Keller Indus. v. Eng'g & Constr. Innovations

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Keller Industrial, Inc., Plaintiff, v. Engineering & Construction Innovations, Inc., Fidelity and Deposit Company of Maryland, and Zurich American Insurance Company, Defendants.

No. 21-cv-2218 (ECT/JFD)

United States District Court, D. Minnesota

January 18, 2024

Kristine A. Kubes and Laurie W. Meyer, Kubes Law Office PLLC Minneapolis, MN, for Plaintiff Keller Industrial, Inc.

Paul Shapiro, Ernest F. Peake, and Patrick J. Lindmark, Taft Stettinius & Hollister LLP, Minneapolis, MN, for Defendants Engineer & Construction Innovations, Inc. Fidelity and Deposit Company of Maryland, and Zurich American Insurance Company.

OPINION AND ORDER

ERIC C. TOSTRUD, UNITED STATES DISTRICT COURT

This diversity case arises out of a January 2021 flood event. Defendant Engineering & Construction Innovations, Inc. (“ECI”) was the general contractor on a project to build a water main under the Mississippi River. When ECI's tunneling machine became stuck at the exit shaft it subcontracted Plaintiff Keller Industrial, Inc. to freeze the ground around the machine to prevent groundwater from entering the area and to enable ECI to retrieve the machine. Keller claimed to do its part, but a few weeks after ECI started working to retrieve the tunneling machine groundwater flooded the tunnel system. ECI refused to pay Keller for its work. Keller brought this six-count lawsuit, seeking payment for its ground-freeze work. ECI counterclaimed for breach of contract and negligence.

Several motions require a decision: cross-motions for partial summary judgment; ECI's motion to exclude expert testimony, in part, of Keller's three expert witnesses; and Keller's motion to exclude the expert testimony of ECI's engineering expert. The upshot is this:

• ECI's motion for partial summary judgment will be granted because Keller stipulated to the dismissal of Counts III and IV of the Amended Complaint.

• Keller's motion for partial summary judgment will be denied.

• Keller's motion to exclude the expert testimony of Dr. McGinn will be denied.

• ECI's motion to exclude, in part, the expert testimony of Dr. Auld will be mostly granted.

• ECI's motion to exclude, in part, the expert testimony of Erin Fallon will be granted.

• ECI's motion to exclude, in part, the expert testimony of Paul Wilkinson will be granted in part and denied in part.

I^[1]

The parties. ECI is “a full service heavy civil construction firm that specializes in infrastructure, marine, geotechnical and specialty construction projects.” About ECI, Engineering & Construction Innovations, Inc., http://eciconstructors.com/about (last visited Jan. 17, 2023). ECI is incorporated in Minnesota. Am. Compl. [ECF No. 23] ¶ 2; ECF No. 27 ¶ 2. Keller “provides solutions to a wide range of geotechnical challenges across the entire construction spectrum.” Solutions, Keller https://www.keller-na.com/expertise/solutions (last visited Jan. 17, 2024). Keller is a New Jersey corporation with its principal place of business in New Jersey. Am. Compl. ¶ 1. Fidelity and Deposit Company of Maryland's (“Fidelity”) state of incorporation and principal place of business are not clear from the record.^[2] Am. Compl. ¶ 3; ECF No. 26 ¶ 3. Defendant Zurich American Insurance Company (“Zurich”) is a New York corporation with a principal place of business in Illinois. Am. Compl. ¶ 4; ECF No. 26 ¶ 4. Fidelity and Zurich issued a payment bond identifying ECI as the principal. Am. Compl. ¶ 11; ECF No. 26 ¶ 11. Fidelity and Zurich are sureties of that payment bond. ECF No. 23-1 at 1-2.

The City of Minneapolis hires ECI to complete a microtunneling project. In 2019, the City hired ECI as the general contractor on the 10th Avenue Water Main River Crossing Project (the “Project”). ECF No. 62 ¶ 2. The Project involved the construction of an underground water main beneath the Mississippi River near downtown Minneapolis. Id. The City specified that the water main “should be constructed using microtunneling.” Id. ¶ 4. A launch shaft and retrieval shaft were constructed, the launch shaft located on the east bank of the Mississippi River and the retrieval shaft located on the west bank. Id. ¶ 5; ECF No. 90-1 at 307 (Marshall Dep. 55:12-14). A “microtunnel boring machine (the ‘MTBM'), shaped like a horizontal cylinder, was lowered into the launch shaft.” ECF No. 62 ¶ 5. “The ‘head' of the MTBM, a five-foot-diameter cutting tool, was oriented to face the direction of tunneling.” Id. Hydraulic jacks pushed the MTBM through the ground. Id. The MTBM broke down the subsurface and the subsurface material was pumped out of the tunnel system. Id. As the MTBM advanced underground from the launch shaft to the retrieval shaft, “the hydraulic jacks were periodically retracted, and a twenty-foot section of encased piping was installed behind the MTBM.” Id. ¶ 6. In theory, the process would repeat until the MTBM reached the retrieval shaft, leaving behind a completed, encased pipeline. Id. The following schematic illustrates the Project:

(Image Omitted)

Id. ¶ 7.

