Magnus Pacific Corporation v. United States ( 2016 )

In the United States Court of Federal Claims
No. 13-859 C
(Filed July 21, 2016)
UNPUBLISHED
* * * * * * * * * * * * * *
MAGNUS PACIFIC CORP., *
*
Plaintiff, * Motion In Limine; Relevance of
* Expert Opinion; Scope of CDA
v. * Claim.
*
THE UNITED STATES, *
*
Defendant. *
* * * * * * * * * * * * * *
Daniel L. Baxter, Sacramento, CA, for plaintiff.
A. Bondurant Eley, United States Department of Justice, with whom were
Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Robert E.
Kirschman, Jr., Director, Martin F. Hockey, Jr., Assistant Director, Reta E. Bezak,
Trial Attorney, Washington, DC, for defendant.
________________________
OPINION
________________________
Bush, Senior Judge.
On June 10, 2016 defendant filed a Renewed Motion In Limine to Exclude
the Expert Testimony of Champ Clark and Portions of the Expert Report and
Testimony of George Sills. This motion has been fully briefed on an expedited
basis. See Order of June 13, 2016. The court also solicited oral argument on the
motion. See Order of June 28, 2016. Defendant’s motion requests that the court
exclude the entirety of the “intended expert testimony” of Mr. Clark from the
evidence to be considered in this matter, and exclude a significant portion of Mr.
Sills’ expert report and proposed testimony. Def.’s Mot. at 2. Although a very
similar motion was denied in its entirety on December 22, 2015, largely because
the dispute was not fully developed at that time, the court now grants defendant’s
renewed motion in limine, in part.1
The government’s challenge to the expert testimony of Mr. Clark and Mr.
Sills, and to the content of Mr. Sills’ expert report, is fundamentally a relevance
challenge. The reliability of plaintiff’s experts is not challenged. Cf. Kumho Tire
Co. v. Carmichael, 526 U.S. 137, 141 (1999) (stating that expert “testimony is
admissible only if it is both relevant and reliable” (citing Daubert v. Merrell Dow
Pharms., Inc., 509 U.S. 579 (1993))). In particular, defendant suggests that the
challenged expert opinions “have no nexus to the certified claims and contracting
officer’s final decisions that establish the jurisdictional basis for this lawsuit.”
Def.’s Mot. at 2. It is also important to note that this evidentiary dispute concerns
only two of the three contracting officer (CO) final decisions that underlie this suit
arising from a levee restoration project in Texas – decisions on the ‘embankment
fill claim’ and the ‘riprap claim.’2
BACKGROUND
This is a suit brought under the Contract Disputes Act of 1978, 41 U.S.C.
§§ 7101-7109 (2012) (CDA). Am. Compl. ¶¶ 15, 20. The parties agree that in
2010 plaintiff and the United States Section of the International Boundary and
Water Commission (Commission or IBWC) entered into a “lump-sum” contract
whereby Magnus Pacific Corporation (Magnus or Magnus Pacific) would perform
restoration work on a levee near Presidio, Texas. Id. ¶ 5; Def.’s Mot. at 1; Pl.’s
1
/ Background information regarding this dispute is discussed in the court’s Order of
December 22, 2015; familiarity with that order is assumed. Only the facts most relevant to
defendant’s evidentiary objections are recounted here.
2
/ According to the amended complaint, “[e]mbankment fill is earthen material used to
assist in supporting the impermeability of a levee [and] [r]iprap is rock or similar material used to
armor shorelines, streambeds, and levees.” Am. Compl. at 2 n.1.
2
Resp. Ex. 1, at 1. The two claims in the amended complaint which are addressed
in plaintiff’s disputed expert testimony are summarized differently by the parties,
although the differences are not material to the issues before the court at this time.
The embankment fill claim is described by defendant as a claim for “$3,186,212
for the removal and replacement of allegedly unsuitable fill material that Magnus
claims to have discovered unexpectedly in the levee subgrade.” Def.’s Mot. at 1.
The riprap claim is described as a claim for “$607,575 in connection with
supplying and placing riprap on the levee.” Id. Plaintiff collectively describes
these two claims as
claims [which] arise out of the Government’s directive
for Magnus Pacific to remove and replace embankment
fill material and riprap material, respectively,
which removal and replacement was (a) not included
within the scope of work called for by the underlying
contract documents, and (b) never compensated by the
Government despite repeated assurances that such
payment would be forthcoming.
