Marine Industrial Construction, LLC v. United States

In the United States Court of Federal Claims
No. 15-1189
(Filed: 29 December 2020)
***************************************
MARINE INDUSTRIAL CONSTRUCTION, *
LLC, *
Plaintiff, * Motion to Strike; Objection to Evidence;
* Authentication of Evidence; FRE 901;
v. * Lay Witness Testimony; Expert Witness
* Testimony; FRE 701; Designating Witness
THE UNITED STATES, * as Expert.
*
Defendant. *
*
***************************************
ORDER
HOLTE, Judge
Marine Industrial Construction, LLC (“MIC” or “plaintiff”) accuses the government of
wrongful termination for default of a contract. The government counterclaims for costs related
to the termination of the contract. The Court bifurcated the motions contained within the cross-
motions for summary judgment to address four issues the parties raised prior to adjudicating the
summary judgment motions. This Order decides only the four issues: (1) plaintiff’s motion to
strike the government’s objection as untimely; (2) plaintiff’s objection to certain exhibits cited in
the government’s summary judgment motions for lack of authentication; (3) the government’s
objection to a witness’s testimony as inadmissible lay witness opinion; and (4) plaintiff’s motion
to alternatively designate the witness as an expert witness. For the reasons set forth below,
plaintiff’s motion to strike the government’s objections is denied. Plaintiff’s objection to the
government’s exhibits for lack of authentication is denied. The government’s request the Court
disregard alleged inadmissible statements is granted as to certain sections the government calls
into question. Plaintiff’s motion to designate its witness as an expert is denied.
I. Factual and Procedural History
A. Factual History1
1
All facts in this section are taken from the appendix to the government’s cross-motion for summary judgment and
are cited in the government’s cross-motion’s Statement of Undisputed Facts, unless stated otherwise. See Def.’s
Cross-MSJ; RCFC 56(a) (requiring a movant for summary judgment to show “there is no genuine dispute as to any
material fact.”).
On 25 July 2014, the U.S. Army Corp of Engineers (“USACE” or “the government”)
issued Solicitation W912DW-14-B-0008 (“the solicitation”), for hydraulic dredging at
Quillayute River Waterway, La Push, Washington. Def.-Counterclaimant’s Opp’n to Pl.’s Mot.
for Summ. J. and Cross-Mot. for Summ. J. (“Def.’s Cross-MSJ”), ECF No. 83 at 3 (citing
Appendix to Def.’s Cross-MSJ (“App’x”) at 131–280 (Contract, FY14 Maintenance Dredging
Quillayute River Waterway, La Push, Washington, Contract Number W192DW-14-C-0024)).
The solicitation warned against dangerous weather conditions and various debris in the dredging
area. Id. at 3–5 (citing App’x at 165, 193, 263, 273, 282 (the solicitation)). The solicitation also
required bidders to perform a site visit to inspect “the character, quality, and quantity of surface
and subsurface materials or obstacles to be encountered insofar as this information is reasonably
ascertainable from an inspection of the site.” Id. at 5 (citing App’x at 165 (the solicitation)).
Plaintiff did not perform a site visit to inspect surface and subsurface materials, although this was
its “usual practice.” Id. (citing App’x at 405, 29:9–11 (deposition of Michael Eakin (excerpts)
(stating “nobody from MIC did a site visit prior” to plaintiff submitting its bid)); 356–57, 22:22–
23:9 (deposition of Joseph Bernert (excerpts) (confirming plaintiff’s “usual practice” is to “walk
a job”))). Plaintiff also did not review bidder inquiries in the solicitation, although it usually did
so. Id. at 6 (citing App’x at 314–16, 121:19–123:12 (deposition of Michael Harrison (excerpts)
(testifying reviewing the bidder inquiries “most likely” would have “impacted [his] decision to
either make the bid or how much [he] bid”)); 359, 25:2–13 (deposition of Joseph Bernert
(excerpts) (testifying plaintiff would “usually look at bidder inquiries that come in during the
solicitation”))).
Plaintiff won the solicitation by submitting the lowest bid; the government sent plaintiff a
letter confirming its bid in writing, further describing the material to be removed, and warning of
debris. Id. at 7–8 (citing App’x at 1–130 (contract); 449 (USACE letter to MIC seeking
verification of bid (advising plaintiff its bid was “significantly lower than all other bids,” asking
it to “verify its bid in writing” and check for errors, and describing debris))). Plaintiff moved
ahead without adjusting its submission. Id. at 9 (citing App’x at 295, 66:6–17 (deposition of
Michael Harrison (excerpts)); 397, 36:11–37:3 (deposition of David Bernert (excerpts)); 410,
40:9–14 (deposition of Michael Eakin (excerpts))). The government awarded plaintiff the
contract on 12 September 2014. Id. (citing App’x at 413 (deposition of Michael Eakin
(excerpts))). Plaintiff provided its final submittal on 10 November 2014; this was more than a
month after the 8 October 2014 deadline. Id. at 12 (citing App’x at 423–24, 72:20–73:21
(deposition of Michael Eakin (excerpts)); 525 (FY2014 Dredging Project Submittal Register)).
Plaintiff experienced further delays related to problems with its equipment, including a faulty
crane and dredging pumps. Id. at 13–15 (citing App’x at 485–86 (MIC internal email regarding
La Push project failures); 501 (MIC internal email regarding equipment issues)). More delays
ensued when floating logs damaged plaintiff’s discharge pipes. Id. at 15–16 (citing Pl.’s MSJ at
17–20; App’x at 311–13, 114:20–116:15–21 (deposition of Michael Harrison (excerpts)); 419,
66:19–25 (deposition of Michael Eakin (excerpts))).
On 13 January 2015, the government issued a cure notice. Id. at 19 (citing App’x at 508
(USACE cure notice letter to MIC)). Plaintiff initially responded on 21 January 2015 with a list
of actions it was taking to improve production, and it followed up the next day alleging a
differing site condition. Id. (citing App’x at 509–10 (MIC letter to USACE responding to cure
notice); 511–17 (MIC letter to USACE labeled Serial Letter 0001)). This allegation was related
-2-
to unexpected debris in the boat basin but said nothing about weather or clay content. Id. (citing
App’x at 511–17 (MIC letter to USACE labeled Serial Letter 0001)). Plaintiff continued to
perform behind schedule, and the government issued a show cause letter on 29 January 2015. Id.
at 20 (citing App’x at 518–19 (USACE letter to MIC inviting MIC to show cause why USACE
should not terminate the contract for default)). The government ultimately terminated the
contract for default on 27 February 2015. Id. (citing App’x 520–21 (USACE letter terminating
the contract for default)). This was 156 days into the project and a day short of the deadline;
plaintiff had dredged 13,011 cubic yards of the required 79,000. Id. (citing Second Amended
Complaint, ECF No. 20, Ex. 2 at 8, ¶22).
B. Procedural History
On 13 October 2015, plaintiff sued the government for breach of contract, arguing the
government wrongfully terminated the contract because plaintiff’s delay was excusable. See
Compl., ECF No. 1 at 1–3. Plaintiff requested the Court “[c]onvert[] the [government’s]
termination for default to a termination for convenience” and “award[] [plaintiff] fees pursuant to
the Equal Access to Justice Act.” Id. at 3. Plaintiff filed a first amended complaint on 1 July
2016 and sought “$638,260.81 in additional costs caused by USACE’s breach of warranty, the
differing site conditions encountered, and USACE’s failure to disclose its superior knowledge”
plus interest and fees, along with additional time to perform the contract. See First Amended
Complaint, ECF No. 10 at 7. On 16 January 2017, plaintiff filed a second amended complaint.
See Second Amended Complaint, ECF No. 20. This complaint asserts three counts: (1) breach
of contract for denial of valid claim, requesting the Court find plaintiff encountered 117.5 days
of excusable delay and award plaintiff $638,260.81 and “an additional 80.5 days to complete the
work;” (2) breach of contract for improper termination of default, requesting the Court convert
the government’s termination for default “to a termination for convenience;” (3) breach of
contract for improper demand of payment, requesting the court find the government’s demand
for $1,031,751.50 wrongful and set it aside. Id. at 7–9. On 6 July 2018 the government filed a
first amended answer to plaintiff’s second amended complaint and asserted a counterclaim for
the $1,031,751.50 plus interest for “excess reprocurement costs, administrative costs and
liquidated damages demanded by the contracting officer’s final decision . . . .” First Amended
Answer to Second Amended Complaint and Counterclaim, ECF No. 31 at 9. On 13 August 2018
plaintiff answered the government’s counterclaim. See Pl.’s Answer to Def.’s Countercl., ECF
No. 40. Fact discovery closed on 18 May 2019. See Order, ECF No. 66.
On 10 June 2019 the parties filed a joint status report stating plaintiff “has retained an
expert witness in this matter, [and the government] will retain a rebuttal expert if necessary.”
Joint Status Report, ECF No. 69 at 1. The parties proposed an amended schedule setting
deadlines for expert witness discovery and summary judgment briefing. Id. at 1–2. On 12 June
2019 the court adopted the parties’ proposed expert witness discovery and summary judgment
briefing schedule, requiring plaintiff to provide the government with its expert reports on or
before 9 September 2019, the government to provide plaintiff with any rebuttal expert reports on
or before 8 November 2019, and closing expert discovery on 6 December 2019. Scheduling
Order, ECF No. 70. On 29 July 2019 this case was transferred to the undersigned Judge. See
Order, ECF No. 71. On 13 December 2019 the government submitted an unopposed motion for
enlargement of the briefing schedule, and the Court granted the motion on 18 December 2019.
-3-
See Def.’s Unopposed Mot. for Enlargement of Briefing Schedule, ECF No. 73; Order, ECF No.
74. On 30 March 2020, the parties submitted a joint motion seeking an extension of time for the
summary judgment briefing schedule. See Joint Mot. for Enlargement of Briefing Schedule,
ECF No. 75. The parties jointly requested “[t]he deadline for oppositions to, or cross-motions
for, summary judgment and any responses to motions for adverse inferences based on failure to
preserve documents be extended . . . to June 3, 2020.” Id. at 1. On 2 April 2020, the Court
adopted the parties’ jointly proposed schedule for summary judgment briefing. See Order, ECF
No. 76.
Plaintiff moved for summary judgment on 4 May 2020 on the three counts in its second
amended complaint. See Mot. for Summ. J., ECF No. 79. Also on 4 May 2020 plaintiff
supplemented its motion for summary judgment with two declarations and various attached
exhibits. See Decl. of David H. Bowser in Support of Pl.’s Mots. for Summ. J., ECF No. 80 and
Decl. of Joseph Bernert in Support of Pl.’s Mots. for Summ. J., ECF No. 81 (“Mr. Bernert’s
Declaration” or “Declaration of Mr. Bernert”). On 3 June 2020, the government filed an
objection to inadmissible evidence regarding statements in the two declarations plaintiff offered
in support of its motion for summary judgment. See Def.-Counterclaimant’s Objs. to
Inadmissible Evidence Offered in Support of Pl.’s Mot. for Summ. J. (“Def.’s Objs.”), ECF No.
