Twin K Constr., Inc. v. UMA, Geotechnical Constr., Inc.

597 F.Supp.3d 1204

TWIN K CONSTRUCTION, INC., Plaintiff,

v. UMA, GEOTECHNICAL CONSTRUCTION, INC., Defendant,andClay Bright, in his official capacity as Commissioner of Tennessee Department of Transportation (TDOT), Third-Party Nominal Defendant.

No. 3:21-CV-74-DCP

United States District Court, E.D. Tennessee, Northern Division, at Knoxville.

Filed April 11, 2022

Mariel Cooper, Brian C. Quist, Quist, Fitzpatrick & Jarrard, PLLC, Knoxville, TN, for Plaintiff.

Christopher S. Dunn, Joseph Landon Watson, W. Travis Parham, Waller, Lansden, Dortch & Davis, LLP, Kevin Elkins, Epstein Becker & Green, P.C., Nashville, TN, Joseph Paul Gram, Conner Gwyn Schenck PLLC, Greensboro, NC, for Defendant.

MEMORANDUM AND ORDER

Debra C. Poplin, United States Magistrate Judge

This case is before the undersigned pursuant to 28 U.S.C. § 636(c), Rule 73(b) of the Federal Rules of Civil Procedure, and the consent of the parties, for all further proceedings, including entry of judgment [Doc. 20].

Now before the Court is Plaintiff's Motion to Limit Testimony of UMA's Expert Marvin House [Doc. 51]. Defendant filed a response in opposition [Doc. 52], and Plaintiff replied [Doc. 60]. The parties addressed the motion at the pretrial conference on March 31, 2022. Attorneys Brian Quist and Mariel Cooper appeared on behalf of Plaintiff. Attorney Joseph Gram appeared on behalf of Defendant. Attorney Joseph Watson appeared on behalf of Defendant via video conference. Attorney Melissa Brodhag appeared via video conference on behalf of Tennessee Department of Transportation ("TDOT"), a nominal party in this action. Accordingly, for the reasons explained below, the Court GRANTS IN PART AND DENIES IN PART Plaintiff's Motion [Doc. 51 ].

I. BACKGROUND

Defendant retained Marvin House ("House") to render an opinion on whether the delays associated with the project were the responsibility of the general contractor, Plaintiff, or the slope reinforcement subcontractor, Defendant. House is a licensed professional engineer in many states, including Tennessee. [Doc. 51-1 at 31]. House has served as a project manager on various projects throughout the years, and he is currently the Chairman and Chief Executive Officer of Merit Construction, Inc., and the President and Owner of Professional Construction Consulting, Incorporated [Id. ]. House is currently a member of several organizations, including Member of American Concrete Institute ("ACI"), Member of National Society of Professional Engineers ("NSPE"), the International Association of Concrete Repair Specialists ("IACRS"), and the Association of Construction Inspectors ("ACI") [Id. at 33].

In his expert report, House provides the project history and highlights certain portions of the parties’ subcontract [Id. at 6]. In addition, House outlines the various discussions the parties and TDOT engaged in regarding the appropriate schedule for the completion of the work and the different schedules the parties exchanged. [Id. at 8]. House explains that the process of constructing a soil nailed retaining wall (the wall that Defendant was hired to build) as follows:

Construction of a soil nailed retaining wall involves several distinct processes that must be sequenced and carefully coordinated to achieve efficient installation. The general processes of soil nailed wall construction are:

1. Excavation of a limited portion of the wall face by the General Contractor.

2. Drilling near-horizontal holes for the nails.

3. Inserting the steel reinforcing bars.

4. Grouting to fill the holes and encapsulate the bars.

5. Wall face prep–setting the face re-steel and vertical drain materials.

6. Applying shotcrete to the wall face (typically in two layered applications).

[Id. at 9].

House continues as follows:

It is essential that the sequence and timing of these processes be controlled. Excavated wall face will fail if nailing lags far behind; holes collapse if not grouted soon after drilling; shotcrete must be applied and set before the next bench is excavated. The general contractor Twin K was responsible for all excavating on the project. The drilling, grouting, wall prep, and shotcrete are typically performed by the geotechnical contractor. The ready-mix supplier (which in this case was the General Contractor Twin K) also fills a critical role in timely delivery of shotcrete. In a well-choreographed operation, the resources assigned to each process is balanced so the wall construction moves at a fairly uniform rate without any process running ahead or lagging behind. Of course, there are many factors that disrupt this ideal flow of work, e.g., weather, poor communication, inadequate resources, unforeseen site conditions, poor bench support issues or simple lack of cooperation between parties.