Pl.’s Resp. Ex. 1, at 1.
DISCUSSION
Defendant contends that the challenged expert opinions “present a grab bag
of allegations that have no connection to the matters that Magnus ever put at issue
in the certified claims that it submitted to the contracting officer, and that
Magnus has now identified as the subject matter of this trial.” Def.’s Mot. at 6. In
other words, according to the government “the challenged evidence is wholly
irrelevant to the subject matter of the certified claims and contracting officer’s
final decisions, and affirmatively seeks to encourage this Court to decide this
case on an improper basis, i.e., a basis other than what was presented to the
contracting officer for decision.” Def.’s Reply at 4. Plaintiff responds that its
experts offer opinions relevant to Magnus Pacific’s contention that “the project
solicitation documents issued by the IBWC were inadequate to place a reasonable
bidder on notice of the actual conditions attending to the Lower Reach project.”
Pl.’s Sur-Reply at 2 (citing Randa/Madison Joint Venture III v. Dahlberg, 239
F.3d 1264, 1269-[77] (Fed. Cir. 2001)). Plaintiff also argues that its experts’
3
testimony is relevant to “Establishing that Magnus Pacific[’s] Performance of
Additional Work Was Authorized and Directed by the Government.” Id. at 4.
The dispute before the court focuses on a one-page summary of seven
expert opinions of Mr. Clark and on twenty-eight opinions expressed by Mr. Sills
throughout his expert report. See Def.’s Mot. at 6-9, Corrected App. at 2.
Defendant has also proposed a “red-lined” version of Mr. Sills’ expert report
which attempts to excise irrelevant opinion. See id. Corrected App. Tab 2. The
court will return to these expert opinions, but begins its analysis by addressing the
certified claims presented to the contracting officer which define the permissible
scope of plaintiff’s CDA claims before this court.
I. Scope of Plaintiff’s Embankment Fill and Riprap Claims
A. Embankment Fill Claim
1. The Certified Claim and CO’s Final Decision
As of October 19, 2012, the title of the embankment fill certified claim was
“Request for Change Order – Removal of Unsuitable Levee Fill and Placement of
Additional Embankment Fill.” Def.’s Mot. Corrected App. at 56. Subsequently,
as of June 4, 2013, the title of the claim was changed to “Request for a Change
Order for the Removal of Unsuitable Embankment Fill, Trucking and Disposal of
Slurry Wall Workpad Degrade Material and Import and Trucking of Slurry Wall
Workpad Embankment Fill dated October 19, 2012.” Id. at 55. The amount
requested by Magnus to be included in the change order was $3,186,212. Am.
Compl. ¶ 10. The certified claim specifically mentioned the term “differing site
condition,” Def.’s Mot. Corrected App. at 58, and thus invoked recovery under the
“Differing Site Conditions” clause of the contract, id. at 315, and caselaw relevant
to that theory of recovery.
There was no mention of an implied-in-fact contract or of an oral contract in
the embankment fill certified claim. There was also no articulation of a defective
design claim or a defective plans and specifications claim in the embankment fill
certified claim. There was, however, an allegation that the work encompassed in
the embankment fill certified claim was “not a contract requirement.” Def.’s Mot.
Corrected App. at 58.
4
The contracting officer’s final decision on the embankment fill certified
claim denied the claim in its entirety. Def.’s Mot. Corrected App. at 208. The CO
did not affirm or deny that Magnus encountered a differing site condition. Instead,
the CO found fault with numerous aspects of the embankment fill certified claim –
its timing, the failure of Magnus to comply with contract specifications relevant to
embankment fill, and the failure of Magnus to accurately measure the amount of
additional embankment fill required. Id. at 209-10. The CO also specifically
addressed whether Magnus had been directed to perform work outside of the
contract requirements, and concluded that no such direction had occurred. Id. at
209.
2. Scope of Embankment Fill CDA Claim
Based on a review of the embankment fill certified claim, the contracting
officer’s final decision on the claim, and the parties’ arguments in this regard, the
court finds that the certified claim included an explicit differing site conditions
claim as well as an implicit constructive change claim, expressly recognized and
addressed by the CO, for additional work ordered outside the contract
requirements. The constructive change claim derives from the Changes clause
included in this contract, Def.’s Mot. Corrected App. at 316, and caselaw relevant
to that theory of recovery. Beyond these two theories of recovery, i.e., differing
site conditions and constructive change, the court cannot read the embankment fill
certified claim to specifically articulate an implied-in fact contract claim, an oral
contract claim, a defective design claim, or a defective plans and specifications
claim.
