Agri-Systems v. Structural Techs.

1

AGRI-SYSTEMS, a Montana corporation, d/b/a ASI Industrial, Plaintiff, v. STRUCTURAL TECHNOLOGIES, LLC, a Maryland limited liability company, Defendant.

Civil Action No. 19-cv-02238-CMA-STV

United States District Court, D. Colorado

May 16, 2023

ORDER DENYING DEFENDANT'S “MOTIONS IN LIMINE”

CHRISTINE M. ARGUELLO, Senior United States District Judge.

This matter is before the Court on three motions to exclude expert testimony filed by Defendant/Counter Claimant Structural Technologies, LLC (“Structural”): (1) “Structural Technologies, LLC's Motion in Limine to Disqualify Matthew Hamlin from or Precluding him from Testifying as an Expert Witness” (Doc. # 92) (2) “Structural Technologies, LLC's Motion in Limine to Exclude Expert Testimony from Steven Bjordahl” (Doc. # 93); and (3) “Structural Technologies, LLC's Motion in Limine to Exclude Expert Testimony from Matthew Blackmer or to Disqualify Matthew Blackmer as an Expert Witness” (Doc. # 94). For the following reasons, the Motions are denied.

I. BACKGROUND

This is a construction contract case. The case centers around the design and construction of a silo facility in Eaton, Colorado (“the Project”). Plaintiff/Counter Defendant Agri-Systems, d/b/a ASI Industrial (“ASI”) contracted to build the silos using a slipform concrete construction method where concrete is poured in a single continuous pour as the form/mold moves vertically upward. (Doc. # 31 at ¶¶ 7-8.) The strength of the silos comes from reinforcing steel imbedded in the concrete during construction. (Id. at ¶ 9; Doc. # 91 at 8-9.) ASI subcontracted with Structural to provide “unbonded posttensioning tendons . . . and anchors” as well as related placement drawings, supervision, labor, and equipment. (Doc. # 120 at 2.)^[1] This post-tensioning work was to begin at an elevation of 140 feet (40 feet above the foundation) in the silos. (Id.)

Post-tensioning reinforcing steel must be accessible after the concrete is cured so that it can be stressed. (Doc. # 120-1 at 411); see also (Doc. # 91 at 9.) To do this in the instant Project, bulkheads with predefined hole configurations were to be fed into the slipform at designated heights. (Doc. # 120-1 at 411.) These bulkheads were designed to remain at their designated elevations in the face of the concrete as the slipform continued to rise vertically. (Id.) see also (Doc. # 91 at 8-9.)

During construction, issues arose with the first row of bulkheads to which Structural was to install the ends of the post-tension tendons, resulting in the bulkheads ending up several feet above the elevation where they should have started. (Doc. # 120 at 26-27, 46, 49-51, 303); see also (Doc. # 91 at 9; Doc. # 97-23 at 1; Doc. #97-31 at 2.) Structural argues that these issues resulted in additional complications-creating a type of domino effect-as the slipform continued to rise vertically, resulting in its inability to complete its work as outlined by the subcontract. (Doc. # 91 at 9-13; Doc. # 120 at 36-38; 49-50); see also (Doc. # 93 at 2.) ASI, however, counters that “the effect of the bulk heads [sic] moving is limited to elevations less than 5' above the start of the post tensioning system[, and if Structural] had installed strands in the bulkheads . . . little to no repairs to the silos would have been necessary. (Doc. # 120 at 148.) In other words, this case revolves around determining who was at fault for construction deviating from the plans and which party is responsible for repairs. (Doc. # 2; Doc. # 31 at ¶¶ 21-54); see also (Doc. # 93 at 2); (Doc. # 100 at 14.)

ASI filed this lawsuit in Colorado state court on July 11, 2019 (Doc. # 1-1), and on August 7, 2019, Structural removed the case to Federal Court (Doc. # 1). ASI's Amended Complaint asserts four claims for relief: (1) breach of contract, (2) breach of warranty, (3) professional negligence, and (4) negligent misrepresentation. (Doc. # 31 at ¶¶ 28-54.) On August 7, 2019, Structural also asserted one counterclaim for breach of contract against ASI. (Doc. # 2 at 8-13.)

Both sides retained a number of experts. On November 23, 2022, Structural filed the instant Motions seeking to disqualify ASI's disclosed experts Steven Bjordahl, Matthew Hamlin, and Matthew Blackmer and/or exclude their testimony pursuant to Federal Rules of Evidence 702. See generally (Docs. ## 92-94.) The motions have been fully briefed. (Docs. ## 98-100, 111.)

