THE PHOENIX INSURANCE COMPANY v. WEST JERSEY AIR CONDITIONING AND HEATING COMPANY, No. 2:2009cv05570 - Document 15 (E.D. Pa. 2010)

Court Description: MEMORANDUM AND OPINION. SIGNED BY HONORABLE RONALD L. BUCKWALTER ON 10/26/10. 10/27/10 ENTERED AND COPIES MAILED, E-MAILED.(fdc)

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THE PHOENIX INSURANCE COMPANY v. WEST JERSEY AIR CONDITIONING AND HEATING COMPANY Doc. 15 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA THE PHOENIX INSURANCE COMPANY, a subsidiary of THE TRAVELERS INDEMNITY COMPANY als/o SURETY MECHANICAL SERVICE, INC. CIVIL ACTION FILED DCl ? 6 za10 Plaintiff, MICHAEl-E. KUNZ. Ol,rk By. .J)op.CIoII< v. WEST JERSEY AJR CONDITIONING AND HEATING COMPANY F'LED NO. 09-5570 c "C' , .' \ , ,. .':l10 MICHAEL E I(UNZ Clork Defendant. _ D.p.el.... MEMORANDUM BUCKWALTER, S.J. October 26, 2010 Presently before the Court are Defendant West Jersey Air Conditioning and Heating Company's Motion for Summary Judgment and Motion to Preclude Testimony of Plaintiff's Expert. For the following reasons, the Motion for Summary Judgment is granted and the Motion to Preclude Testimony of Plaintiff's Expert is dismissed as moot. I. FACTUAL AND PROCEDURAL mSTORY This is an insurance subrogation action in which Plaintiff The Phoenix Insurance Company ("Plaintiff') seeks contribution and indemnity from Defendant West Jersey Air Conditioning and Heating Company ("Defendant"). (CompI." 12-24.) The case stems from an incident on November 15, 2006, in which a man named Joseph Corosanite was injured un the roof of a building located at 2600 South Broad Street in Philadelphia, Pennsylvania. (Id., 3; Def.'s Mot. Summ. 1. 2.) Mr. Corosanite claimed that he was on the roofto increase the flow Dockets.Justia.com of fresh air into the building, and that he sustained serious injuries when part of an HVAC unit known as the "economizer hood" ren and knocked him offof hi. ladder. (Def.'. Mot. S1J1lll11. J., Ex. K, Amended Complaint of Joseph and Angela Corosunite ("Corosanite Am. Compl. "). 9- 10.) The HVAC unit at the crux of this litigation \-vas installed in 1998. (Dees Summ, J 11 9,) P. Agnes, Inc. was the contractor that oversaw the project and Surety Mechanical Service, Inc. was the subcontractor that perfonned the actual installation. (I!i 'iI1l9-1O.) III April of 1998, Defendant entered into an agreement to maintain the roof-top air conditioning units at 2600 South Broad Street, including the HV AC unit installed by P. Agnes and Surety. (.I!i 18-19; kLl Ex. D. Service Contract betv·;een West Jersey Air Conditioning and Heating and South Philadelphia Community Center ("Service Contract").) Defendant perfonned mainteuance work on these units untH 2004, when the property was sold to DeMedici Corp,) which did not renew Defendant's contract. (Def.'s Mot. Summ, 22-23.) The roof-top air conditioners were thereafter serviced from September 2005 until February 2007 by Campano Heating and Air Conditioning Company. (lA", Ex. L, Engineering Investigative Report Prepared for Jo:seph Corosanite's Counsel, 3.) Mr. Corosanite filed suit against P. Agnes. Surety, Campana, and Defendant, alleging that their negligence in either installing or maintaining the HVAC illut caused his injuries, (Corosanite Am. 12-25.) Mr. Corosanitc's case settled after jury selection, and all parties except Defendant contributed to the settlement. (Def.'s Mot. Summ. J. 31-32.) Piaintiff, Surety's insurance company. filed its Complaint on November 23, 2009, seeking contribution and indemnity from Defendant. 12-24,) Defendant filed the present 2 Motion for Summary Judgment and Motion to Preclude Testimony of Plaintiffs Expert on July 20,2010. Plaintiff responded to the Motion for Swnmllry Judgment on August 13,2010, bUt did not respond to the Motion to Preclude Testimony of' Plaintiffs Expert. n. Standard of Review Summary judgment is proper "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled !ojudgment as a matter of law." FED. R. CIV. P. 56(cX2). A factual dispute is "material" only if it might affect the outcome of the case, Andep)on v, Liberty Lqbbl", 19&., 477 U.s. 242, 248 (1986). For an issue to be "genuine," a reasonable fact-tinder must be able to return a verdict in favor of the non·ruoving party, hi.. On summary judgment, it is not the oourt's role to weigh the disputed evidence and decide which is more probative, or to make credibility detenninutions. Boyte-y_, CQuntv ill AUegheny, PA, 139 ".3d 386, 393 (3d CiT. 1998) (citing l!etruzzi's lOA Supemlarkets, Inc. v. Qjl[ling-Delaware Co.. Inc., 998 F.2d 1224, 1230 (3d CiT. 1993)). Ratiler, the court mu,t consider the evidence. and all reasonable inferences which may be drawn from it, in the light most favorable to the non-moving party. Ml!tsushita Elet. Indus, Co. v. Zenith B.MiQJ.