Reed Smith Client Alerts

In a recent decision from the Delaware Superior Court, BCD Associates, LLC v. Crown Bank, C.A. No. N15C-11-062-EMD (Del. Super. Ct. July 20, 2021) (Order), the court declined to preliminarily exclude expert testimony that could be interpreted as opining on legal issues, because the matter will be tried in a bench trial, and, therefore, there is no concern that the testimony will create unfair prejudice or mislead the jury.

Relevant case background

The dispute in BCD Associates, LLC v. Crown Bank arose out of the acquisition and renovation of a hotel. The plaintiff, BCD Associates, LLC, was hired as a general contractor for the hotel renovation project by a non-party to the litigation. The defendant, Crown Bank, funded the project.

The plaintiff initiated a lawsuit in the Delaware Superior Court on November 6, 2015 for breach of contract and related claims involving the project. The defendant asserted counterclaims against the plaintiff for fraud and conspiracy. The bench trial of the case is set to begin August 16, 2021.

During the litigation, the defendant retained an expert who is a professional engineer with 30 years of engineering and commercial construction management experience. The defendant’s expert prepared a report opining that the plaintiff: (i) entered a construction contract knowing that the fixed price was insufficient to complete the project; (ii) concealed costs; (iii) submitted misleading applications for payment; (iv) incurred less than a specified amount of costs during a specified timeframe; and (v) generated excessive costs by failing to manage the project competently.

The plaintiff moved to preliminarily exclude the expert’s report and testimony, arguing that his opinions were legal or generally factual and unsupported by the evidentiary record.