ECI initially hires a subcontractor to microtunnel, before taking over the process. ECI hired Bradshaw Construction Corporation (“Bradshaw”), “a microtunneling specialty contractor, to perform the Project's microtunneling” work. Id. ¶ 8. Bradshaw started microtunneling in November 2019. Id. For reasons unclear from the record, Bradshaw encountered problems and only advanced its MTBM a short distance in three months. Id. In February 2020, “ECI terminated Bradshaw at the direction of the City.” Id. ECI later submitted a proposal to self-perform the microtunneling work and started microtunneling in early August 2020. Id. ¶¶ 9-10.

The MTBM gets stuck. Within two weeks, the MTBM's head reached the retrieval shaft, “[b]ut ECI was unable to advance its MTBM into the retrieval shaft so that it could be recovered and extracted.” Id. ¶ 10. A reception seal had been installed in the retrieval shaft to receive the MTBM, ECF No. 90-1 at 105, but the MTBM arrived off-center and was stuck at the reception seal, id. at 212 (Umlauf Dep. 120:13-15), 302 (Marshall Dep. 33:3-15). Because the retrieval shaft was sealed from the subsurface, see Id. at 103-104, forcing the MTBM into the retrieval shaft risked groundwater intrusions into the tunnel system.

The dirt wing problem. The MTBM had “an antiroll fin or steering fin . . . that helped stabilize the machine.” ECF No. 90-1 at 137 (Johnson Dep. 95:14-16). The parties refer to this steering fin as the dirt wing. See, e.g., id. at 137 (Johnson Dep. 95:25-96:3). The dirt wing was designed to be retractable, but when the MTBM reached the retrieval shaft it would not retract. Id. at 137 (Johnson Dep. 95:8-20). This dirt wing contributed to the MTBM being stuck at the reception seal system, unable to advance further into the retrieval shaft. Id.; see also Id. at 318 (Marshall Dep. 100:7-14) (“if we were to try to push through our seal, it would tear the seal was our fear. So the goal was to try to extract the dirt wing to further advance the MTBM.”). In August 2020, ECI attempted to remove the dirt wing, resulting in groundwater inflows into the MTBM. Id. at 202 (Umlauf Dep. 78:15-19), 258 (Hogen Dep. 88:7-12). In August and early September 2020, while attempting to remove the dirt wing and stop groundwater inflows, ECI placed grout around the MTBM. Id. at 338 (Marshall Dep. 179:4-21), 259 (Hogen Dep. 89:3-14).

ECI subcontracts Keller to freeze the ground. To resolve these problems, ECI contracted Keller to design and install a “ground-freeze system in the area around the MTBM and the retrieval shaft.” ECF No. 62 ¶ 11. “The idea was that freezing the subsurface would enable ECI personnel to perform additional work . . . to advance the MTBM into the retrieval shaft” without groundwater or soil flowing into the tunnel system. Id. Keller created a preliminary ground-freeze design, ECF No. 90-1 at 30 (Sopko Dep. 47:16-21), drafted a ground-freezing proposal, and on October 6, 2021, sent a revised ground-freezing proposal to ECI. ECF No. 62-1 at 20-25. On October 12, 2021, Keller and ECI executed a subcontractor agreement (the “Subcontract”) for Keller to design, furnish, and install a “frozen soil system for temporary ground stabilization and ground water control.” Id. at 13, 20. Keller's responsibilities included “[t]he installation and oversight of the ground freeze system in accordance with [Keller's] proposal dated October 6, 2020.” Id. at 13. ECI was responsible for furnishing, drilling, and installing the ground-freeze pipe described more fully in the next paragraph. Id.

Keller's ground-freeze design. Keller's ground-freeze design included several components. Keller proposed installing 30 freeze pipes drilled to 120 feet deep. ECF No. 90-1 at 7. Freeze pipes are steel pipes drilled into the ground. ECF No 90-1 at 194 (Umlauf Dep. 45:3-4). The freeze pipes are then connected to a freeze plant, which cools and circulates liquid brine through the freeze pipes. ECF No. 90-1 at 52 (Sopko Dep. 139:6-11), 8. Over time, as the chilled liquid brine circulates through the freeze pipes, heat is extracted from the surrounding earth, lowering the ground temperature around the freeze pipes. Id. at 6. The goal of lowering the ground temperature is to form a frozen mass. Id. at 48 (Sopko Dep. 122:19-23). Here, the frozen mass was to be formed around the MTBM and retrieval shaft. Id. Various temperature sensors would monitor the freeze. Temperature monitoring pipes are pipes drilled into the ground, filled with calcium chloride brine. Id. at 50 (Sopko Dep. 132:1-12). A beadedstream is installed in the temperature monitoring pipes—a wire with temperature sensors reporting data at different depths along the pipe. Id. at 50 (Sopko Dep. 132:1-133-25), 51 (Sopko Dep. 134:17-...