Nathan Walberg had testified in depositions in November 1984 and January 1985 -- prior to Windowmaster's filing suit against Rush -- that architects and consultants on the Rush project had been responsible for delays, but Windowmaster insisted in November 1985 on limiting its pleadings to Rush's vicarious liability for Morse/Diesel's actions. If Windowmaster felt that Rush were indeed responsible for the actions of other entities, it could have brought its claims then. If that were not true enough, Walberg testified in another deposition about these same entities in October 1988. Windowmaster amended its complaint five months later, but again limited its claim against Rush to Rush's liability for Morse/Diesel's actions.
The court finds that Windowmaster has been dilatory in seeking amendment. This is a complex case with many parties. The court has ruled on numerous motions in an effort to narrow the issues for trial, a date for which has been set for some time. Windowmaster now asks the court on the eve of trial for leave to do what it should have done in November 1985, or at the very least March 1989. Accordingly, the court will deny Windowmaster leave to amend its complaint, and will limit Windowmaster's evidence against Rush on Count 4 of Windowmaster's complaint to that relating to Morse/Diesel's conduct.
Rush, Morse/Diesel, and Safeco, however, want more than this. They want the court to bar any testimony relating to the Zemsky report and the opinions expressed in it. All of these parties claim first that the failures cited in the report were not pleaded. As noted above, this is true with respect to Windowmaster's claim against Rush. As for Morse/Diesel and Safeco, however, a close look at Windowmaster's complaint reveals that when Windowmaster makes it claims against Morse/Diesel, it states that Morse/Diesel breached its agreements with Windowmaster "in numerous particulars then known to it, including but not limited to " nine specific breaches. See Third Amended Complaint at paras. 23, 34 (emphasis added). This language is unlike that of Count 4, which expressly limits Rush's liability to acts committed by Morse/Diesel. If Morse/Diesel was responsible for the actions of the entities faulted in the Zemsky report, and if these actions amounted to a breach of Morse/Diesel's contract with Windowmaster, then Windowmaster can introduce evidence of the failures of these entities against Morse/Diesel. If these actions were among those which Windowmaster reported to Safeco, see id. at paras. 38, 40, 44, then Windowmaster can introduce this evidence against Safeco.
Morse/Diesel and Safeco raise two other objections to the Zemsky report. They contend first that the report impermissibly invades the province of the jury to decide questions of fact and of the province of the court to decide questions of law. While the court is sympathetic to this view, and will make every effort to prevent introduction of improper testimony on the ultimate issues, it is permissible for experts to testify about the customs and usages in an industry, and to amplify the terms of a contract if customs and usages shed light on the meaning of those terms. See Rule 702, Fed.R.Evid. (specialized knowledge admissible to assist trier of fact in determining factual issues); Western Industries, Inc. v. Newcor Canada Ltd., 739 F.2d 1198, 1202-03 (7th Cir. 1984). Such testimony is distinguishable from that refused in Loeb v. Hammond, 407 F.2d 779 (7th Cir. 1969), where plaintiff Loeb offered the testimony of an attorney to testify about the legal significance of language in a contract -- something which a federal judge is fully trained to know. Here, it is plausible that Zemsky has specialized knowledge about construction industry practices, and that he can assist the jury in determining what were the implied terms, if any, of the Windowmaster subcontract.
Finally, Morse/Diesel and Safeco argue that Zemsky's report contains many statements which are inadmissible, on account of hearsay and the like. While Zemsky can offer his expert testimony and opinion based on matters which might be inadmissible, see Rule 703, Fed.R.Evid., that Zemsky testifies does not make all of the materials upon which he relies admissible for the truth of the matters which they assert. See Paddack v. Dave Christensen, Inc., 745 F.2d 1254, 1261-62 (9th Cir. 1984); Rose Hall, Ltd. v. Chase Manhattan Overseas Banking, 576 F. Supp. 107, 158 (D. Del. 1983), aff'd, 740 F.2d 956 (3d Cir. 1984). The court must subject the latter evidence to independent analysis before admitting it. See Nachtsheim v. Beech Aircraft Corp., 847 F.2d 1261, 1270-71 (7th Cir. 1988).
The court enters summary judgment in favor of Morse/Diesel on Count 2 of Safeco's Cross-Claim. The court denies Safeco's motions for summary judgment on Counts 1 and 3 of Windowmaster's Third Amended Complaint and on Safeco's Counterclaim against Windowmaster. The court grants Morse/Diesel and Rush's motion in limine on delay damages in part; their motions in limine on other damage items in part; Rush's motion in limine as to evidence of entities other than Morse/Diesel; and the motion in limine to exclude the testimony of D.W. Matson III. The court reserves its ruling on Morse/Diesel's motion in limine on custom and usage, and denies Morse/Diesel and Safeco's motions in limine to bar evidence relating to the Zemsky report.
DATE: September 28, 1989