As the court noted in its Order of December 22, 2015, however,
determining the permissible scope of a CDA claim can present numerous
challenges. Of particular importance here, a contractor may not be strictly limited,
in a suit before this court, to the legal theories presented to the CO. See, e.g., E &
E Enters. Glob., Inc. v. United States, 120 Fed. Cl. 165, 173-77 (2015) (E & E
Enterprises) (discussing precedent on this topic). The court inquired at oral
argument whether the certified claims before the contracting officer could be read
to encompass, for example, a defective plans and specifications claim. The
government discerned no such claim in the certified claim presented by Magnus to
the CO, and plaintiff’s counsel conceded that a distinct defective plans and
specifications claim was not articulated in the certified claims, although defective
5
plans and specifications were certainly implicated in the context of alleged
differing site conditions. The court must inquire, nonetheless, whether the
operative facts of plaintiff’s differing site conditions claim in the embankment fill
certified claim contained sufficient overlap with a defective plans and
specifications claim to provide jurisdiction in this court for an embankment fill
claim founded on alleged defective plans and specifications. See Scott Timber Co.
v. United States, 333 F.3d 1358, 1365 (Fed. Cir. 2003) (holding that a certified
claim provides jurisdiction in this court for claims which “arise from the same
operative facts, claim essentially the same relief, and merely assert differing legal
theories for that recovery”).
For this contract, at least some of the plans and specifications for levee
restoration would necessarily be implicated by the operative facts pertinent to a
Type I differing site conditions claim. The elements of proof for a Type I differing
site conditions claim are as follows:
In order to prevail on such a site conditions claim, a
contractor must establish four elements. First, the
contractor must prove that a reasonable contractor
reading the contract documents as a whole would
interpret them as making a representation as to the site
conditions.
Second, the contractor must prove that the actual site
conditions were not reasonably foreseeable to the
contractor, with the information available to the
particular contractor outside the contract documents, i.e.,
that the contractor “reasonably relied” on the
representations. . . .
Third, the contractor must prove that the particular
contractor in fact relied on the contract
representation. . . .
Fourth, the contractor must prove that the conditions
differed materially from those represented and that the
contractor suffered damages as a result . . . .
6
Int'l Tech. Corp. v. Winter, 523 F.3d 1341, 1348-49 (Fed. Cir. 2008)
(International Technology) (citations omitted). These elements of proof must be
compared to the elements of proof for a claim based upon defective plans and
specifications, to see if there is significant overlap in operative facts. Scott
Timber, 333 F.3d at 1365.
To recover under a defective plans and specifications theory, the elements
of proof are as follows:
[W]here a contractor-claimant seeks to recover an
equitable adjustment for additional work performed on
account of a defective specification, the
contractor-claimant must show that it was misled by the
defect. To demonstrate that it was misled, the
contractor-claimant must show both that it relied on the
defect and that the defect was not an obvious omission,
inconsistency or discrepancy of significance, – in other
words, a patent defect – that would have made such
reliance unreasonable.
E.L. Hamm & Assocs., Inc. v. England, 379 F.3d 1334, 1339 (Fed. Cir. 2004). In
some CDA litigation, the operative facts of Type I differing site conditions claims
presented to the CO and defective specifications claims presented to the forum do
not significantly overlap; in such a circumstance, jurisdiction over the defective
specifications claim will not lie. E.g., Kiewit Constr. Co. v. United States, 56 Fed.
Cl. 414, 421 (2003); Optimum Servs., Inc., ASBCA No. 57575, 13 B.C.A.
¶ 35,412 (Sept. 10, 2013). Here, however, for the embankment fill claim, theories
of recovery based on defective plans and specifications or on a differing site
condition rely on a significant set of common operative facts. When a differing
site condition claim relates to earthwork and cubic yards of soil or fill, defective
specifications that describe the earthwork may constitute an important operative
fact.3 See, e.g., Ace Constructors, Inc. v. United States, 499 F.3d 1357, 1365 (Fed.
3
/ In some factual scenarios, a defective specifications claim cannot proceed because the
contract’s Differing Site Conditions clause provides the only permissible theory of recovery. If,
for example, the only alleged defect in contract documents is a failure to disclose a differing site
(continued...)
