The parties contest whether the defendant is a Delaware corporation or an Illinois 1

corporation. Compare Compl. ¶ 2 (plaintiff describing defendant as Delaware corporation); Pl.

Ans. to Def. Counterclaim ¶¶ 1, 3 (same), with Notice of Removal ¶¶ 4-5 (defendant describing

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

1150 BP LLC : CIVIL ACTION

Plaintiff, :

 :

vs. : NO. 05-5686

 :

QWEST CHEMICAL CORPORATION :

Defendant. :

O R D E R & M E M O R A N D U M

O R D E R

AND NOW, this 12th day of July 2006, upon consideration of the Plaintiff’s Motion in 

Limine to Bar The Expert Testimony of Stephen H. Golden, P.E. (Document No. 17, filed May 12,

2006), and the Defendant’s Answer to Motion in Limine to Bar the Expert Testimony of Stephen H.

Golden, P.E. (Document No. 18, filed May 30, 2006), for the reasons set forth in the Memorandum, IT

IS ORDERED that Plaintiff’s Motion in Limine to Bar The Expert Testimony of Stephen H. Golden,

P.E. (Document No. 17, filed May 12, 2006) is DENIED. This Order is WITHOUT PREJUDICE to

1150 BP LLC’s right to object to any inadmissible testimony or other evidence offered by Golden,

including, but not limited to, evidence allegedly barred under the terms of the lease agreement at issue. 

M E M O R A N D U M

I. BACKGROUND

Plaintiff, 1150 BP LLC (“BP”), is a Pennsylvania Limited Liability Company with its principal

place of business at 113 Bethlehem Pike, Colmar, Pennsylvania. Comp. ¶ 1. Defendant, Qwest

Chemical Corporation (“Qwest”), is organized under the laws of either Delaware or Illinois. On or 1

Case 2:05-cv-05686-JD Document 20 Filed 07/14/06 Page 1 of 8
defendant as Illinois corporation). 

 Golden explains that, on or about November 18, 2003, Qwest and BP executed the lease 2

with an attachment entitled “Landlord’s Scope of Work,” in which BP promised to make ceratin

modifications, additions, and repairs to the property. Because the attachment was not signed or

initialed during the lease execution, Qwest and BP each have copies of that document with minor

variations representing their own understanding of the landlord’s required work. In this section,

Golden reviews the discrepancies between Qwest’s document and BP’s document. He notes that

“[n]early all the failures to meet the Landlord’s Scope of Work appear in both [versions of the

document].” Golden’s Report 1, Def. Ex. E. 

 According to Golden, the architectural issues include, inter alia, BP’s failure: (1) to raise 3

the ceiling height to eighteen feet, (2) to install a parapet wall as directed by Qwest, and (3)

construct two loading docks and one drive-in door as directed by Qwest. Golden’s Report 4-5,

Def. Ex. E. 

 According to Golden, the structural issues include, inter alia: (1) “obvious structural 4

damage to the wood structure”; (2) problems with the cricket installation to the parapet wall; and

(3) BP’s failure to install any cricket behind the parapet over the retail showroom and warehouse.

Golden’s Report 5-6, Def. Ex. E. 

 According to Golden, the electrical and plumbing issues, include, inter alia, BP’s 5

failure: (1) to relocate the transformer to the west side of the premises; (2) to provide electrical

service to the roof for the new installation of signage, per the local code; (3) to install the agreed

upon electrical outlets; (4) to install telephone service within the office area; (5) to maintain the

sewage ejector pumps; (6) to install new ADA compliant restrooms. Golden’s Report 6-7, Def.

Ex. E. 

2

about November 18, 2003, pursuant to a written lease agreement, Qwest agreed to lease from BP the

premises at 1150 Bethlehem Pike, Hatfield, Pennsylvania. Comp. ¶ 4; Def. Counterclaim ¶ 1. At issue

in this case is whether BP and Qwest fulfilled their obligations under the written lease agreement.