82. The government objected to parts of the Declaration of Joseph Bernert, vice president and
co-owner of plaintiff, ECF No. 81, and Exhibit H to the Declaration of Joseph Bernert, ECF No.
81-1.2 Id. The government objected to certain of Mr. Bernert’s statements and alleged they were
based on information contained in academic literature, hearsay not within the record, and
allegations beyond his personal knowledge. Id. The government also objected to Exhibit H as
inadmissible hearsay not within any exception and to parts of Exhibit H as containing
inadmissible lay witness opinion. Id. On 4 June 2020, the government filed a cross-motion for
summary judgment on the three counts in plaintiff’s second amended complaint and the
counterclaim in its first amended answer. See Def.’s Cross-MSJ at 26, 46.
On 17 June 2020, plaintiff filed a response to the government’s objections, which
requested the Court strike the government’s objections to its declarations as untimely, defended
Mr. Bernert’s testimony as proper Rule 701 lay witness opinion, and, alternatively, moved to
designate Mr. Bernert as an expert witness. See Pl.’s Mot. Strike Def.’s Objections as Untimely,
Opp’n in Resp. to Def.’s Objs. to Inadmissible Evidence Offered in Support of Pl.’s Mots. for
Summ. J., and Alternative Mot. to Designate Expert (“Pl.’s Mot. Strike Def.’s Objs.”), ECF No.
84. On 24 June 2020, the government replied in support of the timeliness of its objections,
argued Mr. Bernert should not be able to give lay testimony, and stated it was too late in the
proceedings for plaintiff to declare Mr. Bernert an expert witness. See Def.-Counterclaimant’s
Reply in Support of Objs. to Inadmissible Evidence Offered in Support of Pl.’s Mot. for Summ.
J. (“Def.’s Reply”), ECF No. 86. On 27 June 2020, plaintiff replied in support of its motion for
summary judgment and in response to the government’s motion for summary judgment. Pl.’s
Consolidated Rep. in Support of Its Mots. for Summ. J. and Resp. Against Def.’s Mots. for
2
The government objected to “Exhibit H to the Declaration of David Bowser, Dkt. No. 80” on the first page of its
objection brief, but Item II on page 2 of the brief is directed to “Declaration of David Bowser, Exhibit H, Dkt. No.
81-H).” Def.’s Objs. at 1–2. Exhibit H is attached to the Declaration of Joseph Bernert, ECF No. 81 on the CM-ECF
docket. The government clarified during oral argument it made an error confusing ECF No. 81 with ECF No. 80.
See Tr. at 40:14–41:2.
-4-
Summ. J. (“Pl.’s Reply”), ECF No. 87. Plaintiff also argued the Court should not consider the
government’s attachments and exhibits at the summary judgment stage because the government
had not authenticated any of the attachments to its motions. Id. at 2.
On 3 August 2020, the Court held a telephonic status conference in this matter. See
Scheduling Order, ECF No. 92. As the parties’ counsel agreed during the call, the Court
bifurcated the motions contained within the cross-motions for summary judgment and addressed
the four pending summary judgment–related issues prior to the summary judgment motions.
Order, ECF No. 93. On 23 September 2020, the Court held oral argument on the four issues.
See Oral Argument Transcript (“Tr.”), ECF No. 96. Following oral argument, the Court ordered
plaintiff to submit a supplemental brief “fully explaining why the government’s attachments and
exhibits lack required authentication, not[ing] specifically which documents plaintiff disputes
(with document description and ECF page identification), and provid[ing] citations to legal
authority regarding what requirements the government fails to comply with.” Order (“Suppl. Br.
Order”), ECF No. 94. Plaintiff filed a supplemental brief on 1 October 2020. See Pl.’s Suppl.
Br. in Supp. of Its Consolidated Reply in Supp. of Its Mots. for Summ. J. and Resp. Against
Def.’s Mots. for Summ. J., ECF No. 97. The government filed a response to plaintiff’s
supplemental brief and a declaration from its counsel on 8 October 2020. See Def.-
Counterclaimant’s Resp. to Pl.’s Suppl. Br. Objecting to Evidence (“Def.’s Supp. Br.”), ECF No.
98; Declaration of Jimmy S. McBirney (“Def.’s Supp. Decl.”), ECF No. 99.
II. Parties’ Arguments
The Court bifurcated four issues from the parties’ cross-motions for summary judgment.
See Order, ECF No. 93. The four issues are: (1) plaintiff’s motion to strike the government’s
objection filed on 3 June 2020 as untimely, see Pl.’s Mot. Strike Def.’s Objs.; (2) plaintiff’s
objection to certain exhibits cited in the government’s summary judgment motions for lack of
authentication, see Pl.’s Reply and Pl’s Supp. Br.; (3) the government’s objection to Mr.
Bernert’s testimony as inadmissible lay witness opinion, see Def.’s Objs.; and (4) plaintiff’s
motion to alternatively designate Mr. Bernert as an expert witness, see Pl.’s Mot. Strike Def.’s
Objs.
A. Timeliness of the Government’s 3 June 2020 Objection
Plaintiff argues the deadline for the government’s 3 June 2020 objection was 1 June
2020. Pl.’s Mot. Strike Def.’s Objs. at 1. Plaintiff bases this earlier date on “the default 28 days
that is imposed under Rule 7.2(b)(1) for matters related to . . . responses and objections filed
under Rule 56.” Tr. at 5:14–24. Plaintiff argues the Court’s 2 April 2020 Order only extended
the default deadline from 1 June 2020 to 3 June 2020 for the government’s “cross-motion for
summary judgment and any responses to motions for adverse inferences,” but not for “objections
to . . . inadmissible evidence.” Id. at 6:10–15.
The government argues plaintiff ignores “the Court’s April 2, 2020, scheduling order that
adopted the parties’ jointly proposed briefing schedule and set June 3, 2020, as the deadline for
cross-motions for summary judgment.” Def.’s Reply at 2. The government explains the Court’s
2 April 2020 Order “covered the deadlines of the objections as well” because “logically, when it
-5-
stated a deadline for the Government’s summary judgment motion, that would include any other
filings that were part and parcel with that summary judgment motion, such as objections to
evidence.” Tr. at 8:4–14. The government also observes plaintiff does not allege any prejudice
resulting from the government’s date of filing its objections. Id. at 8:14–19.
B. Plaintiff’s Argument the Government’s Exhibits Lacked Necessary
Authentication
On 27 June 2020 plaintiff raised for the first time—in its reply to the government’s
responsive summary judgment motion—concern the government “did not supply any declaration
with its motions or responses. This means that every document that was attached to its motions
has not been authenticated in any manner.” Pl.’s Reply at 2. Plaintiff did not file an objection to
the government’s proffered evidence. See id. Plaintiff asks the Court to “not consider any
document that has not been authenticated because there is no foundation provided.” Id. at 2.
Plaintiff maintains “[t]he requirement for authentication comports with basic authority
regarding the use of records for summary judgment.” Pl.’s Supp. Br. at 2. Plaintiff argues “[t]o
be considered on summary judgment, however, documents must, if challenged, be authenticated
and admissible.” Id. (emphasis omitted). Plaintiff further argues “[t]o satisfy the requirement of
authenticating . . . an item of evidence, the proponent must produce evidence sufficient to
support a finding that the item is what the proponent claims it is.” Id. at 2 (quoting FRE 901(a)).
Plaintiff identifies 12 documents “for which authentication is an open issue.” Id. at 3.
The government’s response to plaintiff’s supplemental brief asks the Court to limit
plaintiff’s objection “to the specific objection made in its prior briefing—namely, that the United
States is required to provide an attorney declaration authenticating its proffered evidence.”
Def.’s Supp. Br. at 3. The government asserts “any other form of objection to the documents
MIC now identifies . . . should be deemed waived.” Id. According to the government, “FRE
901(a) requires that the government make only a prima facie showing of authenticity,” such that
a reasonable finder of fact “could find in favor of authenticity or identification.” Id. at 4.
(internal citation omitted). The government argues plaintiff’s authentication objections lack
merit because “there is no genuine question as to the documents’ authenticity.” Id. The
government concurrently filed a declaration from its counsel “which mirrors the authenticating
language utilized in [plaintiff’s] attorney declarations purporting to authenticate [plaintiff’s]
proffered summary judgment evidence.” Id. at 6; see Def.’s Supp. Decl. The government argues
its counsel’s declaration “authenticates . . . each of the twelve appendix items that [plaintiff] now
objects to” and certifies each of the 12 documents is a “true and correct copy” of the original
document. Def.’s Supp. Br. at 6.
C. Admissibility of Mr. Bernert’s Testimony
The government moved to strike certain statements in Mr. Bernert’s Declaration as
inadmissible under RCFC Rule 37(c)(1) for the resolution of the parties’ cross-motions for
summary judgment. See Def.’s Objs. at 1 (citing RCFC 56(c)(4)). The government objects to
Paragraph 4E in Mr. Bernert’s Declaration, which contains “allegations of fact beyond Mr.
Bernert’s personal knowledge, purportedly based on academic literature” and “modeling Mr.
-6-
Bernert purportedly developed” to estimate the project site’s stream flow. Id. at 1–2. The
government argues the statements purporting to relay information contained in academic
literature are, under FRE 801(c), hearsay not within any exception. Id. at 2. The government
also objects to Paragraphs 5–12 of Mr. Bernert’s Declaration, which “all consist of allegations of
fact beyond Mr. Bernert’s personal knowledge, purportedly based on documents attached as
Exhibits L–S . . . .” Id. The government asserts the statements of Paragraphs 5–12 “purporting
to relay information contained in Exhibits L–S are hearsay not within any exception.” Id. (citing
FRE 801 (c)). The government argues Mr. Bernert’s interpretation or extrapolation of
information in these documents is improper lay witness opinion under Rule 701(a) and (c). Id.
The government further objects to Exhibit H in the Declaration of Mr. Bernert, ECF No.
81-1, as impermissible hearsay. See Def.’s Objs. at 2–3 (citing FRE 801(c)). The government
argues “Exh. H also contains purported analysis of weather patterns and sediment content that is
not based upon the personal knowledge of plaintiff or of the individual who has verified the
responses (Joseph Bernert).” Def.’s Objs. at 3.
Plaintiff argues the government waived its objection to Paragraph 4E of the Declaration
of Mr. Bernert (“Paragraph 4E”) by using the information to support its own motion for
summary judgment. Pl.’s Mot. Strike Def.’s Objs. at 1. Plaintiff also argues Paragraph 4E of the
Declaration of Mr. Bernert is admissible lay opinion. Id. at 2. Plaintiff states Mr. Bernert, “as
part of his position, and because he had specialized training, . . . investigated the available flow
data.” Id. at 8. Plaintiff also defends the admissibility of Paragraphs 5–12 of the Declaration of
Mr. Bernert as admissible lay opinion because “Mr. Bernert, due to his position in experience
[within plaintiff’s business], conducted an investigation into delay caused to [plaintiff] from the
unusually severe weather.” Id. at 9–10. Plaintiff additionally states summary judgment
declarations are exempt from hearsay exclusions and contends Exhibit H is admissible as either
first-hand information or admissible lay opinion. Id. at 10.