7
Cir. 2007) (The government does not dispute that this discrepancy [underlying a
differing site conditions earthwork claim] was the result of a defective
specification . . . .”). For these reasons, expert opinion as to alleged defective
plans and specifications is not necessarily irrelevant to Magnus Pacific’s
embankment fill claim. See Scott Timber, 333 F.3d at 1365.
The court, however, rejects any attempt to broaden the scope of the
embankment fill claim to include a defective design claim. Plaintiff has not
shown, and the court cannot postulate, how a defective design claim shares any
operative facts with a differing site conditions claim under the present
circumstances. Furthermore, plaintiff’s arguments regarding the relevance of
defective design evidence to be provided by Mr. Sills appear to relate to defective
plans and specifications, rather than to defective design. See Pl.’s Resp. Ex. 1, at 5
(stating that plaintiff should be able to recover for Commission-directed changes
to contract work, and that plaintiff should have been able to rely on data provided
in contract documents). For these reasons, the court holds that expert opinion as
to defective design is not relevant to plaintiff’s embankment fill claim.
Finally, the court notes that nothing in the embankment fill certified claim
alerted the CO to an allegation that Magnus Pacific’s claim was founded on an
implied-in-fact contract or an oral contract, rather than on the written, express
contract executed by the parties, or constructive changes thereto. This court has
held that a contractor may not introduce an implied-in-fact claim into CDA
3
(...continued)
condition, the Differing Site Conditions clause controls:
Although differing site conditions and defective specifications
claims are distinct in theory, they collapse into a single claim under
facts such as these, where the alleged defect in the specification is
the failure to disclose the alleged differing site condition. Where
the differing site conditions claim and the defective specifications
claim are so intertwined as to constitute a single claim, that claim
will be governed by the specific differing site conditions clause and
the cases under that clause.
Comtrol, Inc. v. United States, 294 F.3d 1357, 1362 (Fed. Cir. 2002). Because it is not clear
whether the facts of this case would be governed by Comtrol, the court will not deprive plaintiff
of the opportunity to attempt to prove a defective plans and specifications claim.
8
litigation if such a claim was absent from the certified claim presented to the
contracting officer. E & E Enterprises, 120 Fed. Cl. at 175-76. There is a
fundamental difference between a claim founded on a written CDA contract and
one founded on an implied-in-fact contract or oral contract addressing the same
subject matter.4 See id. Because plaintiff’s embankment fill certified claim
contained no reference to an implied-in-fact or oral contract, recovery related to
directions received by Magnus during contract performance is addressed by the
contract’s Changes clause and constructive change caselaw, and not by other
sources of contract law dependent on implied-in-fact or oral contracts.
B. Riprap Claim
1. The Certified Claim and CO’s Final Decision
The title of the riprap certified claim was “Request for a Change Order [for]
the Supply and Placement of Additional Rip Rap dated September 12, 2012.”
Def.’s Mot. Corrected App. at 211. There is no explicit reference to a legal theory
underlying the requested change order, and no specific reference to contract
clauses which might support the change order. Instead, the riprap claim identified
three distinct quantities of riprap, two of which were included in the contract price
by either the base contract or Contract Modifications M001 and M003, as well as a
third quantity of riprap, the “additional” riprap, for which Magnus sought
$607,575. Id. at 212, 222. It appears that Magnus attributed the “additional”
riprap placed on the levee as a required replacement for “existing” riprap that was
either unsuitable or insufficient for the restored levee. Id. at 212, 219, 222,
238-39.
4
/ Even if the embankment fill certified claim could provide jurisdiction over claims
based on implied-in-fact or oral contracts, plaintiff would need to overcome precedent which is
inhospitable to implied-in-fact and oral contract claims in the context of CDA suits based on
written contracts. See Johnson Mgmt. Grp. CFC, Inc. v. Martinez, 308 F.3d 1245, 1258 (Fed.
Cir. 2002) (“[The appellant] does not contest the general rule . . . that an oral contract may not
modify a written contract which is required by regulation to be in writing.” (citing 48 C.F.R. §
2.101; Mil-Spec Contractors, Inc. v. United States, 835 F.2d 865, 869 (Fed. Cir. 1987))); Atlas
Corp. v. United States, 895 F.2d 745, 754-55 (Fed. Cir. 1990) (“The existence of an express
contract precludes the existence of an implied contract dealing with the same subject, unless the
implied contract is entirely unrelated to the express contract.” (citing ITT Fed. Support Servs. v.