Qwest has retained Stephen H. Golden, P.E., a structural engineer, as an expert. Golden wrote a

report, dated April 7, 2006, with the following sections: Landlord’s Scope of Work ; Discussion, which 2

includes subsections entitled Architectural Issues, Structural Issues, Electrical and Plumbing Issues, 3 4 5

Case 2:05-cv-05686-JD Document 20 Filed 07/14/06 Page 2 of 8
 According to Golden, the site and landscaping issues include, inter alia, BP’s failure to 6

landscape the premises as agreed upon. Golden’s Report 7, Def. Ex. E. 

 In this section, Golden criticizes the investigation and conclusions of BP’s expert 7

witness. Golden’s Report 7-8, Def. Ex. E. 

 Golden states “[n]early all the building repairs will require Qwest to vacate the property

8

for varying time periods.” Golden’s Report 8, Def. Ex. E. Golden then details the repairs required

to the premises. 

 This conclusion is without prejudice to BP’s right to object to any inadmissible 9

testimony or other evidence offered by Golden, including, but not limited to, evidence allegedly

barred under the terms of the lease agreement at issue. 

3

Site and Landscaping Issues, 1150 Expert Report, and Building Repairs and the Effect on Qwest’s 6 7

Operations ; and Conclusions. Golden’s Report, Def. Ex. E. In concluding, Golden states: 8

It is my professional opinion, with a reasonable degree of engineering certainty that [BP] failed

to perform significant portions of their Landlords Scope of Work, and certain portions of that

scope were performed poorly or in a substandard manner. . . . [BP’s] failure to perform the

required work prior to Qwest’s occupying the property will seriously, negatively affect Qwest’s

operations within the structure. Repairing the structurally deficient office roof, alone, will force

Qwest to cease or temporarily relocate their operation for several months. 

Golden’s Report 12, Def. Ex. E. 

BP responded to Golden’s proposed testimony by filing Plaintiff’s Motion in Limine to Bar The

Expert Testimony of Stephen H. Golden, P.E. BP argues that, under Daubert v. Merrell Dow Pharms.,

Inc., 509 U.S. 579 (1993), and Federal Rule of Civil Procedure 37, Golden’s proposed testimony must

be excluded. For the reasons set forth below, plaintiff’s Motion is denied. 

II. GOLDEN’S PROPOSED TESTIMONY IS GENERALLY ADMISSIBLE UNDER

DAUBERT AND F.R.E. 702.9

A. Legal Standard

Federal Rule of Evidence 702 governs the “Testimony by Experts” as follows:

If scientific, technical, or other specialized knowledge will assist the trier of fact to

understand the evidence or to determine a fact in issue, a witness qualified as an

Case 2:05-cv-05686-JD Document 20 Filed 07/14/06 Page 3 of 8
 Federal Rule of Evidence 104(a) provides: “Preliminary questions concerning the 10

qualification of a person to be a witness, the existence of a privilege, or the admissibility of

evidence shall be determined by the court, subject to the provisions of subdivision (b) [pertaining

to conditional admissions]. In making its determination it is not bound by the rules of evidence

except those with respect to privileges.” These matters should be established by a preponderance

of proof. See Bourjaily v. United States, 483 U.S. 171, 175-176 (1987). 

4

expert by knowledge, skill, experience, training, or education, may testify thereto in

the form of an opinion or otherwise, if (1) the testimony is based upon sufficient

facts or data, (2) the testimony is the product of reliable principles and methods, and

(3) the witness has applied the principles and methods reliably to the facts of the case.

“Faced with a proffer of expert scientific testimony . . . the trial judge must determine

at the outset, pursuant to Rule 104(a), whether the expert is proposing to testify to (1) 10

scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in

issue.” Daubert v. Merrell Dow Pharms., 509 U.S. 579, 592 (1993). It is now well settled

that this gatekeeping function extends beyond scientific testimony to testimony based on

“technical” and “other specialized” knowledge. Kumho Tire Co., Ltd. v. Carmichael, 526

U.S. 137, 141 (1999). Engineering testimony, such as Golden’s, should be examined in light

of Daubert and Kumho Tire Co., Ltd. See Kumho Tire Co., 526 U.S. at 151 (“Engineering

testimony rests upon scientific foundations, the reliability of which will be at issue in some

cases.”). 