The government argues in response there is no authority for plaintiff’s assertion the
government waived its objection to plaintiff’s proffered evidence “by addressing the substance of
that evidence.” Def.’s Reply at 3. The government further states “Mr. Bernert’s proffered
opinions, however, are neither based on his personal knowledge, nor limited to ‘business
operations and industry practices,’ and are ‘based on scientific, technical, [and] other specialized
knowledge.’” Id. at 5. The government objects to plaintiff’s characterization of Exhibit H as a
summary judgment declaration exempt from hearsay exclusions because “MIC cites no authority
to support its attempt to circumvent FRE 801(c) by ‘incorporating’ inadmissible discovery
responses into a summary judgment declaration.” Id. at 6.
D. Motion to Designate Mr. Bernert as an Expert Witness
Plaintiff alternatively moves to designate Mr. Bernert as an expert witness. Pl.’s Mot.
Strike Def.’s Objs. at 11. Plaintiff argues its motion meets all four of the factors another judge
on this court and other federal courts considered in determining whether “good cause” exists to
modify a schedule under Rule 16 to accommodate adding an expert witness. Id. at 11 (citing Sys.
Fuels, Inc. v. United States, 111 Fed. Cl. 381, 383 (2013)). According to plaintiff: (1) “the
reason MIC did not designate Mr. Bernert as an expert as [sic] it had a reasonable belief,
-7-
supported by [the government’s] contracting practice and case law, that Mr. Bernert would be
able to offer his lay opinions under FRE 701;” (2) Mr. Bernert’s testimony is relevant to “central
issues to MIC’s claims and defenses;” (3) the government “will not be prejudiced by allowing
the testimony” because the government had ample time to review Mr. Bernert’s testimony and
deposed him; and (4) “to the extent [the government] would like to designate their own
expert, . . . they can be allowed to designate one . . . [and] a counter ‘expert’ should be readily
available.” Id. at 11–12.
The government urges the Court to deny plaintiff’s motion under the four factors the
court in System Fuels applied, arguing: “(1) MIC was well aware that the testimony it now seeks
to introduce through Mr. Bernert required a qualified expert; and (2) even if MIC had not been so
aware, MIC’s misapprehension of law cannot justify re-opening expert discovery at such a late
stage in the proceedings, particularly after the parties have filed motions for summary
judgment.” Def.’s Reply at 7. The government explains plaintiff previously retained an expert
and thus prompted the parties to file the joint status report on 10 June 2019. Id. at 8; see also
Joint Status Report, ECF No. 69 at 1 (“MIC has retained an expert witness in this matter, the US
will retain a rebuttal expert if necessary.”). Then, “on the day MIC’s expert report was due,
counsel for MIC informed counsel for the United States that MIC’s expert had declined to
provide a report.” Def.’s Reply at 8. The government argues for “over nine months” after
“MIC’s retained expert’s withdrawal,” “MIC did not seek an extension of the agreed upon expert
discovery deadlines to attempt to retain a new expert, nor did MIC seek to offer Mr. Bernert as
an expert . . . .” Id. at 8–9.
III. Timeliness of the Government’s 3 June 2020 Objection
The government filed an objection on 3 June 2020 requesting the Court ignore certain
evidence plaintiff cited in its summary judgment motion for the purposes of resolving the cross-
motions for summary judgment. See Def.’s Objs. at 1. Plaintiff moves to strike the
government’s objection as untimely and argues the government should have filed its motion by
1 June 2020, according to “the default 28 days that is imposed under Rule 7.2(b)(1) for matters
related to . . . responses and objections filed under Rule 56.” Tr. at 5: 21–24; see also Pl.’s Mot.
Strike Def.’s Objs. at 1. The government argues plaintiff has no basis to encourage the Court to
apply the ECF-generated due date based on the rule’s default 28 days because this would ignore
both the parties’ joint motion for extension of time and the Court’s order setting 3 June 2020 as
the deadline for filing a responsive summary judgment motion. Def.’s Reply at 2. Plaintiff’s
counsel argues the Court’s order extended the deadline to 3 June 2020 for summary judgment
motions and does not apply to objections to inadmissible evidence. See Tr. at 6:10–15.
Rule 7.2(b) states the Court’s default summary judgment filing deadline requires “[a]
response to [a summary judgment] motion[] must be filed within 28 days after service of the
motion.” RCFC 7.2(b). The Court may amend its schedule by order. RCFC 7.2(a)(1) (“Unless
otherwise provided in these rules or by order of the court, a response or an objection to a written
motion must be filed within 14 days after service of the motion.”) (emphasis added). Another
judge on this court explained the standard filing deadlines in RCFC 7.2 “appl[y] only if the filing
of a response is not ‘otherwise provided in these rules or by order of the court.’” Sharpe v.
United States, 112 Fed. Cl. 468, 472 n.2 (2013) (quoting RCFC 7.2(a)(1)). “[T]he power
-8-
inherent in every court to control the disposition of the causes on its docket with economy of
time and effort for itself, for counsel, and for litigants.” Landis v. North American Co., 299 U.S.
248, 255–56 (1936). Counsel for plaintiff explained the Court’s power over its schedule at oral
argument: “the general section, 7.2, indicates that the deadlines apply unless otherwise provided
in these rules or by order of the Court.” Tr. at 5:25–6:2.
Plaintiff provided no basis for its argument the Court should apply the ECF-generated
due date based on the Rule 7.2’s default 28 days when both parties agreed to 3 June 2020 as the
deadline for the government to file responses to plaintiff’s motion for summary judgment. See
Joint Mot. for Enlargement of Briefing Schedule at 1. The parties jointly requested “[t]he
deadline for oppositions to, or cross-motions for, summary judgment and any responses to
motions for adverse inferences based on failure to preserve documents be extended from May 1,
2020 to June 3, 2020.” Id. The parties explained they requested “the Court extend the briefing
deadlines in this case so as to enable the parties to fully brief the relevant legal and factual issues
in this case.” Id. at 2. The parties did not request any deadlines remain at Rule 7.2’s default 28
days, and the parties did not ask the Court to set the deadlines for objections differently than the
deadlines for briefing. The Court ordered 3 June 2020 as the new deadline for the government to
respond. Order, ECF No. 76 at 1. Plaintiff provides no reason, and does not cite any rule, for
why the Court’s 2 April 2020 Order’s extension of a deadline for filing a summary judgment
motion would not also extend the deadlines for other filings tied with the summary judgment
motion, such as objections to evidence. Plaintiff also notably failed to argue prejudice from the
parties’ disagreement over the deadline. Plaintiff’s effort to exclude the government’s objection
from plaintiff’s jointly requested two-day extension contradicts its past support for “enabl[ing]
the parties to fully brief the relevant legal and factual issues in this case.” Joint Mot. for
Enlargement of Briefing Schedule at 2. The adversarial process in civil litigation furthers
justice; plaintiff’s effort here to disagree with a previously agreed upon time extension frustrates
it. The government’s objection is timely filed because the government filed it by the deadline
the parties agreed to and the Court ordered—3 June 2020. RCFC 7.2(a)(1); Sharpe v. United
States, 112 Fed. Cl. at 472 n.2 (2013).
IV. Plaintiff’s Objection Regarding Authentication of the Government’s Exhibits
On June 3, 2020, the government filed its cross-motion for summary judgment and
objection to plaintiff’s evidence. See Def.’s Cross-MSJ; Def.’s Objs. On 27 June 2020, plaintiff
filed its response to the government’s cross-motion for summary judgment. See Pl.’s Reply.
Plaintiff did not separately file any objections to the government’s evidence. Plaintiff did,
however, include a paragraph stating: “USACE did not supply any declaration with its motions
or responses. This means that every document that was attached to its motions has not been
authenticated in any manner. As such, the Court should not consider any document that has not
been authenticated because there is no foundation provided.” Pl.’s Reply at 2.
Briefing on the parties’ respective motions for summary judgment—including all
related evidentiary objections—concluded on 10 July 2020. See Order, ECF No. 76. The Court
bifurcated four issues from the parties’ cross-motions for summary judgment and heard
arguments on the parties’ respective evidentiary objections on 23 September 2020. See Order,
ECF No. 93. During oral argument, plaintiff was unable to cite any document it disputed the
-9-
authenticity of. See Tr. at 29:11–19. The Court issued a post–oral argument order allowing
plaintiff to submit supplemental briefing supporting its lack of authentication objection. See
Suppl. Br. Order. Plaintiff identified 12 documents “for which authentication is an open issue”
in its supplemental brief filed on 1 October 2020. Pl.’s Suppl. Br. at 6–8. The government
responded to plaintiff’s supplemental brief on 8 October 2020 and concurrently filed a
declaration from its counsel of record to authenticate the 12 documents plaintiff objected to.
Def.’s Suppl. Br. at 6.
A. Legal Standard
Under Federal Rule of Evidence 901(a), “[t]o satisfy the requirement of authenticating or
identifying an item of evidence, the proponent must produce evidence sufficient to support a
finding that the item is what the proponent claims it is.” FRE 901(a). A party asserting the
evidence must present “sufficient evidence from which a reasonable finder of fact could
conclude that . . . [the evidence was] authentic.” Homeland Housewares, LLC v. Sorensen
Research, 581 F. App’x 869, 873 (Fed. Cir. 2014). “The court may consider as admissible
evidence [the party’s evidence] if the [evidence is] properly authenticated pursuant to Rule 901
of the Federal Rules of Evidence.” Kersavage v. United States, 36 Fed. Cl. 441, 445 (1996).
“To satisfy FRE 901, the [party] must provide evidence ‘sufficient to support a finding that the
matter in question is what its proponent claims.’” Id. (citing FRE 901).
While the Federal Circuit has not ruled on the standard FRE 901(a) requires for
authentication, another judge on this court followed the D.C. Circuit in holding the standard for
authentication requires “the possibilities of misidentification and adulteration must be
eliminated, not absolutely, but as a matter of reasonable probability.” Alpha I, L.P. v. United
States, 93 Fed. Cl. 280, 293–294 (2010) (citing United States v. Haldeman, 559 F.2d 31, 107
(D.C. Cir. 1976)). The court in Alpha I, L.P. also noted the Tenth Circuit “rejected the
adopt[ion] of ‘an inflexible [foundation] criteria’” for authentication and ruled the trial court
should have flexibility to determine whether certain evidence may be authenticated. Id. at 294
(citing United States v. Jones, 730 F.2d 593, 597 (10th Cir. 1984)). In Alpha I, L.P., plaintiffs
moved to strike transcripts of a conversation because the records had not been authenticated. Id.
at 295. The court in Alpha I, L.P. admitted the transcripts because “[d]efendant has adequately
supported its contention [with information in the depositions] that the transcripts are substantially
authentic records of statements and may therefore be relied on by the court at the summary
judgment stage.” Id.