United States, 531 F.2d 522, 528 n.12 (1976))).
9
The contracting officer denied the riprap certified claim in its entirety.
Def.’s Mot. Corrected App. at 250. For a number of reasons, the CO considered
both the contractual and factual bases for the claim to be flawed. For example, in
his view Magnus bore the risk of inaccurate estimates for the amount of riprap that
would be required to rehabilitate the levee. Id. at 251. The CO also stated that
Magnus re-used existing riprap in ways that were not reflected in credits that
should have reduced the contract price. Id. at 252. In essence, the CO interpreted
the contract and the communications between Magnus and the Commission to
foreclose any payment for “additional” riprap placed on the levee.
2. Scope of Riprap CDA Claim
The court considers whether the riprap certified claim, as evidenced by the
claim itself and the CO’s decision on the claim, might share operative facts with
the three legal theories discussed previously in this order. A Type I differing site
condition theory of recovery for additional riprap would be founded on an
assertion that the contract made an incorrect representation as to existing riprap
upon which Magnus relied to its detriment. The riprap certified claim relies, in
part, on a solicitation amendment, contract specifications and drawings, contract
modifications and Contract Line Item Number (CLIN) 007 as the foundation for
the amount of “additional” riprap asserted. See Def.’s Mot. Corrected App. at 213,
216, 222-23, 234-37. The contracting officer noted that Magnus estimated riprap
quantities based, in part, on “project specification and plans.” Id. at 251. In the
court’s view, any representations in contract documents regarding existing riprap
are implicit in the riprap certified claim. Because there is sufficient overlap
between the riprap certified claim and the operative facts for a Type I differing site
conditions claim, expert opinion as to the elements of a Type I differing site
condition theory could be relevant to plaintiff’s riprap claim.
Similarly, a defective plans and specifications theory of recovery for
additional riprap would be founded on an assertion that the contract plans,
drawings and specifications were defective as to the riprap aspect of the levee
project, and that Magnus was misled by latent, not patent, defects in these contract
documents. The riprap certified claim relies explicitly on contract specifications
and drawings, see Def.’s Mot. Corrected App. at 223, and the contracting officer
noted that riprap costs were estimated by Magnus based, in part, on “project
specification and plans,” id. at 251. The court must presume that Magnus intends
10
to assert that it relied on project plans, drawings and specifications in order to
perform riprap work. Because there would be sufficient overlap between the
riprap certified claim and the operative facts of a defective plans and
specifications claim, expert opinion as to the elements of a defective plans and
specifications claim could also be relevant to plaintiff’s riprap claim.
Finally, the court considers whether the operative facts of a constructive
change theory of recovery are implicated in the riprap certified claim. This is a
closer question, because in many respects the riprap claim focuses on the proper
interpretation of Contract Modifications M001 and M003 as well as the rights and
responsibilities established by those modifications. See Def.’s Mot. Corrected
App. at 212-16, 222, 251. Indeed, defendant insists that the riprap claim presents,
in essence, an attempt by plaintiff to convert a “lump sum” CLIN into a “time and
materials” CLIN. Def.’s Mot. at 12 n.3; Def.’s Reply at 8-9.
The court notes, however, that communications between the parties are
another focus of the riprap certified claim. One aspect of the dispute concerns
whether correspondence on the riprap issue was incorporated into the contract.
See Def.’s Reply at 8 (asserting that neither Modification M001 nor M003
“incorporated by reference any correspondence outside the four corners of the
parties’ bilateral agreement”). Certain correspondence is nonetheless cited, both
in the riprap certified claim and in the contracting officer’s final decision, as
establishing rights and responsibilities under the contract. See Def.’s Mot.
Corrected App. at 222 (riprap claim) (quoting a letter wherein Magnus asserted
that existing riprap would be handled on a case by case basis); id. at 252 (CO’s
final decision) (quoting the same paragraph of the same letter as establishing the
Commission’s right to a credit for re-used existing riprap). In these circumstances,
the riprap certified claim may involve more than a narrow dispute as to the
meaning of the text of Contract Modifications M001 and M003, and the court
must therefore inquire whether the riprap certified claim could support a
constructive change claim before this court.