&m.,., 475 U.S. 574,587-88 (1986) (citing lLS. v. Diebold. Inc., 369 U.S. 654, 655 (1962)); rigg Com, y. l.!o.ll'J::oming Corp., 822 F.2d 358, 361 (3d Clr. 1987). If a confl,ct arises between the evidence presented by both the court must accept as true the allegations of the non-moving party, and "all justifiable inferences are to be drawn in his favor," Anderson, 477 U,S. at 255, Although the moving party bears the initial burden of showing an absence of a genuine issue of material fact, it need not "support its motion ",lith affidavits or other similar materials 3 negating the opponent's claim." i;&lotex Coil'. v. Catrett. 477 U.S. 317,323 (1986). It can meet its burden by "pointing out .. , that there is an absence of evidence to support the nonmoving party's case." lib at 325. Once the movant has carried its initial burden, the opposing party "must do more than simply show that there is some metaphysical doubt as to material facts," Matsushita Elee.• 475 U.s. at 586. "'fT]here is no issue fur trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that pnrty." 477 U.S. at 249. Summary judgment may be granted when "the evidence is merely colorable ... or is not significantly probative." IlL l!!. at (citations omitted). Discussion A. Mll!lq!l for Summary Judplent In Pennsylvania, a plaintiff who brings a negligence claim must establish that the defendant owed the plaintiff a duty, that the duty was breached, that the breach caused theplaintiffs in,jury, and that the plaintiff suffered damages, Harris y, Merchant, No, CIVA09­l662. 20l 0 WL 3734l 07, at '7 (E.D. Pa. Sop" 23, 2010) (citing Mcrlini ex ret MWIni v. (Jallitzin Wawr Auth., 980 A.2d 502. 506 (Pa. 2009). In this case, Plaintift' alleges: that Defendant had a duty to inspect and maintain, in a workmanlike manner. the HV AC unit that injured Joseph Corosanite. and to ensure (hat the HV A C unit and its surrounding support system were in laws. (Compl. with aU applicable codes and The only evidence submitted to the Court In support ofPlainliff. claim that Defendant breached these duties is the expert report of Kenneth P. Creech., a consulting engineer. (Def,'s Mot. Summ, J., Ex, H, Expert Report of Kenneth P. Creech 4 ("Expert Report").)' Mr. Creech states that Defendant failed: • To provide any preplanning or professional engineering support that would have recOgni7xd the mandatory legal requirements for service platform:> and guard rails prior to taking the job. • To enforce any safety program at the site. • To petfonn a survey ofthe roof and the equipment that they were contracted to service to dett.'TIIline, in advance. any potential hazards or safety requirements that needed to be addressed .... , To take the necessary care to recognize that the old rooftop equipment was a much larger '"Mammoth" Brand unit that was installed covering the entire length of the 1Beam framing raised 56 inches on the roofw the bottom of the unit making it impossible to use the rails as a walking platfotm. When the new smaller unit was instaHed less than half the size of the original HVAC equipment, rail space became available to use as a service walkway, however no guards were considered for the new hazard. • To recognize that the old unit had side access and wa..<:; routinely serviceable wjthout climbing up on the rails, The fie\.