Rule 901(b) provides examples of how to meet the authentication requirement in Rule
901(a), including “[t]estimony [of a witness with knowledge] that a matter is what it is claimed
to be.” FRE 901(b)(1). This court has accepted the language “a true and correct copy” of the
original source to satisfy the requirement of Rule 901(a). Grand Acadian, Inc. v. United States,
87 Fed. Cl. 193, 204–05 (2009) (admitting plaintiff’s evidence with an affidavit from plaintiff’s
president stating he has “reviewed the Site Plan . . . , and declare[s] that it is a true and correct
copy of the Site Plan provided to [him]”).
B. Analysis
- 10 -
Plaintiff notes “the court may consider as admissible evidence [the party’s evidence] if
the [evidence is] properly authenticated pursuant to Rule 901 of the Federal Rules of Evidence,”
and “to satisfy FRE 901, the [party] must provide evidence ‘sufficient to support a finding that
the matter in question is what its proponent claims.’” Pl.’s Suppl. Br. at 5 (citing Kersavage 36
Fed. Cl. 441, 445 (1996) (internal citation omitted)). The government argues Rule 901(a)
requires the government to “make only a prima facie showing of authenticity” before the finder
of fact decides “the probative force of the evidence offered.” Def.’s Supp. Br. at 4 (citing United
States v. Blackwood, 878 F.2d 1200, 1202 (9th Cir. 1989) (internal citation omitted)).
The government explains, of the 12 exhibits plaintiff objected to, nine are “either (1) part
of the solicitation [of the contract in dispute], or (2) emails to or from MIC personnel that were
provided to both MIC and the Government by a third party, after MIC spoilated the copies sent
or received by MIC’s personnel.” Def.’s Supp. Br. at 3–4. The other three documents “are all
USACE records, all but one of which were produced in this litigation years ago.” Id. at 6.
Plaintiff used one of the disputed documents, “the bidder inquiry contractor report,” in its
summary judgment briefing, where it did “not raise any question or dispute as to the inquiries’
content.” Id. at 4. The documents plaintiff objects to do not risk, “as a matter of reasonable
probability,” misidentification and adulteration, and plaintiff failed to specifically dispute the
content of any of the documents or assert where or how the documents were adulterated. See
Homeland Housewares, 581 F. App’x at 873; Alpha I, L.P., 93 Fed. Cl. at 293–294 (“[T]he
possibilities of misidentification and adulteration must be eliminated, not absolutely, but as a
matter of reasonable probability.”).
The government also submitted a declaration by its counsel to certify each of the 12
disputed documents is “a true and correct copy” of the original source and explained the original
source of each document. See Declaration of Jimmy S. McBirney at 1–4; Grand Acadian, Inc. v.
United States, 87 Fed. Cl. at 204–05 (admitting plaintiff’s evidence with an affidavit from
plaintiff’s president stating he has “reviewed the Site Plan . . . , and declare[s] that it is a true and
correct copy of the Site Plan provided to [him]”). The declaration of the government’s counsel
explains the original source of each disputed document and his personal knowledge regarding
how the document was produced during this case. See id. Plaintiff calls into question the
validity of, for example, three emails from its own superintendent on the project related to this
case, Scott Franklin, who worked for plaintiff as an independent contractor. See Pl.’s Suppl. Br.
at 3–4. Plaintiff argues it “is not sure of the authenticity of” these emails because they are “not
bated with either a United States or MIC designation. No authentication of this document has
occurred in any deposition.” Id. The government’s counsel explained although the parties
received Mr. Franklin’s emails from different sources,3 because their respective collections of
Mr. Franklin’s emails contained “the same number of files . . . and the same total amount of
data,” they would “agree that it was not necessary for them to exchange their respective copies of
Scott Franklin’s identical production.” Declaration of Jimmy S. McBirney at 2–3. Plaintiff does
not explain why it chose not to address its lack of certainty regarding the authenticity of the
3
The government explains the email data comes from different sources partially because “Mr. Franklin provided the
United States with a large collection of emails in native format that were responsive to the discovery requests served
on MIC, but that MIC had not ever produced.” Declaration of Jimmy S. McBirney at 2.
- 11 -
versions of Mr. Franklin’s emails the government cites by comparing them to its own copies of
Mr. Franklin’s emails.
Rule 901(b)(1) allows testimony of a witness with personal knowledge to certify “an item
is what it is claimed to be.” FRE 901(b)(1). The government’s authentication—through its
counsel’s declaration stating each of the disputed documents is “a true and correct copy”—is
“sufficient to support a finding that the item is what the [government] claims it is.” FRE 901(a);
Declaration of Jimmy S. McBirney at 1–4; Grand Acadian, Inc. v. United States, 87 Fed. Cl. at
204–05. Thus, the government “satisf[ies] the requirement of authenticating,” and the Court
therefore admits the government’s exhibits and attachments to its motions for the summary
judgment stage of proceedings. FRE 901(a); see Homeland Housewares, LLC, 581 F. App’x at
873 (Fed. Cir. 2014) (requiring a party asserting the evidence to present “sufficient evidence
from which a reasonable finder of fact could conclude that the [evidence was] authentic”).
Pursuant to RCFC 12(f)(2), “[t]he Court may strike from a pleading an insufficient
defense” based on a “motion made by a party either before responding to the pleading or, if a
response is not allowed, within 21 days after being served with the pleading.” The government
filed its summary judgment motion with exhibits on 3 June 2020. In its responsive brief filed on
27 June 2020, plaintiff broadly alleged the government’s exhibits lacked authentication. See
Pl.’s Reply at 2. Plaintiff eventually challenged the authentication of 12 documents, asserting
“authentication is an open issue,” in its 1 October 2020 supplemental brief. Pl.’s Suppl. Br. at 3–
5. Plaintiff’s initial allegation of lack of authentication came 24 days after plaintiff’s filing date,
and plaintiff did not allege issues with any specific documents until nearly fourth months
following plaintiff’s filing date. Plaintiff also did not make these allegations in the form of a
motion, as Rule 12 requires. See RCFC 12(f)(2). Regardless of these deficiencies, the Court
considered plaintiff’s allegations, and the government replied in a timely manner in its
supplemental brief on 8 October 2020. See Def.’s Suppl. Br. Plaintiff requested the government
submit “evidence ‘sufficient to support a finding that the matter in question is what its proponent
claims.’” Pl.’s Suppl. Br. at 5. The government more than met this burden. The Court therefore
finds the government sufficiently cured any remaining question of authenticity of the evidence
plaintiff objected to through the declaration of the government’s attorney; any delay in the
government’s cure is due to plaintiff’s failure to object to specific evidence before 1 October
2020. See Declaration of Jimmy S. McBirney; Landis, 299 U.S. at 255–56 (identifying “the
power inherent in every court to control the disposition of the causes on its docket with economy
of time and effort for itself, for counsel, and for litigants.”); Grand Acadian, Inc. v. United
States, 87 Fed. Cl. at 204–05 (admitting evidence with an affidavit declaring it is “it is a true and
correct copy”).
V. Admissibility of Mr. Bernert’s Declaration
The government moved to strike certain statements in Mr. Bernert’s Declaration as
hearsay not within any exception under Federal Rule of Evidence 801(c) and inadmissible lay
witness opinion according to Federal Rule of Evidence 701(a) and (c). See Def.’s Objs. Plaintiff
argues the government waived its objection by using the information to support its own motion
for summary judgment. See Pl.’s Mot. Strike Def.’s Objs. at 1. Plaintiff also argues “Mr.
Bernert’s opinions should be admissible because they “were based on his investigation and
- 12 -
reflected his investigatory findings and conclusions, and was [sic] not rooted exclusively in his
expertise.” Id. at 9. According to plaintiff, Mr. Bernert’s lay opinions are conclusions from that
investigation and admissible under Rule 701. Id. The government argues it should not be
“required to choose between either resting on its objections to MIC’s proffered evidence, or
waiving those objections by addressing the substance of that evidence.” Def.’s Objs. at 3. The
government further argues “Mr. Bernert’s proffered opinions . . . are neither based on his
personal knowledge, nor limited to ‘business operations and industry practices’ and instead are
‘based on scientific, technical, [and] other specialized knowledge.’” Id. at 5.
A. Applicable Law
Rule 701 of the Federal Rules of Evidence states “[i]f a witness is not testifying as an
expert, testimony in the form of an opinion is limited to one that is: (a) rationally based on the
witness’s perception; (b) helpful to clearly understanding the witness’s testimony or to
determining a fact in issue; and (c) not based on scientific, technical, or other specialized
knowledge within the scope or Rule 702.” FRE 701. A “party offering [Rule 701 lay witness]
testimony must show that the witness had an adequate opportunity to observe and presently
recalls the observation, and a person who has no knowledge of a fact except what another has
told him does not satisfy the requirement of knowledge from observation.” BPLW Architects &
Eng’rs, Inc. v. United States, 106 Fed. Cl. 521, 545 (2012) (internal citations omitted). The
Federal Circuit has not ruled on the applicability of Rule 701 to after-the-fact investigations,4 but
other judges on this court have held personal knowledge to be required for a lay witness. See,
e.g., DataMill, Inc. v. United States, 91 Fed. Cl. 722, 735 (2010) (“[A] witness may testify to an
event or occurrence that he has seen himself, but not one that he knows only from the description
of others.”) (quoting 3 C.B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 6:5 (3d ed.
2007)); RP1 Fuel Cell, LLC v. United States, 120 Fed. Cl. 288, 319 (2015) (“[A] lay witness can
testify on his or her ‘perception,’ as long as it is connected to their personal knowledge.”)
(internal citation omitted), aff’d, 644 F. App’x 1012 (Fed. Cir. 2016).
“Testimony of a lay witness is admissible only upon a showing that the witness has
personal knowledge of the subject matter of the testimony.” BPLW Architects & Eng’rs, 106
Fed. Cl. at 545 (citing DataMill, 91 Fed. Cl. at 734). Rule 701 of the Federal Rules of Evidence,
“which allows a lay witness to testify in opinion form, requires the testimony to be ‘rationally
4
Plaintiff’s counsel was unable to identify a case from this court or the Federal Circuit to support its assertion
regarding an after-the-fact investigation being admitted as lay opinion:
THE COURT: Okay. So, Mr. Bowser, do you have a Federal Circuit or Court of Federal Claims
case that helps us understand your assessment of allowing an after- the-fact investigation like this?
MR. BOWSER: Your Honor, I could not find a specific case in either of those jurisdictions that
either allowed or disallowed an after-the-fact investigation. Considering that the Court of Claims
Rule is basically a mirror of the Federal Rule, I expanded my search out and that’s when I located
the Acosta decision and the U.S. vs. Whaley decision.
Tr. at 48:17–25, 54:13–23.