A constructive change claim includes the following elements:
To demonstrate entitlement to an equitable adjustment,
[the contractor] must prove that the contract was
modified by someone with actual authority. Where a
11
party contracts with the government, apparent authority
of the government’s agent to modify the contract is not
sufficient; an agent must have actual authority to bind
the government. Such actual authority may be express or
implied from the authority granted to that agent. We
must determine whether [the agency’s representative]
had express or implied authority to bind the government
to contract modifications he approved, or whether these
changes were ratified by the CO.
Winter v. Cath dr/Balti Joint Venture, 497 F.3d 1339, 1344 (Fed. Cir. 2007).
Here, a constructive change theory of recovery for additional riprap could be
founded on an assertion that authorized representatives of the Commission
approved or ratified Magnus’s proposals regarding existing riprap replacement,
and that those changes to the contract work bound the government. This particular
issue was fully joined in the riprap certified claim and the contracting officer’s
final decision. See Def.’s Mot. Corrected App. at 222, 252. Because there is
sufficient overlap between the riprap certified claim and the operative facts of a
constructive change claim, expert opinion as to the elements of a constructive
change claim could be relevant to plaintiff’s riprap claim.
II. Relevant Expert Opinion Testimony of Mr. Champ Clark
Having set forth the legal undergirding and parameters controlling the
present disputes, the court now addresses specific expert opinion challenges
brought by the government. The government asks the court to exclude all seven
topics included in the summary of Mr. Clark’s proposed expert testimony. Among
those seven topics, the court finds only two statements that could be considered to
be potentially relevant to the embankment fill claim under the theories of Type I
differing site conditions, defective plans and specifications, or constructive change
to the contract.
The first statement opines:
The topographical survey for the Lower Reach project
was incomplete, leading to difficulties in determining the
accurate volumes of earth that needed to be moved in
12
order to properly construct the levee.
Def.’s Mot. Corrected App. at 2. The second statement, which could be relevant
to both the embankment fill claim and the riprap claim, opines that “[t]he project
plans and specifications were improperly copied from a prior project instead of
being designed specifically for the Lower Reach Levee.” Id. (emphasis added).
According to plaintiff’s counsel at oral argument, the key word in this second
statement is “improperly,” which should be understood to broadly refer to
inaccurate, inappropriate plans and specifications. These two statements of expert
opinion held by Mr. Clark are the only ones potentially relevant to plaintiff’s
embankment fill and riprap claims.
Mr. Clark’s other opinions, as summarized by plaintiff’s counsel in the
document served on the government, include: (1) percipient witness factual
observations, which are not expert testimony; (2) expert opinions on unrelated
aspects of the levee project; and (3) improper analysis of the legal rights and
duties established by the contract.5 Id. The summary of Mr. Clark’s proposed
expert testimony does not include any expert opinions which specifically mention
riprap. In sum, Mr. Clark’s expert testimony is excluded as irrelevant, except for
his expert opinion regarding the “topographical survey for the Lower Reach
project” as that survey might support plaintiff’s embankment fill claim, and his
testimony on inaccurate plans and specifications, as his expert opinion might
support either the embankment fill claim and/or the riprap claim.
Thus, defendant’s renewed motion in limine, as it pertains to Mr. Clark’s
expert opinions summarized in the record before the court, Def.’s Mot. Corrected
App. at 2, is granted in part, as to paragraphs a, d, e, f, and g, and the second, third
and fourth sentences of paragraph b. Defendant’s renewed motion in limine is
denied in part, however, as to the first sentence of paragraph b, as well as to
paragraph c. See id. (“The topographical survey for the Lower Reach project was
incomplete, leading to difficulties in determining the accurate volumes of earth
that needed to be moved in order to properly construct the levee.”; “The project
5
/ As a general rule, contract interpretation is not the proper subject for expert opinion
testimony unless specialized knowledge is required to interpret contract terms. E.g., Murfam
Farms, LLC ex rel. Murphy v. United States, No. 06-245, 2008 WL 7706607, at *2 & n.1 (Fed.
Cl. Sept. 19, 2008) (citing cases).
13
plans and specifications were improperly copied from a prior project instead of
being designed specifically for the Lower Reach Levee.”). The court now turns to
the proposed expert testimony of Mr. Sills.