This Court must undertake a flexible inquiry to determine: (1) whether Golden is a

qualified expert in the area in which he is being offered as an expert; (2) whether Golden’s

proposed testimony is reliable; and (3) whether Golden’s testimony will assist the trier of

fact. Paoli R.R. Yard PCB Litig., 35 F.3d 717, 741-43 (3d Cir. 1994) (quoting Daubert, 509

U.S. at 595). “These requirements are succinctly referred to as: qualifications, reliability, and

fit.” Main St. Mortg., Inc. v. Main St. Bancorp., Inc., 158 F. Supp. 2d 510, 512 (E.D. Pa.

Case 2:05-cv-05686-JD Document 20 Filed 07/14/06 Page 4 of 8
5

2001). The party offering the expert, Qwest, must prove each of these requirements by a

preponderance of proof. In Re TMI Litig., 193 F.3d 613, 663 (3d Cir. 1999). 

B. Analysis

BP argues that Golden is not qualified to testify, his proposed testimony is unreliable,

and his testimony is irrelevant. The Court will examine these contentions in turn. 

1. Qualifications

BP argues that Golden does not qualify as an expert because “[t]here is no evidence

that he has any real experience in the fields of Architecture, Electrical Engineering,

Plumbing, Civil Engineering, Landscaping, Manufacturing and Retail Sales.” Pl. Br. at 4.

Qwest responds: (i) Golden has over thirty years experience as a professional engineer; (ii)

since 1988, he has maintained his own consulting practice; and (iii) he has been accepted as

an expert witness by the U.S. District Court of the Eastern District of Pennsylvania, and

Pennsylvania and New Jersey state courts. See Golden’s Curriculum Vitae, Def. Ex. D.

Qwest further argues that Golden is experienced in precisely the type of inspection and

analysis that he performed in this case. Specifically, Qwest points to the fact that Golden’s

experience includes: structural engineering for buildings and facilities from single family

dwellings to multistory, multifamily residential, commercial, and industrial buildings;

designing repairs and modifications to commercial and industrial buildings; performing

structural plan reviews for a township; monitoring and observing construction for owners

and municipalities; and conducting inspections on buildings for owners, buyers, lenders,

insurers, and attorneys for “due diligence,” building code conformity and structural damage.

Def. Mem. 6; Golden’s Curriculum Vitae, Def. Ex. D. 

Case 2:05-cv-05686-JD Document 20 Filed 07/14/06 Page 5 of 8
6

On the present state of the record, the Court concludes that Qwest has established by

a preponderance of the proof that Golden is qualified to testify in this case. 

2. Reliability

BP questions the reliability of Golden’s report, arguing that most of Golden’s

“conclusions” are either “mere restatement[s] of defendant’s factual allegations” or “pure

speculation, rather than conclusions based on scientific analysis.” Pl. Br. 4. In support of this

allegation, BP offers no evidence. Qwest responds that Golden’s report is based on his

review of the relevant documents, his own observations, and multiple inspections of the

physical premises. Def. Mem. 3, 5. 

On the present state of the record, the Court concludes that Qwest has established by

a preponderance of the proof that Golden’s proposed testimony is reliable. To contest

Golden’s conclusions, BP will have an opportunity to cross-examine Golden, offer rebuttal

testimony, and raise objections to inadmissible questions or evidence. 

3. Fit or Relevance

BP contends that the written lease required Qwest to accept the building in “as is”

condition, which makes Golden’s proposed testimony irrelevant. Pl. Br. at 4. In response,

Qwest argues that BP failed to fulfill its obligations under Section 10 of the lease, which

required BP to “substantially complete the construction of the improvements and work to the

Premises as is set forth on the List of Lessor’s Improvements and General Construction

Requirements.” Lease Agreement, Def. Ex. A, at 10; see also Def. Mem. 2. Qwest further

contends that Golden’s proposed testimony is relevant because it identifies the deficiencies

in BP’s work. Def. Mem. 6. 