\' Carrier rooftop required access to the top of the machine for access for service creating the need for additional safety action. • To Inform the management of the building of the existing hazards that must be corrected on the roof so the building management could have taken action to remediate the conditiotls on the roof, t To prohibit workers to utilize closed step ladders hazardously in violation to the required methods delineated in the OSHA 29 CFR 1926 regulations .... (Expert Report 7,) The Court now considers each of these seven grounds to determine whether there is a genuine issue of material fact in this case, I. Failed tv Preplanninj{ or Profws.i9.nal Enfllneerine Sypport; Failed to Enfqrce_a Safety Pro&ram; or a Survey of the RooJand the EiJuipment Thereon to. if Any Hazatds Existed (}fr. Fint. and Third !.iround. for Liabilityl 1 The only docwuents submitted by Plaintiff in this case are the Complaint and the Response to Defendant's Motion for Summary Judgment. Other Ulan its discus::;jon of the expert report addressed in this Memorandum, PlaintifPs Response consists largely ofirre1evant factual distinctions between the present case and cases Defendant cited for principles of law (not factual similarity) in its Motion for Summary Judgment. No affidavits, transcripts ofdepositions, or other exhibits were submitted in conjunction with Plaintiffs Response to Defendant's Motion for Summary Judgment. The Court's copy ofMr, Creech's expert report was submitted as an exhibit Oct's Mot. Summ. J., Ex. H.) by Defendant. 5 Mr. Creech's expert report states that Defendant failed in its duty "to provide any preplanning or professional engineering support that wou1d have recognized the mandatory legal requirements for service platfunns and guard rails;" to enforce a safety program; and to perform a survey of the roof and the equipment thereon to determine if any potential hazards or safety requirements needed to be addressed. (Expert Report 6-7.) According to Mr. Crcec,h, Joseph Corosanite would not have fallen off of his ladder and sustained injuries if Defendant had taken these precautionary measures, (hi" at 8,) Mr. Creech states that these duties existed by virtue of DefendOllt's membership in Philadelphia Loc.IUnion 420 of HVAC Piping and Steam Fitters.' ffiL at 3-5;!J!" Ex. I, Deposition of Kenneth P. Creech ("Creech Dep."), 186:]-190:11, July 6, 2010.) Because it is the only basis upon which \it, Cree{:h asserts that Defendant had assumed these duties/ the issue of whether or not Defendant was a member of Philadelphia Locallinion 420 is crucial to this Motion for Summary Judgment Defendant argues that it was never a -------:1 1n addition to these duties, Mr. CrOO\.'h also states that Loca1420 mandates compliance \\rith section 407,2 of the Philadelphia Mechanical Code 1993 Edition and American National Standards Institute ("ANSI") Standard AI264.1-199S, (Expert Report 3-5.) In this case, Mr. Creech asserts that section 407.2 and ANSI AI264.1-l995 required the installation ofa walking platform and guardrail on the HVAC unit, and that these safety precautions would have prevented Joseph Coro,anite from falling off the ladder and injuring himself. ffiL at 4,8.) 3 The Conclusion to Mr. Creech's report stales that all seven of his grounds for liability are based on Defendant's "own Local Philadelphia union requirements, Philadelphia MechanicaJ Code requirements, Stale of Pennsylvania requirements, National ASTh1 Standards, International Building Code requirements and Federal Standards, through the Deportment ofLaoor administered by OSHA Safety Administration," (Expert Report 6,) 'This is merely a vague recitation of authorities that fails to state with particularity the source of Defendant's liability, The Court therefore looks to the body ofthe expert report and the deposition of Mr. Creech to determine precisely what sources Mr. Creech identifies as giving rise to Defendant's duties, Here, the Court fmds that the only discernible basis for liability is Defcnd3l1t's alleged membership in Philadelphia Local Union 420, 6 member of Loca1420, and has introduced an affidavit from its president., Jacqueline A. Conroy, in support of this argument. (DeC, Mot Summ. J. 6; Jd., Ex. E, Affidavit of Jacqueline A. Conroy ("Conroy Affidavit").) Pursuant to Federal Rule of Civil Procedure 56(c)(I), an affidavit submitted in support of summary judgment must "be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testifY on the malters stated." FED. R. CIV. P. 56(e)(1). Here, Ms. Conroy's affidavit states that Defendant and ils employees were non-unioD during the time they serviced the HVAC units at 2600 South Broad StreeL (Conroy Affidavit n 1.7.) This is based on her personal knowledge as president of the company, and there is nothing in the record to indicate that she would not be competent to testifY on this matter. (4) The Court therefore finds that Ms. Conroy's affidavit is