your background is. 19 So let's start with your education. It says 20 that you went to Florida State. When did you go to 21 Florida State? 22 A I graduated in 2000. 23 Q And what did you study there? 24 A Structural engineering. 25 Q And it says you got your master's. Where did Legal Realtime Reporting 15 1 you get your master's? 2 A University of Central Florida. 3 Q And what did you get your master's in? 4 A Civil engineering. 5 Q And when did you receive your master's? 6 A 2009. 7 Q Did you specialize in anything in your 8 master's, or was it just a general civil engineering 9 degree? 10 A I did. I specialize in structures. 11 Q What kind of structures? 12 A Can you ask a more specific question? 13 Q You said you specialize in structures. So did 14 you specialize in buildings, did you specialize in 15 bridges, civil engineering, flatwork? 16 A Well, flatwork wouldn't be the structure. So 17 a structure is pretty much anything that's built above 18 the ground. And so I wouldn't necessarily say I -- 19 there was a specialty; so much as, just design elements 20 that would apply to any, you know, structure. 21 Q Okay. And it says that you have a lot of 22 professional registrations and certifications here. 23 Can you give me just a general run-through of what these 24 entail? 25 A Sure. The first two are professional Legal Realtime Reporting 16 1 engineering -- or first three are professional 2 engineering licenses. The fourth one is a mold assessor 3 license. The next one is a building code administrative 4 core accreditation, which is something the Florida 5 Building Code used to require for engineers who would 6 sign and seal construction drawings. 7 The next one is for the installation of 8 synthetic stucco for a manufacturer called Dryvit. Next 9 one is Dow Corning, where we would be a third-party 10 warranty inspector performing pull tests and sealant 11 observations when they would issue warranties. They 12 offer a special 20-year warranty on buildings, so they 13 require inspections to do that with -- warranty to do 14 that. The next one is certification for the 15 installation of windows and doors through AAMA, which is 16 the -- I guess the primary body, voluntary body that 17 governs the installation of windows and doors and 18 manufacturer of window products. 19 The next one is for the use of nuclear gauges. 20 And that's primarily for doing moisture surveys on flat 21 roofs. And then the last one is just a certification 22 for scaffolding. 23 Q Between your academic history and your 24 professional registrations and certifications, is there 25 anything not listed on either of these on your CV? Legal Realtime Reporting 17 1 A No. That should all be there. 2 Q And as far as your registrations and 3 certifications go, are all of these up to date? Do you 4 still hold all of these? 5 A Well, no, I don't. Like, for instance, the 6 nuclear gauge, I don't use that anymore. And some of 7 them really aren't date sensitive, but the -- the 8 licenses, the first four licenses are up to date. Those 9 are the ones that I maintain. 10 Q So your professional engineering licenses are 11 all still active? 12 A Yes. 13 Q Which of those certifications are no longer up 14 to date? You said the nuclear gauge one. 15 A Well, just -- I mean, I think that they're not 16 really date sensitive. Like the building code 17 administrative core, that's not something that's 18 required anymore. The Dryvit certification is something 19 that I received based on training in a class. That was 20 in -- a finite period of time. I'm not aware that that 21 would be anything to maintain. 22 The same thing with the Dow Corning. The AAMA 23 certification, I think you can pay them to renew that. 24 I have not done that. And I told you about the nuclear 25 gauges. And then the OSHA scaffold, I think -- I don't Legal Realtime Reporting 18 1 believe that that is something that's to be maintained. 2 Q Okay. So then we've got your professional 3 memberships. Do you just want to run me through this 4 section? 5 A Sure. So in general, I'm a member of several 6 ASTM committees that relate to building envelope and 7 building structures, as well as the evaluation of 8 buildings. And then the second one is an organization 9 called the International Concrete Repair Institute that 10 focuses on repairing concrete. 11 Q And are you still active member -- an active 12 member of all of these different committees? 13 A Yes. 14 Q Are there any other professional memberships 15 that are not listed here? 16 A None that are active. 