III. Relevant Expert Opinion Testimony of Mr. George Sills
Defendant’s renewed motion in limine seeks to exclude a significant number
of Mr. Sills’ expert opinions, and specifically targets twenty-eight allegedly
irrelevant topics included in his expert report. The inquiry into the relevance of
the proposed expert testimony of Mr. Sills is more expansive, due to the large
number of defendant’s challenges to Mr. Sills’ expert opinions, and because the
government has attempted to delete irrelevant opinions from the thirty-five page
narrative included in Mr. Sills’ expert report. The court takes a more general
approach and will not require an excised version of Mr. Sills’ expert report. The
court specifically rejects, however, Mr. Baxter’s suggestion that he be given free
rein to present all of Mr. Sills’ expert opinions at trial, subject only to the court’s
interventions when irrelevant material is proffered. Instead, the court’s relevance
analysis set forth below imposes firm constraints for the presentation of Mr. Sills’
expert opinions at trial and these constraints, in and by themselves, should suffice.
Of the twenty-eight opinions challenged by defendant, the court must agree
with the government that the majority of these opinions address aspects of the
levee project which have no potential relevance to plaintiff’s embankment fill
claim or plaintiff’s riprap claim. This is true despite the fact that for purposes of
deciding defendant’s renewed motion in limine, the court has defined relevant
expert testimony as testimony which addresses the elements of proof for Type I
differing site conditions, defective plans and specifications, or constructive
changes to the contract. In this regard, the court excludes Mr. Sills’ expert
testimony on: (1) any and all design flaws in the levee project; (2) all defective
plans and specifications which detail aspects of the levee project that are distinct
from the specific topics of embankment fill and/or riprap; and, (3) all flaws in
contract administration that do not directly support the elements of proof for Type
I differing site conditions, defective plans and specifications, or constructive
changes to the contract. Mr. Sills’ expert testimony is also subject to the same
general prohibitions on inappropriate expert witness testimony that the court noted
in its discussion of Mr. Clark’s proposed expert testimony. See supra note 5 and
accompanying text.
14
To correlate this relevance analysis with the list of Mr. Sills’ opinions
challenged by defendant, defendant’s renewed motion in limine is granted in part
as to topics 2-4, 6-9, 13-18, 22-23, and 25-26, because these must be excluded as
irrelevant topics for expert testimony in this suit. See Def.’s Mot. at 6-9.
Conversely, defendant’s renewed motion in limine is denied in part as to topics 1,
5, 10-12, 19-21, 24, and 27-28, because these topics are potentially relevant in this
suit, see id., as long as Mr. Sills opines within the context of the elements of proof
for Type I differing site conditions, defective plans and specifications, or
constructive changes to the contract. The court considers these rulings to correctly
weigh the issues of pragmatism, efficiency and relevance highlighted by the
parties in their briefs and at oral argument.
CONCLUSION
The court would be remiss if it failed to seize this opportunity to prevent the
presentation of irrelevant evidence at trial:
There is no question under R[CFC] 16, that this court, as
a trial court, has the power to issue pretrial orders
simplifying issues for trial. Not only does this court
have such power, it has a duty to exercise it in
appropriate cases. This power allows the court, inter
alia, to define the issues, facts, and theories actually in
contention and to weed out extraneous issues. Too, this
court also has the authority to issue pretrial rulings
concerning the admissibility at trial of proposed
testimony and documentary evidence.
Baskett v. United States, 2 Cl. Ct. 356, 359 (1983) (citation omitted). The court
notes that until recently, the legal principles the parties expected to rely upon at
trial, as well as essential contract and claim documents, had not been fully
disclosed to the court. The court was obliged to postpone its ruling on the
relevance of challenged expert testimony until the record was sufficient for that
purpose. However, now that the parties have had the opportunity to set forth their
proposed legal theories in support of the arguments to be presented at trial, and
now that the court has, in turn, weighed in to define the issues, material facts and
theories actually in dispute, it is the expectation of this court that counsel will
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conscientiously adhere to those determinations during the upcoming trial.
Accordingly, for the foregoing reasons it is hereby ORDERED that
(1) Defendant’s Renewed Motion In Limine to Exclude the Expert
Testimony of Champ Clark and Portions of the Expert Report and
Testimony of George Sills, filed June 10, 2016, is GRANTED in
part and DENIED in part, as stated in this order; and
(2) On or before July 29, 2016, the parties shall FILE their Joint
Stipulations of Fact.
/s/Lynn J. Bush
LYNN J. BUSH
Senior Judge
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