- 13 -
based on the witness’s perception.’” Id. (quoting FRE 701(a)). This requirement “effectively
incorporates the personal knowledge requirement as a prerequisite to acceptance of opinions by
lay persons.” DataMill, 91 Fed. Cl. at 734–35. The party offering the witness’s testimony must
demonstrate the witness “‘had an adequate opportunity to observe and presently recalls the
observation,’ and a ‘person who has no knowledge of a fact except what another has told him
does not satisfy the requirement of knowledge from observation.’” Id. at 735 (quoting
1 McCormick on Evidence § 10 (Kenneth S. Broun et al. eds., 2006)).
Rule 701(c) of the Federal Rules of Evidence prohibits lay testimony from being “based
on scientific, technical, or other specialized knowledge within the scope of Rule 702.” FRE
701(c). Rule 702 in turn states, “[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.” FRE 702.
“Unlike an ordinary witness, see Rule 701, an expert [under FRE 702] is permitted wide latitude
to offer opinions, including those that are not based on firsthand knowledge or observation.”
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592 (1993) (citing FRE 702).
Federal Rule of Evidence 802 is the general rule against hearsay: “Hearsay is not
admissible except as provided by these rules or by other rules prescribed by the Supreme Court
pursuant to statutory authority or by Act of Congress.” FRE 802. Federal Rule of Evidence
801(c) defines hearsay as “a statement, other than one made by the declarant while testifying at
the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Air Land
Forwarders, Inc. v. United States, 172 F.3d 1338, 1342 (Fed. Cir. 1999).
B. Whether Mr. Bernert’s Declaration Is Hearsay or Expert Witness Opinion
1. Whether the Government Waived Its Objection
Plaintiff argues the government waived any objection regarding Paragraph 4E in Mr.
Bernert’s Declaration by using the evidence to support the government’s summary judgment
motions. Pl.’s Mot. Strike Def.’s Objs. at 1. The government notes there is no binding authority
supporting plaintiff’s assertation the government was “required to choose between either resting
on its objections to MIC’s proffered evidence, or waiving those objections by addressing the
substance of that evidence.” Def.’s Objs. at 3. Courts routinely consider alternative arguments,
including arguments (1) evidence proffered by the opposing party should not be considered, but
(2) even if considered, the evidence cannot support the opposing party’s claim. See, e.g.,
Parsons Evergreene, LLC v. Sec’y of Air Force, 968 F.3d 1359, 1365 (Fed. Cir. 2020) (“The
government argues alternatively that the CDA is limited to contracts for ‘the procurement of
services’ or ‘the procurement of construction . . . of real property, and the contract here does not
qualify.’”). Plaintiff provides no authority stating the Court must abandon the established
litigation practice of offering alternative arguments; therefore the government did not waive its
objection to Paragraph 4E by using the same information to support its own motion for summary
judgment. See id.- 14 -
2. Whether Mr. Bernert’s Declaration Is Hearsay or Expert Witness
Opinion
a. Paragraphs 4E and 5–12 in Mr. Bernert’s Declaration
The government objects to Paragraphs 4E and 5–12 in Mr. Bernert’s Declaration, arguing
they contain “allegations of fact beyond Mr. Bernert’s personal knowledge, purportedly based on
academic literature” and “modeling Mr. Bernert purportedly developed” to estimate the project
site’s stream flow. Def.’s Objs. at 1–2. The government asserts Paragraph 4E contains
“statements purporting to relay information contained in academic literature are hearsay not
within any exception” and in Paragraphs 5–12, “statements purporting to relay information
contained in Exhibits L–S are hearsay not within any exception.” Id. at 2 (citing FRE 801(c)).
According to plaintiff, Mr. Bernert is “an owner, executive (VP) and acts as a project manager
for MIC . . . . He was the lead office person reviewing the Project, conducted an investigation,
looked for and reviewed the limited flow data available for the Project site, and was kept
informed as to what was happening on site.” Pl.’s Mot. Strike Def.’s Objs. at 8. Paragraph 4E
“accurately reflects how [Mr. Bernert] determined that the weather experienced by MIC was
unusually severe.” Mr. Bernert’s Declaration at 3. “Paragraph 5 addresses . . . relevant MIC
Daily Construction Reports, DCR Notes, Quality Control reports, and activities tracking forms
that note and track MIC encountering man-made debris,” and “paragraphs 6 through 12 cover
[separate] Weather Events 1 though [sic] 7.” Pl.’s Mot. Strike Def.’s Objs. at 9.
Plaintiff presented Mr. Bernert as a lay witness. Counsel for plaintiff stated during oral
argument Mr. Bernert’s Declaration is based on an after-the-fact investigation.5 When the Court
asked whether Mr. Bernert’s investigation “is an after-the-fact investigation,” plaintiff’s counsel
replied, “[y]es . . . . It would have started at the—when the claim was being prepared.” Tr. at
53:2–7. Plaintiff’s counsel repeatedly conceded Mr. Bernert was not personally present at the
project site during the time plaintiff complained of poor weather. When the Court asked whether
plaintiff’s counsel “would agree then that Mr. Bernert is commenting on events that he did not
actually witness and walking through a process that did not happen at the time in 2014,” he
replied: “Yes . . . . I mean, Mr. Bernert was—as you said, he kept informed of what was going
on at the project site. He would receive email communications and things like that. But if
you’re asking about actual eyes on the project, watching the river go up and down, then no.” Id.at 54:24–55:10. Mr. Bernert based his opinion on (1) flow data prepared by others and (2) being
“kept informed [by others] as to what was happening on site.” Pl.’s Mot. Strike Def.’s Objs. at
13; Mr. Bernert’s Declaration at 2–3.
Regarding the admissibility of evidence at summary judgment, RCFC 56 states “[a] party
asserting that a fact cannot be or is genuinely disputed must support the assertion by citing to
particular parts of materials in the record, including depositions, documents, electronically stored
information, affidavits or declarations, stipulations . . . , admissions, interrogatory answers, or
other materials.” RCFC 56(c)(1)(A). RCFC 56(c) also says, however, “[a] party may object that
5
The Court also asked plaintiff’s counsel whether Paragraph 4E is “a historical assessment of what [Mr. Bernert]
did at the time” and “not what [Mr. Bernert] did in 2014.” Plaintiff’s counsel stated “[Paragraph 4E] is what [Mr.
Bernert] did after the fact.” Tr. at 53:5–16.
- 15 -
the material cited to support or dispute a fact cannot be presented in a form that would be
inadmissible in evidence.” RCFC 56(c)(2). RCFC 56(c) adds, “[a]n affidavit or declaration used
to support or oppose a motion must be made on personal knowledge, set out facts that would be
admissible in evidence, and show that the affiant or declarant is competent to testify on the
matters stated.” RCFC 56(c)(4).
“‘To be acceptable at summary judgment stage, the evidence presented in the affidavit
must be evidence that would be admissible if presented at trial through the testimony of the
affiant as a sworn witness.’” Scosche Indus., Inc. v. Visor Gear, Inc., 121 F.3d 675, 682 (Fed.
Cir. 1997) (quoting 11 James Wm. Moore, Moore’s Federal Practice § 56.14[1][d], at 56–162
(3d ed.1997)). FRE 701 requires “if a witness is not testifying as an expert, testimony in the
form of an opinion is limited to one that is: (a) rationally based on the witness’s perception; (b)
helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and (c)
not based on scientific, technical, or other specialized knowledge within the scope or Rule 702.”
The Federal Circuit has not ruled on the applicability of Rule 701 to after-the-fact investigations,
but other judges on this court have held personal knowledge of an event to be required of a lay
witness. See DataMill, 91 Fed. Cl. at 735 (“[A] witness may testify to an event or occurrence
that he has seen himself, but not one that he knows only from the description of others.”)
(quoting 3 C.B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 6:5 (3d ed. 2007)); BPLW
Architects & Eng’rs, 106 Fed. Cl. at 545 (“The party offering [Rule 701 lay witness] testimony
must show that the witness had an adequate opportunity to observe and presently recalls the
observation, and a person who has no knowledge of a fact except what another has told him does
not satisfy the requirement of knowledge from observation.”) (internal citation omitted); RP1
Fuel Cell, LLC, 120 Fed. Cl. at 319 (2015) (“[A] lay witness can testify on his or her
‘perception,’ as long as it is connected to their personal knowledge.”) (internal citation omitted),
aff’d, 644 F. App’x 1012 (Fed. Cir. 2016).
Plaintiff cited decisions from other district courts to argue an after-the-fact investigation
should be allowed as lay witness testimony under Rule 701. Pl.’s Mot. Strike Def.’s Objs. at 5–7
(citing Acosta v. Cent. Laundry, Inc. 273 F.Supp.3d 553 (E.D. Pa. 2017) and United States v.
Whaley, 860 F.Supp.2d 584 (E.D. Tenn. 2012)); see also Tr. at 53:16–23. In Acosta, the district
court admitted plaintiff’s witness’s after-the-fact investigation because plaintiff’s witness
“proffered testimony [] reasonably derived from the data that she personally perceived” by
conducting in-person interviews and examining defendant’s in-house record including time cards
and hand-scanner records. Acosta, 273 F.Supp.3d at 557–58. Nonetheless, the district court
confessed its decision to allow this testimony as lay opinion was a “modest departure from the
core area of lay opinion testimony.” Id. at 557 (internal citation omitted). The district court in
Whaley allowed the government’s witnesses’ proposed lay opinion testimony despite defendants’
challenge because “[d]efendants are confusing fact with lay opinion.” Whaley, 860 F.Supp.2d at
592. The court in Whaley also held the testimony was “‘not based upon scientific, technical, or
other specialized knowledge within the scope of Rule 702,’ but is instead based upon their own
‘particularized knowledge,’ i.e., their familiarity with the underwriting process and lending
policies at their banks, that they have due to their employment at their respective banks.” Id. at
596 (quoting FRE 701(c) and FRE 701 (Advisory Committee’s Note)) (emphasis in original).
Whaley is inapposite because it discusses knowledge witnesses gained from their routine work
- 16 -
experience, while Mr. Bernert in this case gained his knowledge from an after-the-fact
investigation for plaintiff. Compare id. with Tr. at 53:5–54:7.
Plaintiff’s counsel stated Mr. Bernert’s testimony is based on an after-the-fact
investigation and conceded Mr. Bernert was not present at the project site during the time
plaintiff alleged poor weather. Tr. at 53:5–54:7. Mr. Bernert’s after-the-fact investigation
summary cites numerous third-party scientific reports and academic literature reviewing
hyrdology of the dredging area and historical river flow rates.” Mr. Bernert’s Declaration at 3–5
(Discussion of third-party sources included: “the hydrology of the system is presented in Nelson
(1982), Lieb and Thomas (2005) and Czuba, et al., (2010);” “Nelson (1982) and Czuba, et al.
(2010) have noted the winter flow in Sol Duc is 1.5 times higher than the other tributaries;”
“Using data from the existing gages a combined flow hydrograph for the La Push site during the
work window was compiled . . . . The data is comparable to the published studies and was used
to estimate steam flow (in cubic feet per seconds [cfs]) at the La Push project site;” “The
historical data for 37 years of flow regimes at the Calawah River gage is representative of the
recent conditions indicating the storm events on one of the system’s major tributaries . . . .”).