admissible evidence. Plaintiff's only evidence that Defendant was in fact a member of Loc.al420 comes trom .Mr. Creech, who claims that he learned QfDefendant's membership by calling the union office and examining a roster of union members on the Loca) 420 website, (Creech Dep. 110:17112:10.) Mr. Creech's proofof Defendant's union membership is therefore based nOt on personal knowledge. but on information and statements obtained trom third parties. not submitted an affidavit from the union representative with whom .'Mr, Creech spoke1 a copy of the Local 420 roster referenced by Mr. Creech, or any other evidence to support this claim, As such, Plaintiffs argument that Defendant is a member of Philadelphia Local t:nion 420 is premised on inadmissible hearsay and cannot be considered by the Court in deciding this Motion 4 Pursuant to Federal Rule of Evidence 801 (e), .. I [h]earsay' is a statement, other than one made by the declarant while testifYing at the trial or hearing, offered in evidence to prove the truth ofthe matter asserted." FED. R. Evm. 801(c). Hearsay is. not admissible unless it falls into 7 for Summary Judgment. See Blackburn v. United Parcel Serv .. Inc" 179 F.3d 81, 95 (3d eir. 1999) ("[AJ hearsay statement that is not capable of being admissible at trial should not he considered on a summary judgment motion, jl) (citations omitted), In sum. the duties described by Mr. Creech are premised on Defendant's alleged membership in Philadelphia Local Union 420, and Defendant has introdu(''ed admissible evidence that it was: not a member of this union. The only evidence submitted by Plaintiff to challenge Defendant's denial of union membership is inadmissible hearsay. The Court therefore finds that Plaintiff has failed to establish that Defendant bad a duty 10 provide preplanning or profes.sional engineering support that would have recognized the mandatory legal requirements for servIce platforms and guard rails. to enforce a safety program, or to pcrfonn a survey of the roof and the equipment thereon to determine if any potential hazards or safety requirements needed to be addressed. 2. Whether Defendant Failed.to Recoenizc that the Installation of an HVAC Unit Which was Smrulcr than tbe Previous Unit Created Rail Could lJaye neeD Us.ed as J!.Sm.ice Walkway that Sltace .H.\mJJired Guards•• D.d DrlentlaDt Failed t. Re!;QIICnize that Service Access for the HV AC Unit Required Additional SafetY..Action Foyrth and Fifth Grounds for Defendlnt's Liability) r,,1r. Crcech's expert report notes that before the HVAC unit which Joseph Corosanite was installed, a much larger air conditioner - a "'Maw.moth'l brand unit - was located on the roof of26QQ South Broad Street. (Expert Report 7.) Wnen the currenl, smaller "Carrier" one of the exceptions enumerated in the rules. FED. R, EVID, 802, Here, the statements Mr. Creech obtained about Defendant's union membership were not made at a trial or hearing, and were offered to prove the truth of the matter asserted, namely. that Defendant was a member of Local 420, Therefore, the evidence that Defendant is a member ofLoca1420 is hearsay, and is not subject to any exception. 8 unit replaced the Mammoth unit, rail space became available on the HVAC's support frame which could be used as a service walkway. (1lIJ Mr. Creech argues that the exposed rail should have been supported by guards, and that Defendant had a duty to recognize this need. (Id. at 68.) When a<ked during his deposition why it was Defendant's duty to remedy this alleged problem, Mr. Creech claimed it was because Defendant had "more eX{rorience on this she than anyone else" and because "they were there." (Creech Dep. 192:3­4,7.) The expert report also states that Defendant failed to recognize that service access for the Mammoth unit was located on the side of the machine, and did not require the use of any rails, while the new Carrier unit could only be accessed from above and thus required "additional safety action." (Expert Report 7.) Mr. Creech stated that Defendant's dut:;· to recognize this probJem was "based on the fact that the nevi.' unit is different from the old unit, functions differently." (Creech Dep. 193:9­11.) tn Malloy v. Doty 820 F. Supp. 217 (E.D. Pa. 1993), the court held that '"knowledge of a potential danger created by others does not give rise to a duty to abate the danger or to liability for h\iuries caused by such danger." at 222. Blev.