Plaintiff filed suit over an excavation related to a construction project. One company, DBM hired four experts to testify on their behalf. Motions were filed to exclude these experts. The motions were denied.
Facts: This case (United States of America for the use of Donald B. Murphy Contractors v. Travelers Casualty and Surety Company of America et al – United States District Court – District of Nebraska – June 30th, 2017) involves an excavation related to a construction project at Offutt Air Force Base in the vicinity of Omaha, Nebraska. The prime contractor of the construction project was KiewitPhelps and numerous subcontractors were hired as well. The issue in this case is claims for costs related to impact and delay. DBM has hired Steve Stylos (risk management expert witness) and John Elmer (construction expert witness) to testify about the measured mile quantification method. In addition, DBM has also hired Robert Middour (geology expert witness) to opine on the topic of dewatering and Paul Pederson (forensic accounting expert witness) to testify on pricing methodology and to analyze the alleged damages to KiewitPhelps. These three experts were challenged under Daubert.
Discussion: Trevi and KiewitPhelps have filed a motion to exclude the testimony of Stylos and Elmer regarding the measured mile quantification (MMQ) of lost-productivity costs. They allege that Stylos and Elmer relied on unreliable and incorrect assumptions when coming to their conclusions. In addition, they argue that Mr. Elmer’s opinion should be excluded because he did not perform an independent analysis, relying instead on analyses from Stylos and other DBM personnel. Last, they claim that Stylos can’t be objective because he is a former DBM employee.
The court disagreed with Trevi and KiewitPhelps by stating that Elmer and Stylos are qualified, based on their education and experience to testify as experts related to MMQ and lost productivity damages. Any argument against their qualifications go to the weight of the evidence rather than to the admissibility.
The court also opined that DBM has shown that the methodology used is widely accepted in the construction industry. In addition, both Stylos and Elmer visited the site at issue, interviewed people, and reviewed the relevant literature, reports and documents. The court also ruled that any critique of the methodology is best pursued on cross-examination. Thus, the court denied the motion to exclude the testimony of Stylos and Elmer.
KiewitPhelps and Travelers allege that Robert Middour’s testimony should be excluded because he did not account for the Missouri River and the impact on the water table in his first model. In addition, they argue that Middour’s second model is irrelevant. The court opined that these arguments go to the weight of the testimony. The court also concluded that Middour qualifies as an expert due to his education and experience.
In addition, the court allowed the expert witness testimony of Paul Pederson.
Conclusion: The motions to exclude the experts hired by DBM were denied