Case 2:05-cv-05686-JD Document 20 Filed 07/14/06 Page 6 of 8
 This conclusion is without prejudice to BP’s right to object to any inadmissible 11

testimony or other evidence offered by Golden, including, but not limited to, evidence allegedly

barred under the terms of the lease agreement at issue.

7

The Court agrees with Qwest on this issue. Central issues in this case are, inter alia,

what obligations, if any, BP had under the lease agreement and the documents referred to as

the “Landlord’s Scope of Work” and the “Punch List,” and whether BP satisfied those

obligations. The Court concludes that, on the present state of the record, Qwest has

established by a preponderance of the proof that Golden’s proposed testimony will assist a

trier of fact in determining those issues. Thus, there is no basis for BP’s claim that Golden’s

proposed testimony is irrelevant. 

Because Qwest has met its burden of establishing that Golden is qualified, and his

proposed testimony is reliable and relevant, the Court will admit Golden’s proposed

testimony under Daubert, subject to BP’s right to object to any inadmissible testimony or

other evidence offered by Golden, including, but not limited to, evidence allegedly barred

under the terms of the lease agreement at issue. 

III. GOLDEN’S PROPOSED TESTIMONY IS GENERALLY ADMISSIBLE

UNDER FEDERAL RULE OF CIVIL PROCEDURE 37.11

BP’s final argument is that Golden’s proposed testimony should be excluded under

Federal Rule of Civil Procedure 37, which governs the “Failure to Make or Cooperate in

Discovery; Sanctions.” BP alleges that Qwest failed:

to provide plaintiff [BP] with the engineering drawings and information which were

reviewed by Mr. Golden, and formed the basis of his report. This information was

requested by Plaintiff in a timely manner, and the lack of this information has

prejudice [sic] Plaintiff’s ability to respond to Mr. Golden’s testimony at trial.

Pl. Br. 4-5. In support of this allegation, BP offers no evidence.

Case 2:05-cv-05686-JD Document 20 Filed 07/14/06 Page 7 of 8
8

Qwest responded to this allegation as follows:

Qwest has made available to plaintiff every document relied upon by Mr. Golden.

The plans and drawings referred to in Mr. Golden’s report were made available for

inspection pursuant to the Federal Rules of Civil Procedure. In fact, the depositions

of [two key witnesses] were conducted at the offices of Qwest, rather than at

counsel’s office, because plaintiff wanted the opportunity to review the original plans

and drawings in Qwest’s possession. Mr. Golden reviewed the same plans and

drawings, as well as those on file with the Township of Hatfield. Qwest is fully in

compliance with its discovery obligations and there is no basis for preclusion under

Rule 37. 

Def. Mem. 7. 

Thereafter, BP did not contest Qwest’s version of events by seeking leave to file a

Reply Brief or any other submission with the Court. Accordingly, on the present state of the

record, the Court concludes that Federal Rule of Civil Procedure 37 does not require the

exclusion of Golden’s proposed testimony. This ruling is without prejudice to BP’s right to

object to any inadmissible testimony or other evidence offered by Golden. 

IV. CONCLUSION

For the foregoing reasons, the Court concludes that the proposed testimony of

Stephen H. Golden is admissible under Daubert and Federal Rule of Evidence 37. The

Plaintiff’s Motion in Limine to Bar The Expert Testimony of Stephen H. Golden, P.E. is

denied. This ruling is without prejudice to BP’s right to object to any inadmissible

testimony or other evidence offered by Golden, including, but not limited to, evidence

allegedly barred under the terms of the lease agreement at issue. 

BY THE COURT:

/s/ Honorable Jan E. DuBois 

 JAN E. DUBOIS, J.

Case 2:05-cv-05686-JD Document 20 Filed 07/14/06 Page 8 of 8