17 Q Right. So I'm going to go through each of 18 these committees and subcommittees. For the 19 ASTM Committee for D07 Wood, Subcommittee D07.05.02, 20 what do you need to do to become a member of that 21 committee? 22 A Pay ASTM $75.00. 23 Q Do you need to be an engineer? 24 A No. 25 Q Are there any specific qualifications that are Legal Realtime Reporting 19 1 required to be on any of these ASTM committees? 2 A Not that I know of. 3 Q All right. And related to these, are there 4 any publications that you have -- I know you have a 5 publication section, but as it relates to these 6 professional memberships, are there any publications 7 that you've published? 8 A I don't know what you mean, as it relates to 9 the memberships. 10 Q Okay. I'll just leave that one for the 11 publications section. 12 Have you given any presentations as a member 13 of any of these ASTM committees or the ICRI committee? 14 A No. 15 Q So then it says, [reading] Professional 16 Development [reading concluded]. What do each of these 17 things listed mean? 18 A What do they mean? Can you clarify your 19 question, please? 20 Q Yes. So you have, [reading] ASCE Wind Loads 21 for Buildings and Other Structures [reading concluded], 22 listed under professional development. Was that a class 23 that you took? 24 A These are all classes or seminars that were 25 basically taken to -- as continuing education for my -- Legal Realtime Reporting 20 1 to maintain my licenses. 2 Q So these were all continuing education 3 courses? 4 A Yes. 5 Q How often do you have to take continuing 6 education courses? 7 A Every two years you have to renew your license 8 by taking -- most -- most of the PE requirements are 9 about 30 hours, that are taken over the course of two 10 years. 11 Q All right. So now we're at the publications 12 section. Have any of these publications informed your 13 opinion in the present case? 14 A I -- I wouldn't say any of them informed my 15 opinion, because I don't -- I guess I wrote the article, 16 so I'm not really using them to develop my opinions, but 17 there's probably some correlation between the subject 18 matter of those articles and some of the allegations and 19 my thoughts about those in the subject case. 20 Q And the most recent publication, it looks 21 like, was for 2018. Is that up to date? 22 A Yes. 23 Q Is there anything on this that's not included 24 in this list that you published? 25 A No. Legal Realtime Reporting 21 1 Q It looks like you've given a handful of 2 presentations. Are any of the presentations that you've 3 given related to the opinions that you're giving in this 4 case? 5 A Yes. 6 Q And which ones would those be? 7 A I would really say all of them probably have 8 some relationship to subject matters that are covered in 9 this case. 10 Q Have you provided these -- sorry, strike that. 11 Do you have copies of the PowerPoints from 12 these presentations? 13 A Well, I -- yes, I do for some; and then others 14 I would say, I do not. 15 Q Have you provided copies of these 16 presentations to counsel in this -- for this matter? 17 A No. 18 Q But these are related to the issues in this 19 matter, correct? 20 A There would be subject matter here that is 21 also similar subject matter to what's covered in -- for 22 instance, in my report. 23 Q All right. And then now we can move on to 24 your career summary. So from 1998 to 1999, it says you 25 were a construction crew foreman for Legal Realtime Reporting 22 1 Champion Construction. Can you talk me through what 2 your responsibilities were and what that job was? 3 A Essentially, I started out as just a laborer. 4 And by the second year, I supervised a group of guys; 5 but basically, we were just laborer that was executing 6 repairs and renovations to buildings. So primarily, 7 what we did is, we renovated retirement homes. And then 8 we also did some single-family home renovations. And 9 this was in Atlanta, so it was -- there was a lot of 10 basement remodeling or finishing. 11 Q Have you ever held a general contractor's 12 license? 13 A No. 14 Q So when you were working as a foreman, that 15 wasn't something that you needed to do as you were 16 working construction? 17 A No. You don't have to be licensed to work in 18 construction. 19 Q Right. But as -- as -- in the position that 20 you were in, as you were working in that construction 21 capacity, that was not something you ever sought after? 22 A Correct. 23 Q Okay. Let's move on to the next one. What 24 was your next job from 1999 to 2000? 25 A I worked for a civil engineering firm called Legal