Mr. Bernert thus lacks the personal knowledge of the events to which he is testifying, contrary to
Rule 701’s requirements for lay witness opinion. See FRE 701; Scosche, 121 F.3d at 682(quoting 11 James Wm. Moore, Moore’s Federal Practice § 56.14[1][d], at 56–162 (3d ed.1997))
(“‘To be acceptable at summary judgment stage, the evidence presented in the affidavit must be
evidence that would be admissible if presented at trial through the testimony of the affiant as a
sworn witness.’”); DataMill, 91 Fed. Cl. at 735 (“[A] witness may testify to an event or
occurrence that he has seen himself, but not one that he knows only from the description of
others.”). Thus, the Court finds plaintiff’s proffered testimony in Paragraphs 4E and 5–12 of Mr.
Bernert’s Declaration are inadmissible because they are expert opinion testimony from a lay
witness. Id. The Court’s exclusion of statements in Paragraphs 5–12, however, is limited to only
the assertions in Mr. Bernert’s declaration that go beyond the records cited—specifically,
statements related to calculations of flow rates or conclusions regarding weather events; the
government does not object to detail within Exhibits L–S cited as the Exhibits are admissible
business records. See FRE 803(6)(b); Def.’s Objs. at 2, n.1 (“The United States does not object
to the Court’s consideration of [Exhibits L–S] themselves to the extent they are plaintiff’s
business records. The exhibits do not provide support for the factual assertions Mr. Bernert
makes in his declaration.”).
b. Exhibit H
The government objects to Exhibit H of Mr. Bernert’s Declaration as impermissible
hearsay and improper lay witness opinion. Def.’s Objs. at 2–3; see Pl.’s Resp. to Def.’s First Set
of Interrogs. and Second Req. for Produc. of Docs., Exhibit H, ECF No. 81-1. The government’s
objection describes Exhibit H as “consist[ing] of discovery responses in this case prepared and
served on the United States by plaintiff.” Def.’s Objs. at 2. The government then asserts Exhibit
H consists of impermissible hearsay because “[d]iscovery responses are hearsay not within any
exception when offered for the truth of the matter asserted by the party providing those
responses.” Id. at 3 (citing FRE 801(c)). In response, plaintiff does not dispute the discovery
responses themselves contained in Exhibit H are impermissible hearsay if offered for the truth of
the matter without an exception; rather, plaintiff argues “[a]s testimony in his declaration,
- 17 -
[Exhibit H] is exempt from hearsay” because “[t]he Advisory Committee Notes for FRE 802
recognize summary judgment declarations as being exempt from hearsay exclusions.” Pl.’s Mot.
Strike Def.’s Objs. at 10 (citing FRE 802. The Rule Against Hearsay (Advisory Committee’s
Note)) (“The following examples illustrate the working of the exception: [. . .] Rule 56:
affidavits in summary judgment proceedings.”). Plaintiff also argues Exhibit H is permissible
lay witness opinion. Id. The government observes plaintiff “does not dispute that a party’s use
of its own interrogatory responses as substantive evidence constitutes hearsay not within any
exception.” Def.’s Reply at 6 (internal citation omitted). The government also notes plaintiff
“cites no authority to support its attempt to circumvent FRE 801(c) by ‘incorporating’
inadmissible discovery responses into a summary judgment declaration.” Id. At oral argument,
plaintiff explained “all the declaration does here is basically pull in what had been done years
prior as part of the interrogatory responses and as part of the claim documents.” Tr. at 63:5–
8. The government responded: “the problem with [plaintiff] citing to interrogatory number 9 is
that interrogatory number 9 is hearsay. . . . [A] party cannot use their own interrogatory
responses as substantive evidence. So it doesn’t work for that reason.” Id. at 64:9–17.
A party may not rely on inadmissible hearsay offered for the truth of the matter asserted
in opposing a motion for summary judgment. FRE 802; RCFC 56(c)(4) (“An affidavit or
declaration used to support or oppose a [summary judgment] motion must be made on personal
knowledge, set out facts that would be admissible in evidence, and show that the affiant or
declarant is competent to testify on the matters stated.”); Scosche, 121 F.3d at 681–82; Brooks v.
Tri–Systems, Inc., 425 F.3d 1109, 1111 (8th Cir. 2005). In Scosche, the Federal Circuit held if a
declaration is “hearsay[,] it therefore does not satisfy the requirement of Fed.R.Civ.P. 56(e) [now
FRCP 56(c)] that affidavits opposing summary judgment ‘shall set forth such facts as would be
admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the
matters stated therein.’” 121 F.3d at 681. In Brooks, the Eighth Circuit explained “[w]hen an
affidavit contains an out-of-court statement offered to prove the truth of the statement that is
inadmissible hearsay, the statement may not be used to support or defeat a motion for summary
judgment.” Brooks, 425 F.3d at 1111. The Eighth Circuit also held in Brooks, “deposition
testimony must also be admissible to be considered in ruling on a motion for summary
judgment.” Id. at 1112; see also Miller v. Solem, 728 F.2d 1020, 1026 (8th Cir. 1984) (affidavits
containing hearsay statements failed to comply with Rule 56(e) [now Rule 56(c)] requirement
“that the facts set forth in affidavits be admissible in evidence”); Pan-Islamic Trade Corp. v.
Exxon Corp., 632 F.2d 539, 556 (5th Cir. 1980) (“hearsay evidence in [Rule 56] affidavits is
entitled to no weight”); Block v. City of Los Angeles, 253 F.3d 410, 419 (9th Cir. 2001) (district
court abused its discretion in considering at summary judgment a declaration “based on
inadmissible hearsay”); State Mut. Life Assurance Co. of Am. v. Deer Creek Park, 612 F.2d 259,
264–65 (6th Cir. 1979) (“Affidavits composed of hearsay and opinion evidence do not satisfy
Rule 56(e) [now Rule 56(c)] and must be disregarded.”).
Plaintiff attempts to introduce impermissible hearsay for the truth of the matter asserted
by repackaging its interrogatory responses through a declaration in support of its summary
judgment motion. Tr. at 63:5–8 (clarifying “all the declaration does here is basically pull in what
had been done years prior as part of the interrogatory responses and as part of the claim
documents”). According to plaintiff, Exhibit H is exempt from the rule against introducing
hearsay for the truth of the matter because it is “testimony in [Mr. Bernert’s] declaration.” Pl.’s
- 18 -
Mot. Strike Def.’s Objs. at 10. Plaintiff’s assertion fails to evade the Federal Circuit’s
requirement in Scosche “that affidavits opposing summary judgment ‘shall set forth such facts as
would be admissible in evidence, and shall show affirmatively that the affiant is competent to
testify to the matters stated therein.’” 121 F.3d at 681. Plaintiff effectively admits the
interrogatory responses are not themselves admissible into evidence by seeking to reintroduce
them through a declaration. See Tr. at 63:5–8. This fails the requirement the Eighth Circuit
explained in Brooks: “[w]hen an affidavit contains an out-of-court statement offered to prove the
truth of the statement that is inadmissible hearsay, the statement may not be used to support or
defeat a motion for summary judgment.” Brooks, 425 F.3d at 1111. The “deposition testimony”
plaintiff seeks to admit through a declaration is not “admissible to be considered in ruling on a
motion for summary judgment.” Id. 1112; see also Innovention Toys, LLC v. MGA Entm’t, Inc.,
No. CIV.A. 07-6510, 2012 WL 5398476, at *3 (E.D. La. Nov. 4, 2012) (sustaining an objection
to a party’s exhibit introducing its own interrogatory responses because “discovery responses are
self-serving hearsay, and no exception to the hearsay rule applies”). Exhibit H is inadmissible
hearsay insofar as plaintiff offers it for the truth of the matter asserted without an exception, and
plaintiff’s act of incorporating interrogatory responses in a declaration does not create an
exception to the Federal Rules of Evidence. FRE 802; Scosche, 121 F.3d at 681 (“[A]ffidavits
opposing summary judgment ‘shall set forth such facts as would be admissible in
evidence . . . .’”); Innovention Toys, 2012 WL 5398476, at *3 (“[D]iscovery responses are self-
serving hearsay, and no exception to the hearsay rule applies”). The Court, therefore, will not
consider plaintiff’s citations of inadmissible hearsay in Exhibit H for the truth of the matter
asserted. FRE 802; RCFC 56(c); Scosche, 121 F.3d at 681–82 (holding “a declaration submitted
in opposition to the summary judgment motion . . . is hearsay; it therefore does not satisfy the
requirement of Fed.R.Civ.P. 56(e) [now FRCP 56(c)] that affidavits opposing summary
judgment ‘shall set forth such facts as would be admissible in evidence, and shall show
affirmatively that the affiant is competent to testify to the matters stated therein’”).
While the government objected wholesale to the citation of Exhibit H for the truth of the
matter asserted as hearsay, its improper lay witness objection was narrower: “Exh. H also
contains purported analysis of weather patterns and sediment content that is not based upon the
personal knowledge of plaintiff or of the individual who has verified the responses (Joseph
Bernert), and that, if offered as testimony, would constitute improper lay witness opinion that:
(1) is not rationally based on the witness’s perception, and; (2) is based on scientific, technical,
or other specialized knowledge within the scope of Rule 702.” Def.’s Objs. at 3 (citing FRE
701(a), (c)). The government explains if plaintiff’s discovery responses in Exhibit H are
“construed as testimony that Mr. Bernert would offer at trial, that testimony would also
constitute both: (1) alleged facts relating to project site conditions . . . beyond his own personal
knowledge; and (2) impermissible lay witness opinion under Rule 701.” Def.’s Reply at 6–7.
When the government deposed Mr. Bernert regarding the preparation of Exhibit H, he clarified
he was the author of some sections of Exhibit H and reviewed the entire document.6 At oral
6
The government deposed Mr. Bernert in 2018 regarding the preparation of Exhibit H:
Q. All right. And were you responsible for preparing these responses [in Exhibit H]?
A. Yes.
Q. Did anybody else assist you with preparing these responses?
- 19 -
argument the parties focused on Exhibit H’s Interrogatory Number 9 as the disputed testimony
from Mr. Bernert, and plaintiff’s counsel explained “the interrogatory was attached to the
document and incorporated in, and [Mr. Bernert] testified that it accurately reflects how
[plaintiff] determine[d] that the weather experienced by MIC was unusually severe.” Tr. at
51:19–22. As the Court held supra V.B.2.a., Mr. Bernert lacks personal knowledge to provide
lay opinion regarding the content in paragraphs 4E and 5–12 of his declaration. Mr. Bernert
stated in Paragraph 4E of his declaration: “My answer to Interrogatory No. 9 accurately reflects
how I determined that the weather experienced by MIC was unusually severe.” Mr. Bernert’s
Declaration at 3. For the same reasons Mr. Bernert cannot provide the lay opinion in Paragraph
4E of his declaration discussed supra V.B.2.a. (the testimony is based on an after-the-fact
investigation and Mr. Bernert was not present at the project site during the time plaintiff alleged
poor weather), the Court also finds Mr. Bernert may not offer Interrogatory Number 9 as lay
witness testimony. See FRE 701; Scosche, 121 F.3d at 682 (quoting 11 James Wm. Moore,
Moore’s Federal Practice § 56.14[1][d], at 56–162 (3d ed.1997)) (“‘To be acceptable at summary
judgment stage, the evidence presented in the affidavit must be evidence that would be
admissible if presented at trial through the testimony of the affiant as a sworn witness.’”);
Felkins v. City of Lakewood, 774 F.3d 647, 651 (10th Cir. 2014) (lay evidence “based on
scientific, technical, or other specialized knowledge” “is inadmissible in court and thus cannot be
used to oppose summary judgment”); DataMill, 91 Fed. Cl. at 735 (“[A] witness may testify to
an event or occurrence that he has seen himself, but not one that he knows only from the
description of others.”).