­itt v, Man Roland, Inc" 168 F. Supp. 2d 466, 470 (E.D. Pa. 2001) ("mere knowledge ofa dangerou< situation, even by one who has the ability to intervene, [Is not] sufficient to create a duty to act.") (citations omitted). Here, with respect to both grounds for liability, Mr. Creech's sole basis lor assigning fault to Defendant is its failure to recognize the alleged problems created when the Carrier unit replaced the Mammoth unit. Defendant, however, was not involved in either removing the old unit or installing the new one. Mr. Creech's repoi1 merely demonstrates that Defendant was in a position to observe alleged structural deficiencies that arose when the new 9 HVAC unit was installed; it does not establish that Defendant bad an affirmative duty to actually remedy these deficiencies, Indeed, Defendant argues that it was only hired to provide basic maintenance on the HVAC units, not to perform safety inspections or install equipment such as guards and walking platforms. (Def.'s Mem. Supp. Mot. Summ. J. 9.) In support of this argument, Defendant has introduced its service contract for 2600 South Broad Street, which stated that Defendant would not be responsible for"[ c]hanges, repairs or corrections to equipment due to design, government (Service Contract 4.) Defendant's evidence shows that it code or insurance expressly declined to assume the duties described by Mr. Creech, which arise from section 407.2 of the Philadelphia Mechanical Cede and ANSI Standard A1264.1-1995. (Expert Report 3-5.)' Plalntiffbes not introduced any evidence thet conrradicts this understanding of Defendant's responsibilities. As such, the Court finds that Defendant did not have a duty to recognize the need for guards or to take additional safety measures concerning the HVAC unit. FaDed to Inform the Qyj1ding's ManaUR!ent of H_rds so that MaDlllemlm1 Could Have R....edied the Huar4ou. Comliliol!' on the Roof (Mr. CmdJ'l Sixtb BOlis for Lialriliiil Mr. Creech's sixth basis for assigning faull to Defendant is his assertion that Defendant failed in its duty to infonn the management of 2600 South Broad Street that the hazards on the roof-top HVAC unit needad to be corrected. 11!!. at 7.) Mr. Creech .taied that this duty arose , Furthermore, Mr. Creech claimed that section 407.2 oftbe Philadelphia Mechanical Cede and ANSI Standard AI264.1-1995 applied to Defendant by virtue of its membership in Philadelphia Local Union 420. IllIl!i note 2. As discussed in section IIl.A.!, Plalntiffhas not established that Defendant is a member of Local 420, and this provides additional support fur the Court's conclusion that Dafendant did not have a duty to provide guards or other safety equipment around the HVAC unit. 10 from the fact that Defendant was hired "to take care of the systems. And when they go up to the roof, they saw the fact that thcre was a safety issue, they should have told the management so they cornd either hire somebody to put it in or take action to protect its 0""'11 people," (Creech Dep.194:10.15.) TIle Court finds three problems with Mr. Creech's reasoning in his description of Defendant's alleged failure, First, to the extent an expert's opinions are predicated upon factual assumptions. those assumptions "must find some support in the record." Shaw lw Strain v, Stf4\ckhous;;. 920 F.2d 1135, 1142 (3d Cir. 1990) (quotation omilled). Where the factual assumptions are twfounded, a court, on fmmmary judgment review, is free to disregard the expert's opinions. rd, Here, Mr. Creech !;.onceded, during his deposition, that he actually does not know whether Defendant informed management of the roof-top hazards. (Creech Dep. 247:8-16.yi Therefore, by his own admission. his assumption that De1endant failed in this duty is premised on an incomplete understanding of the facts. Second, there is no evidence that Defendant was aware that these alleged roof*top hazards existed. The safety requirements described by Mr, Creech the installation of a guard rail or walking platfonn surrounding the HVAC unlt- arise from his interpretation ofscction 407.2 of the Philadelphia Mechanical Cede and Standard A1264.l-1995. As discussed in section (} According to Mr. Creech, if you sec . , , someplace that's soft in terms of safety, it should be addressed and h should be