[Id. at 9-10]. House also reviewed the daily production reports of Defendant and TDOT and opines that some of the conditions that affected production include the following:

1. The supplier of shotcrete, Twin K contributed to production delays and inefficient sequencing.

a. Daily reports cite significant shotcrete delivery delays or non-availability on at least 10 days.

2. The bench support on numerous occasions was insufficient and not corrected by Twin K.

3. Diversion ditches were requested by UMA to control surface water and were not installed by Twin K.

4. UMA requested rock support numerous times for their equipment as well as concrete truck delivery. Twin K was contractually responsible for bench maintenance and site access, but was often unavailable to provide this critical support.

5. Rain and drying days accumulated throughout the project but were not added to the construction time.

[Id. at 10].

After reviewing the relevant documents, House opines that Defendant is not responsible for the number of delays as Plaintiff has alleged [Id. at 12]. House states, "Given that the UMA proposal provided on 6/21/19 was not schedule driven or date committed and only stated ‘... sufficient time to complete the project as described above,’ this does not give Twin K the right to pass the contract completion requirements solely to UMA." [Id. ]. House further opines, "It appears that Twin K ‘assumed’ up until February 2020 they [sic] would be granted time extensions to an emergency project, which they [sic] knew could not be completed in the time allotted by TDOT." [Id. ]. House concludes that while Defendant was responsible for 11 days, the remaining delays were Plaintiff's responsibility [Id. ].

In addition, House reviewed the change order that Defendant submitted to Plaintiff [Id. at 13]. After reviewing the project records, House opines that the second delay was Plaintiff's responsibility because Plaintiff elected to perform the added end of wall redesign work themselves and not switch traffic [Id. at 13]. House reasons that TDOT records show that the traffic was not shifted much until later, and therefore, Defendant could not access the area to install the upper drains [Id. ]. House also states that there is no documentation explaining why Plaintiff delayed this work, and therefore, Plaintiff should be held responsible for the cost to hold idle equipment at the site for 113 days [Id. ].

With respect to the issue regarding the "Secondary Wall Re-design," House states that the only reason a redesign was necessary was due to Plaintiff's poor planning of the excavation and grading, which pursuant to the subcontract, was Plaintiff's responsibility [Id. at 13]. House states that Defendant's design for the wall shows a taper at each end, but Plaintiff ignored the designed end of wall transitions when it excavated access ramps too close to the ends of the secondary wall [Id. ]. House further explains that when Plaintiff excavated the site, the walls were not there, but Plaintiff was responsible for the surveying and layout of the site and should have left space for the wall transactions [Id. ]. House summarizes a letter from Plaintiff to TDOT regarding the issues with the ends of the wall and documentation from TDOT, stating, "Twin K acknowledged during the meeting that there has been some additional excavation on the east end of the wall and their haul road was placed at the west end of the wall. This additional excavation at the wall ends resulted in altered site topography that was not accounted for on the approved wall plans." [Id. at 15]. House explains that Plaintiff hired an engineer firm that submitted a report stating that the "as-built contours were found to be different than the existing ground contours shown on UMA's drawings." [Id. ]. House concludes that the delay time and costs for the redesign were not due to Defendant's design but instead incurred as a result of Plaintiff's errant excavation at the wall ends. [Id. ].

II. STANDARD OF REVIEW

" Federal Rule of Evidence 702 obligates judges to ensure that any scientific testimony or evidence admitted is relevant and reliable." Kumho Tire Co., Ltd. v. Carmichael , 526 U.S. 137, 147, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) (quoting Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 589, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) ). Specifically, Rule 702 provides as follows:

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 if:

(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.

In Daubert , the Supreme Court of the United States stated that a district court, when evaluating evidence proffered under Rule 702, must act as a gatekeeper, ensuring "that any and all scientific testimony or evidence admitted is not only relevant, but reliable." 509 U.S. at 589, 113 S.Ct. 2786. The Daube...