The government’s objection stated Exhibit H “also contains purported analysis of
weather patterns and sediment content that is not based upon the personal knowledge of plaintiff
or of the individual who has verified the responses (Joseph Bernert), and that, if offered as
testimony, would constitute improper lay witness opinion.” Def.’s Objs. at 3. The government
added the interrogatories in Exhibit H not only offer “weather related opinions” but also “purport
to opine on the meaning and import of ‘steep side cuts’ and ‘dredge angles,’ and provide
anecdotal analysis of sediment samples.” Def.’s Reply at 7. The government describes the
analysis in these interrogatories as providing “improper opinion on subjects far beyond the
weather conditions Mr. Bernert opines about in his declaration, including speculative opinions on
sediment and clay content that are far beyond the bounds of lay opinion permitted by FRE 701.”
Id. Much of Exhibit H contains analysis the government does not object to, and the government
only “requests that the Court disregard those statements for the purposes of resolving the parties’
cross-motions for summary judgment.” Def.’s Objs. at 1. The Court therefore does not
understand the government to be asking the Court to disregard Exhibit H as entirely inadmissible
for the purpose of Mr. Bernert’s lay witness testimony. Accordingly, the Court will not consider
A. Attorneys.
Q. Other than your attorneys?
A. I believe components were done by Mike Harrison—or I know components were done by
Mike Harrison, so I don’t have to believe. So I did certain sections; he did sections.
Q. You mean you wrote some sections; he wrote some sections?
A. Yes, and then I reviewed the whole thing, too.
Suppl. Decl. of David H. Bowser in Supp. of Pl.’s Opp’n in Resp. to Def.’s Objs. to Inadmissible Evidence Offered
in Supp. of Pl.’s Mots. for Summ. J., et al., Ex. T at 6, ECF No. 85-1 (Dep. of Joseph Bernert Taken in Behalf of the
Def.).
- 20 -
testimony from Mr. Bernert in Exhibit H offering expert opinion, particularly Mr. Bernert’s
testimony “contain[ing] purported analysis of weather patterns and sediment content that is not
based upon . . . personal knowledge.” Id. at 3; FRE 701; Scosche, 121 F.3d at 682; Felkins, 774
F.3d at 651; DataMill, 91 Fed. Cl. at 735.7
VI. Plaintiff’s Motion to Designate Joseph Bernert as an Expert
Plaintiff moved in the alternative to designate Mr. Bernert as an expert witness. See Pl.’s
Mot. Strike Def.’s Objs. at 11.8 The government objected to plaintiff’s motion as “reopening
expert discovery” without good cause. Def.’s Reply at 7.
A. Legal Standard for Moving to Designate an Expert Witness After Close of
Discovery
RCFC 16(b)(4) provides “[a] schedule may be modified only for good cause and with the
judge’s consent.” The Federal Circuit has not ruled on the applicability of RCFC 16(b)(4) (or
FRCP 16(b)(4)) to the issue of designating an expert witness after the close of discovery. The
Federal Circuit has, however, applied the “good cause” requirement of Rule 16(b)(4) to analyze
other motions to modify a court’s schedule. See Advanced Software Design Corp. v. Fiserv, Inc.,
641 F.3d 1368, 1381 (Fed. Cir. 2011) (applying the “good cause” requirement in reviewing a
district court’s denial of a party’s untimely motion to amend its complaint). The Federal Circuit
explained, “[u]nder the good cause standard, the threshold inquiry is whether the movant has
been diligent.” Id. In Advanced Software, the Federal Circuit held the district court did not
abuse its discretion when it found the movant “unduly delayed seeking to amend because it ‘had
ample time to conduct discovery and to [amend its pleading]’” but failed to do so for four
months. Id.Another judge of this court adopted a four-factor test from the Fifth Circuit in applying
Rule 16(b)(4) to determine whether good cause existed for a request to amend the discovery
schedule to designate an expert witness after discovery closed:
[F]our factors should be considered by a trial court in determining whether “good
cause” exists to modify a schedule under Fed. R. Civ. P. 16 to accommodate the
7
Mr. Bernert also discussed Interrogatories 3, 5, 7, and 8 in Paragraph 4 of his declaration. Mr. Bernert’s
Declaration at 2. The other Interrogatories differ from Interrogatory No. 9 because they consist of Mr. Bernert’s lay
witness testimony as to his and plaintiff’s activities and present sense impressions. For example, Paragraph 4A
states “[m]y answer to Interrogatory No. 3 accurately describes the process and equipment MIC planned and used to
dredge the project,” and Paragraph 4B states “my answer to Interrogatory No. 5 accurately describes how MIC
viewed certain specifications during bidding.” Id. Insofar as Mr. Bernert wishes to offer admissible lay testimony
in a declaration he may do so, but the Court will not give any additional weight to a declaration’s citation of the
interrogatories as they are inadmissible hearsay. See Scosche, 121 F.3d at 682 (quoting 11 James Wm. Moore,
Moore’s Federal Practice § 56.14[1][d], at 56–162 (3d ed.1997)) (“‘To be acceptable at summary judgment stage,
the evidence presented in the affidavit must be evidence that would be admissible if presented at trial through the
testimony of the affiant as a sworn witness.’”).
8
When the Court asked whether the government agreed its objections to Paragraphs 4E and 5–12 as impermissible
hearsay would be moot if the Court allowed Mr. Bernert to testify as an expert witness, counsel for the government
replied, “if he were an expert witness, he would be permitted to rely on materials such as the purported academic
literature that he cites in his declaration.” Tr. at 56:9–21.
- 21 -
designation of an additional expert witness: (1) the reasons for the moving
party’s failure to designate the witness in compliance with an existing schedule;
(2) the importance of the testimony; (3) potential prejudice in allowing the
testimony; and (4) the availability of a cure for any prejudice.
Sys. Fuels, Inc. v. United States, 111 Fed. Cl. 381, 383 (2013). The court in System Fuels denied
plaintiff’s motion to designate a proffered witness as an expert 11 months after plaintiff’s
deadline but before the close of the government’s expert discovery, observing if it granted the
motion “the Government would need to investigate [plaintiff’s new expert’s] assertions and
might need to hire a new expert,” and while “discovery deadlines can be extended, the court
cannot compensate the Government for the added expense it would incur.” Id. at 384; see also
1488, Inc. v. Philsec Inv. Corp., 939 F.2d 1281, 1288 (5th Cir. 1991) (listing the four factors);
Eichorn v. AT&T Corp., 484 F.3d 644, 651 (3d Cir. 2007) (affirming a trial court’s ruling
denying the addition of an expert witness where the court considered plaintiffs’ “explanation for
the lateness of their request, the prejudice that would result if it were granted or denied, and the
extent to which the plaintiffs’ [initial] decision to proceed without expert testimony was a
deliberate one”). The Third Circuit also explains it and other circuits “have frequently upheld a
trial court’s exercise of discretion to deny a party’s motion to add experts or other fact witnesses
after the close of discovery or after a deadline in a scheduling order.” Eichorn, 484 F.3d 650–51
(citing Geiserman v. MacDonald, 893 F.2d 787, 790–91 (5th Cir. 1990) and Burks v. Okla.
Publ’g Co., 81 F.3d 975, 978–80 (10th Cir. 1996)).
B. Analysis
The Federal Circuit requires this Court to apply RCFC 16(b)(4)’s good cause standard in
deciding whether to modify the schedule. Advanced Software Design Corp., 641 F.3d at 1381.
The Federal Circuit explained in Advanced Software, “[u]nder the good cause standard, the
threshold inquiry is whether the movant has been diligent.” Id. The Federal Circuit has not
spoken directly on the question of applying the good cause standard to the question of modifying
the schedule to designate an expert witness after expert witness discovery has ended; therefore,
the Court will evaluate whether good cause exists to modify a schedule pursuant to RCFC
16(b)(4) using the four-factor analysis the Fifth Circuit employs: (1) the reasons for the moving
party’s failure to designate the witness in compliance with an existing schedule; (2) the
importance of the testimony; (3) potential prejudice in allowing the testimony; and (4) the
availability of a cure for any prejudice. 1488, Inc., 939 F.2d at 1288; see Sys. Fuels, 111 Fed. Cl.
at 383 (applying the Fifth Circuit’s four-factor analysis).9 The Fifth Circuit’s approach is
consistent with the Third Circuit’s test the court employed in Eichorn. See 484 F.3d at 651.
1. The Reasons for Plaintiff’s Failure to Designate Mr. Bernert as an
Expert Witness in Compliance with the Existing Schedule
Plaintiff argues it presented Mr. Bernert as a lay witness because it had “a reasonable
belief supported by general contracting practice and case law that Mr. Bernert would be able to
offer his lay opinions [based on after-the-fact investigations] under FRE 701.” Tr. at 57:15–20.
9
Plaintiff’s counsel was unable to identify a case from this Court or the Federal Circuit finding good cause to
modify an expert discovery schedule under Rule 16. See Tr. at 76:8–15.
- 22 -
Plaintiff distinguishes delay resulting from its reliance on its good-faith understanding of the law
from a “kind of deliberate, knowing act by the party that they ignore, and then they come back
later saying, hey, I made a mistake back then by ignoring this.” Id. at 79:12–17. The
government stated at oral argument it did not know of “any case law whatsoever that suggests
that a mistake of law is a basis for reopening a discovery schedule.” Id. at 64:4–6. When the
Court asked plaintiff for authority in case law of a court finding “good cause exists to modify a
schedule under Rule 16 that’s similar to this situation,” counsel for plaintiff replied “I haven’t
been able to locate a specific case that lines up well factually with the situation that we have
here. If we had that, I would have cited it in my briefing back to the Court.” Id. at 76:9–17. The
government agreed with plaintiff “there are no cases where, under circumstances such as this,
where it’s simply a result of a mistake of law, the Court has permitted a reopened expert
discovery schedule.” Id. at 77:7–10.
Rule 701 does not permit a lay witness to testify without personal knowledge or “based
on scientific, technical, or other specialized knowledge within the scope of Rule 702.” FRE
701(a); FRE 701(c). Plaintiff improperly sought to apply Rule 701 to present Mr. Bernert’s
testimony as lay witness opinion. See supra V.B.2. The expert discovery window for this case
closed on 6 December 2019. See Joint Status Report, ECF No. 69. In the Federal Circuit,
“[u]nder the good cause standard, the threshold inquiry is whether the movant has been diligent.”