notified to the owner. which is an obligation that they have, not - well, see, I don't know whether they did that or not. They should have infonned them. But again, because I don't have firsthand knowledge afwhat the owners did, l'm unable to determine that II I11.A.1 and note 5 of this memorandwn, Mr. Creech has not established that either of these apply to Defendant. If Defendant did nol have an obligation to abide by the Philadelphia Mechanical Code or ANSI, there is no reason to assume it would have been aware of these safety requirements and been in a position to inform management about them. Third. even if Defendant was aware of these safety issues, there is nothing in the reCQrd to suggeSt that it had a duty to warn the buiJding's management about them. A:i explained above, mere knowledge of a dangerous condition created by others does not give rise to a duty to act. Malloy, 820 F. Supp, at 222, If the hazardous conditions pertained to the actual operation ofthe HVAC unit, then Plaintiff could more convincingly make the argument that Defendant - as the company hired to service the machine had a duty to make the necessary repairs or inform management of the problems, In this case, however, the alleged hazards stemmed from the lack structural support equipment that should have surrounded the HVAC unit, not from any deficiencies in the HVAC unit itself. As discussed in sec-tion UI,A.2, Defendant's service contract limited its responsibHities to basic maintenance of the HVAC units, and explicitly stated that Defendant would not make repairs, alterations. or changes related to design or government code requirements. (Service Contract 4.) Plainti ff has not introduced any evidence that challenges this: understanding of Defendant's obligations} nor has it articulated any other basis for Defendant's liability. The Court therefore rejects the argument that Defendant had a duty to inform the building's management ofthc hazards d"scribed by Mr. Creec,h. 4. Whethor Dd'endant hil<d In Probibil Workcr§ from Utilizing CI<,..d in Violation of Methods Deline!!!ed i. OSHA 29 c'F.R, § 1916 (Mr. Ground for Li.bill1Il .MI. Creech's final basis for assigning fault to Defendant is that It failed to prohihit 12 workers from utilizing closed step ladders in violation of29 C.F.R. § 1926.' (Expert Rep0Jt7.) When asked to clarity this statement, Mr. Creech said that he was not faulting Defendant for failing to prevent Joseph Corosanite. the injured from usIng a dosed ladder to access the HVAC unit at the rime he feU, but for raillng to prevent its own employees from using ladders in thi' manner. (Creech Dep. 198:5-13.) In other words, Mr. Creech faults Defendant because "[tjhey',e not taking care of the I, own people." Cl<L at 19&:12-13.) Mr. Corosanite was not employed by Defendant, and because Defendant's duty to its own employees is not an issue in this case, the Court does not address the merits of this argument. B. Motion to Preclude Testimony of Exnu! On July 20, 2010, the sarne day tbat its Motion fOr Swnmary Judgment was filed. Ucfendant also filed a Motion to Preclude Testimony ofPlaintifl"s E.xpert, Plaintiff never responded to this Motion. The Court notes that pursuant to Local Rule of Civil Procedure 7.1 (c), Defendant's Motion "may be granted as uncontested" as a result of Plaintiffs failure to respond. RD. PA. CIV. R. 7.1(c). III light ofthe Court's decision to grant Defendant's Motion for Summary Judgment, however, the Motion to Preclude Testimony of Plaintiffs Expert is merely dismissed as moot IV. CONCLUSION For all of the foregoing reasons. the Court finds that Plaintiff has not presented sufficient evidence for a reasonable jury to return a verdict in its favor. The only evidence introduced to establish Defendant's aHegcd negligence is the expert report of Kenneth Creech, which relies on inadmissible hearsay and fails to demonstrate that Defendant vioiated any duty to Joseph 1 29 C.F.R. § 1926 sets forth safety and health regulations for construction. 13 Corosanite, the person whose injury was the catalyst for this subrogation action. Because the Court finds that there is no genuine issue of materia] fact, Defendant's Motion for SWl1mary Judgment is granted and Defendant's Motion to Preclude Plaintiff's Expert Testimony is dismissed as moot. 14

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