II. LEGAL STANDARDS

Federal Rule of Evidence 702 provides that “[a] witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise.” Fed.R.Evid. 702. Before the expert can offer such opinions, however, the proponent of the testimony must demonstrate, by a preponderance of the evidence, that the expert's testimony is admissible. United States v. Nacchio, 555 F.3d 1234, 1241 (10th Cir. 2009); United States v. Crabbe, 556 F.Supp.2d 1217, 1220-21 (D. Colo. 2008). To do so, the proponent must establish that “(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.” Fed.R.Evid. 702. The trial court acts as a “gatekeeper,” reviewing the proffered opinions for both relevance and reliability before determining whether the evidence is admissible under Rule 702. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147 (1999); see also Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589-95 (1993); Goebel v. Denver & Rio Grande W. R.R. Co., 215 F.3d 1083, 1087 (10th Cir. 2000). The overarching purpose of the court's inquiry is “to make certain that the expert . . . employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Goebel, 346 F.3d at 992 (quoting Kumho Tire, 526 U.S. at 152).

Generally, “rejection of expert testimony is the exception rather than the rule.” United States v. Nacchio, 519 F.3d 1140, 1154 (10th Cir. 2008), vacated in part on rehearing en banc, 555 F.3d 1234 (10th Cir. 2009); see also Fed.R.Evid. 702, advisory committee's notes to 2000 amendments. “Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.” Daubert, 509 U.S. at 596.

III. DISCUSSION

A. STEVEN BJORDAHL

Mr. Bjordahl is an engineer licensed in 27 states with 32 years of experience working as a professional or structural engineer. (Doc. # 120-1 at 104-07.) He has been employed as a structural engineer with ASI since November 2011. (Id. at 107.) His first project involving designing or building in the slipform method was in 2011 or 2012 (Doc. # 97-5 at 4.) Mr. Bjordahl was the engineer of record on the Project at issue in this litigation. (Id. at 5-6; Doc. # 120 at 181.) Mr. Bjordahl's report purports to:

1. Determine the highest elevation in a silo for which the original design intent is achieved without structural repairs given the following two assumptions: a. all strands below are unusable and b. all strands at or above are usable.

2. Identify the lowest usable strand elevation in each bulkhead array. Then, using the assumption that all strands in that bulkhead array at or above that elevation are usable, determine which silos, if any, would fail to achieve the original design intent of the PT reinforcing.

3. Holding to the usable strand assumption of Assignment 2, design a concrete repair lining which would result in substantial compliance with the original design intent for each silo identified in Assignment 2 as failing to achieve the design intent.

(Doc. # 120-1 at 109.)

Structural makes four arguments as to why Mr. Bjordahl should not be qualified as an expert and his testimony should be excluded. The Court will address each in turn.

1. Prior Qualification as an Expert Witness

First, Structural argues that Mr. Bjordahl is not qualified to provide expert testimony because he has never been qualified as an expert witness previously. (Doc. # 93 at 6); see also (Doc. # 120 at 180.) ASI counters that lack of prior qualification as an expert witness is only one factor courts consider when determining if someone is qualified to testify as an expert. (Doc. # 100 at 8); Vaughn v. Safeway, Inc., No. 14-cv-01066-REB-NYW, 2015 WL 7307936, at *2 (D. Colo. Nov. 20, 2015).

The Court agrees that Mr. Bjordahl is qualified to testify in the area of structural engineering by “knowledge, skill, experience, training, or education.” Fed.R.Evid. 702. Mr. Bjordahl's curriculum vitae shows substantial education and knowledge in the field of structural engineering and in the specific type of construction at issue in this litigation. (Doc. # 97-31 at 24-27; Doc. # 120-1 at 104-07.) As this Court explained in Vaughn,

There is no legal requirement that an expert have previous experience testifying as an expert witness. Of course, such a requirement would eliminate the possibility that a person otherwise qualified as an expert ever could testify as an expert for the first time. Prior expert testimony is just one of many factors which may be considered when assessing qualifications.

2015 WL 7307936, at *2. The Court concludes that, in the context of Mr. Bjordahl's knowledge and experience, his lack of prior qualification as an expert witness does not preclude his qualification in this case.

2. Bias Due to Employment by ASI

Second Structural asserts that Mr. Bjordahl should not be qualified as an expert in this case beca...