Advanced Software Design Corp., 641 F.3d at 1381 (applying the “good cause” requirement in
affirming a district court’s denial of a party’s untimely motion to amend its complaint). In
Advanced Software, the Federal Circuit held the district court did not abuse its discretion when it
found the movant “unduly delayed seeking to amend because it ‘had ample time to conduct
discovery and to [amend its pleading]’” but failed to do so for four months. Id. Plaintiff in this
case did not move until seven months after the close of expert discovery and nine months after
plaintiff’s expert witness reports deadline to designate Mr. Bernert as an expert witness. See
Pl.’s Mot. Strike Def.’s Objs. at 11. Plaintiff had ample time to review the rules and seek to
amend the schedule to re-designate Mr. Bernert as an expert witness. Plaintiff’s reason for its
failure to timely seek to amend the schedule, however, does not justify the undue delay of over
seven months from the close of expert discovery and nine months from plaintiff’s expert witness
reports deadline and the cost to the government of reopening expert discovery. See Sys. Fuels,
111 Fed. Cl. at 384 (denying plaintiff’s motion to designate a proffered witness as an expert 11
months after plaintiff’s deadline but before the close of the government’s expert discovery
because “the Government would need to investigate [plaintiff’s new expert’s] assertions and
might need to hire a new expert,” and while “discovery deadlines can be extended, the court
cannot compensate the Government for the added expense it would incur”). The American legal
system “ha[s] long recognized the ‘common maxim, familiar to all minds, that ignorance of the
law will not excuse any person, either civilly or criminally.’” Jerman v. Carlisle, McNellie, Rini,
Kramer & Ulrich LPA, 559 U.S. 573, 581 (2010) (quoting Barlow v. United States, 7 Pet. 404,
411 (1833) (Story, J.)). Plaintiffs’ reasons for its failure to designate Mr. Bernert in compliance
with the existing schedule favors the government.
2. The Importance of Mr. Bernert’s Testimony
Counsel for plaintiff argued Mr. Bernert’s testimony is “essential to what’s going on in
the case” and noted “[the issues Mr. Bernert testified on] are central issues to [plaintiff’s] claims
- 23 -
and defenses.” Tr. at 75:16–24. Plaintiff sought to distinguish this case from System Fuels
based on the importance of Mr. Bernert’s testimony. Id. at 75:9–24. According to plaintiff, this
court found for the nonmoving party in System Fuels because “there was little to no benefit from
the testimony.” Id.; see also Sys. Fuels, 111 Fed. Cl. at 384 (finding when analyzing the second
factor, “the court has determined that, [even if the witness was an expert witness], [his]
testimony would be hearsay and irrelevant.”). The government did not dispute the importance of
Mr. Bernert’s testimony for plaintiff. The importance of Mr. Bernert’s testimony favors
plaintiff.
3. Potential Prejudice to the Government
The government argues if the Court allows plaintiff to perform a post hoc designation of
Mr. Bernert as an expert witness, the government will need to incur the expense of “(1) a
renewed discovery period; (2) repeating summary judgment briefing following expert discovery;
and (3) enduring further . . . delay in seeing this case to resolution.” Def.’s Reply at 9–10.
Plaintiff argues the government will not be prejudiced because the government received Mr.
Bernert’s report on 2 November 2017, “years before any applicable due date,” and the
government deposed Mr. Bernert for two days. See Pl.’s Mot. Strike Def.’s Objs. at 12.
The government did not engage an expert during the original discovery window, nor was
it prepared to have an expert to respond to Mr. Bernert regarding the weather issues. Tr. at
66:16–23. Before the parties agreed to the discovery schedule, plaintiff advised the government
it had retained an expert, which prompted the parties to agree on the scheduling order for
discovery. See Def.’s Reply at 8. The government briefly communicated with a potential
rebuttal expert but did not reach any substantive details. Tr. at 69:7–20. On the day plaintiff’s
expert report was due, plaintiff notified the government that plaintiff’s expert withdrew. See
Def.’s Reply at 8. The government thus ceased preparing a rebuttal expert. See Def.’s Reply at
8. In addition, plaintiff stated at oral argument the expert witness it considered retaining would
have testified on issues unrelated to Mr. Bernert’s testimony, so the government’s efforts to
retain a rebuttal expert are unrelated to the expert testimony Mr. Bernert would offer.10 See Tr.
at 58:18–24. During oral argument, counsel for the government expressed concern if plaintiff
were allowed to reopen expert discovery, then the government would have to re-perform the
entire expert discovery process, including procuring and retaining an expert, preparing an expert
report, defending the expert’s deposition, and re-deposing Mr. Bernert as an expert witness. See
Tr. at 69:21–70:11. The government stated “all of those things in terms of the extensive delay of
this case that has already been dragging on for years, as well as the resources in terms of attorney
time, as well as financial resources to retain an expert . . . are all the types of things in [System
Fuels] that go to prejudice to a party.” Id. at 70:12–18. The government also noted the parties
10
Plaintiff conceded the nature of its proposed expert witness at oral argument:
MR. BOWSER: [Plaintiff] wasn’t getting an expert for the unusually severe weather because they
believed that Mr. Bernert would be able to do that . . . . [Plaintiff instead attempted to retain an
expert] about the means and methods that were planned to be used for the dredging itself, a
completely different issue.
Tr. at 58:18–24 (emphasis added).
- 24 -
would need to resubmit summary judgment briefing if plaintiff could reopen discovery, while
“this entire case is in front of [the Court] for disposition.” Id. at 78:6–7.
Even assuming the government is familiar with Mr. Bernert’s testimony from his
interrogatories and two days of deposition, the government did not prepare for Mr. Bernert’s
testimony in an expert witness context. See 67:24–68:13. As the government’s counsel stated
during oral argument, if Mr. Bernert were designated as an expert witness, the government
would have deposed him “by exploring his qualifications with regards to these particular
opinions, by exploring the means and methods that he went through to reach his conclusions,”
which are “not the kinds of things that [an attorney] would ask a fact witness who has simply
verified a set of interrogatories and you’re asking about the parties’ position as reflected in those
interrogatories.” Tr. at 68: 1–13. The government’s familiarity with Mr. Bernert’s testimony
does not mitigate the undue expense and time the government would have to devote to a re-
opened expert discovery schedule. See 1488, Inc., 939 F.2d at 1289 (upholding a district court’s
decision not to modify the discovery schedule when the moving party “failed to provide an
adequate explanation for [its] failure to identify its expert within the designated timetable”
because such a modification “would have entailed additional expense to the [nonmoving party]
and further delayed its day in court”); Sys. Fuels, 111 Fed. Cl. at 384 (“[T]he Government would
need to investigate [the proposed expert witness’s] assertions and might need to hire a new
expert. . . . [T]he court sees no reason to impose the burden of any additional discovery on the
Government.”). The potential prejudice in allowing the testimony favors the government.
4. The Availability of a Cure for Prejudice
Plaintiff offered to “forgo any additional briefing” and “depositions or anything else for
that and supplemental briefs” as cure for the prejudice against the government resulting from
amending the schedule by reopening expert discovery. Tr. at 80:4–11. Plaintiff addressed the
government’s concern about the need to rebrief for summary judgment by arguing “[plaintiff
does not see] that we’re going to require any additional briefing to go in. The Government can
file a supplemental brief to the extent that it thinks it’s applicable.” Id. at 79:2–7.
Even if the Court adopts plaintiff’s proposed cure of allowing only the government to file
additional briefing regarding expert discovery, “the [C]ourt cannot compensate the [g]overnment
for the added expense it would incur” to retain an expert or for the additional attorney hours it
would have to spend on expert discovery. Sys. Fuels, 111 Fed. Cl. at 384; see 1488, Inc., 939
F.2d at 1288–89 (“[Even where] the degree of prejudice suffered by the plaintiff due to the late
designation of an expert would not have been great, a [trial] court still has the discretion to
control pretrial discovery and sanction a party’s failure to follow a scheduling order.”); Dag
Enterprises, Inc. v. Exxon Mobil Corp., 226 F.R.D. 95, 110 (D.D.C. 2005) (“Compelling a party
with ‘clean hands’ to incur significant additional expense and spend a large amount of additional
time in discovery when the opposing side has not acted with diligence and has not shown ‘good
cause’ is simply unwarranted.”). Plaintiff’s failure to designate Mr. Bernert as an expert was due
to its misapprehension of the law, which cannot justify imposing an extra burden on the
government to redo expert discovery over twelve months after the original deadline for
completion of expert depositions and over fifteen months after plaintiff agreed to provide the
government its expert report. See id.; Joint Status Report, ECF No. 69 (jointly proposed dates
- 25 -
requiring plaintiff to provide its expert report to the government on or before 9 September 2019
and closing the expert discovery window on 6 December 2019). The availability of a cure for
prejudice favors the government.
Given plaintiff’s failure to designate Mr. Bernert as an expert witness due to its
misapprehension of law for over seven months after the expert discovery window closed and
nine months after plaintiff’s expert witness reports deadline, the importance of Mr. Bernert’s
testimony to plaintiff does not outweigh the prejudice sustained by the government, and the lack
of an available meaningful cure for the government’s prejudice, no good cause exists for plaintiff
to reopen discovery and designate Mr. Bernert as an expert witness. See Rule 16(b)(4) (“[A]
schedule may be modified only for good cause and with the judge’s consent.”); Advanced
Software Design Corp., 641 F.3d at 1381 (holding a district court did not abuse its discretion in
finding a party failed to show good cause for a four-month delay “[u]nder the good cause
standard, [where] the threshold inquiry is whether the movant has been diligent.”); 1488, Inc.,
939 F.2d at 1289 (“A continuance might have cured any prejudice arising from the [moving
party’s] late designation, but such a remedy would have entailed additional expense to the
[nonmoving party] and further delayed its day in court.”); Sys. Fuels, 111 Fed. Cl. at 384
(denying plaintiff’s motion to designate a proffered witness as an expert 11 months after
plaintiff’s deadline but before the close of the government’s expert discovery because “the
Government would need to investigate [plaintiff’s new expert’s] assertions and might need to
hire a new expert,” and while “discovery deadlines can be extended, the court cannot compensate
the Government for the added expense it would incur”).
VII. Conclusion
For the reasons set forth above, plaintiff’s motion to strike the government’s objections is
DENIED. Plaintiff’s objection to the government’s exhibits for lack of authentication is
DENIED. The government’s request the Court disregard inadmissible statements is GRANTED
as to Paragraphs 4E and 5–12 of Joseph Bernert’s Declaration. The Court further will not
consider Declaration statements taken from Exhibit H, Interrogatory No. 9, and any other
statements in Exhibit H containing analysis of weather patterns and sediment content not based
on personal knowledge. Plaintiff’s motion to designate Joseph Bernert as an expert is DENIED.
No later than two weeks after the date of this Order, on or before 12 January 2021, the
parties shall submit a joint proposal as to the need for supplemental and final summary judgment
briefing, proposing specific page limits and filing deadlines.
IT IS SO ORDERED.
s/ Ryan T. Holte
RYAN T. HOLTE
Judge
- 26 -