David Boland, Inc. v. United States

In the United States Court of Federal Claims
No. 17-166C
(Filed September 22, 2020)
NOT FOR PUBLICATION
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DAVID BOLAND, INC., *
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Plaintiff, *
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v. *
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THE UNITED STATES, *
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Defendant. *
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ORDER
Pending before the Court is plaintiff ’s motion in limine to exclude testimony
from defendant’s expert, Dr. Lin Shen, under Federal Rule of Evidence 702 (“Rule
702”). Pl’ s Mot. in Limine to Exclude Def’s Expert (“Pl.’s Mot.”), ECF No. 38. † “In
general, Rule 702 is viewed as requiring the trial judge to ensure that proffered
expert testimony is both reliable and relevant.” Murfam Farms, LLC ex rel.
Murphy v. United States, No. 06-245T, 2008 WL 4725468, at *1 (Fed. Cl. Sept. 19,
2008) (citing Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999)); see also
Summit 6, LLC v. Samsung Elecs. Co., 802 F.3d 1283, 1295 (Fed. Cir. 2015) (“[A]
district court may exclude evidence that is based upon unreliable principles or
methods, legally insufficient facts and data, or where the reasoning or methodology
is not sufficiently tied to the facts of the case.” (citation omitted)). Reliability turns
on the question of whether the testimony is grounded in scientific methods and
procedures that are accepted in the expert’s discipline. Daubert v. Merrell Dow
Pharm., Inc., 509 U.S. 579, 589–90 (1993); Fed. R. Evid. 702(c) (requiring expert
testimony to be “the product of reliable principles and methods”). Relevance turns
on the question of whether the testimony will “help the trier of fact to understand
the evidence or to determine a fact in issue.” Fed. R. Evid. 702 (requiring expert
testimony to be “based on sufficient facts or data”); see also Daubert, 509 U.S. at
591. “Although under Daubert a judge is required to act as a gatekeeper to prevent
unreliable or irrelevant evidence from being admitted, the trial judge has great
†The day after it was filed, this motion was corrected with the filing of a version
containing the appropriate cover page for Exhibit 15. See ECF No. 39.
discretion in deciding what expert testimony to allow.” Murfam Farms LLC, at *1
(citing Kumho, 526 U.S. at 147). Here, the Court has determined that Dr. Shin’s
testimony is sufficiently reliable and relevant to survive plaintiff ’s motion in limine.
One of plaintiff ’s concerns is that Dr. Shen’s opinions about fiber longevity
appeared for the first time in his deposition and were not disclosed in his report.
See Pl.’s Mot., Ex. 1 at 77:9–23; 102:8–104:20 (discussing fiber longevity concerns
as new); 168:15–18 (“I did not do any research, investigation, about FORTA-FERRO
fibers.”). Because these were newly-minted, plaintiff argues they should be
excluded. Pl.’s Mot. at 16–17. Under Rule 26(a)(2)(B) of the Rules of the Court of
Federal Claims (RCFC), a party’s expert “disclosure must be accompanied by a
written report,” which “must contain . . . a complete statement of all opinions the
witness will express and the basis and reasons for them.” Pl.’s Mot. at 16 (citing
Fed. R. Civ. P. 37(c)(1) (excluding such new information from subsequent
consideration)). But this concern is obviated by the government’s disclaimer that
“Dr. Shen will not testify regarding the longevity of the fibers contained within
Boland’s concrete sewer manholes, nor did [defendant] ever intend to offer him for
that purpose.” Def’s Resp. at 8. As such, the Court expects that Dr. Shen’s
testimony will not be offered to question the longevity of FORTA-FERRO fibers.
Plaintiff also argues that Dr. Shen’s claims regarding possible invisible
cracks in manhole risers lacking steel, see Pl.’s Mot., Ex. 2 at 4–6, are merely
speculative, and that testimony to that effect should be excluded, Pl.’s Mot. at 17–
18. Plaintiff argues that Dr. Shen discounted contrary visual inspection evidence
and offers no data based on reliable methods to suggest invisible cracks existed.
But that is not the point of Dr. Shen’s testimony. As it is being offered to cast doubt
on the methods of Boland’s expert testimony, it understandably offers little in the
way of affirmative arguments, see Pl.’s Mot., Ex. 2 at 2, 5–7. See, e.g., Faulkner v.
Arista Records LLC, 46 F. Supp. 3d 365, 386 (S.D.N.Y. 2014) (citing Marmo v. Tyson
Fresh Meats, Inc., 457 F.3d 748, 759 (8th Cir. 2006) (describing rebuttal expert
testimony as functioning “to explain, repel, counteract, or disprove evidence of the
adverse party,” not necessarily as establishing a case-in-chief)) (permitting expert
testimony to rebut the opinions offered by an opposing expert). And to the extent
Dr. Shen makes affirmative claims, they speak to the strength of different
materials. Pl.’s Mot., Ex. 2 at 3–5. Such claims relate to the tensile strength and
elasticity of “virgin copolymer/Polypropylene” fibers compared to steel, and this data
is derived from relevant scientific literature. Id. at 3. Based on that data, Dr. Shen
concludes that “steel is around 20 time stiffer than polypropylene fiber.” Id.
Although Dr. Shen does not purport to prove that invisible cracks existed in the
steel-free manhole risers, he infers from the absence of steel that the likely
development of invisible cracks was increased when the manhole risers were
transported in the same way that steel-reinforced units were moved. See id. at 5–7.
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 As for Dr. Shen’s methods, they amount to criticizing the methods employed
by plaintiff ’s experts. See, e.g., Johnson v. Mead Johnson & Co., LLC, 754 F.3d 557
(8th Cir. 2014) (holding that courts should be liberal in admitting expert evidence
and such evidence should more often “be tested by the adversary process with
competing expert testimony and cross-examination, rather than excluded by the
court at the outset.” (citing Daubert, 509 U.S. at 590, 596)). He expresses the
opinion that visual inspection of the concrete sections was “ineffective” to identify
cracks below the surface and criticizes plaintiff ’s experts for assuming that the
sections were crack-free. Pl.’s Mot., Ex. 2 at 6–7. While in his deposition Dr. Shen
backed away from the assertion in his report that “plaintiff’s expert reports assume,
without support, that the SMHs were not structurally compromised at the time of
their installation,” Pl.’s Mot., Ex. 2 at 2–3, and acknowledged that visual inspection
constituted “some support,” Pl.’s Mot., Ex. 1 at 121:23–24, this does not eviscerate
the broader acceptability of his testimony.
Ultimately, plaintiff ’s concerns may be raised later to attack the credibility of
Dr. Shen’s testimony, but the same concerns do not adequately convince this Court
that the testimony should be excluded. See, e.g., Daubert, 509 U.S. at 596
(“Vigorous cross-examination, presentation of contrary evidence, and careful
instruction on the burden of proof are the traditional and appropriate means of
attacking shaky but admissible evidence.”); Micro Chem., Inc. v. Lextron, Inc., 317
F.3d 1387, 1392 (Fed. Cir. 2003). Given that defendant has agreed not to present
Dr. Shen’s testimony for any purpose outside of his report, and to the extent that
Dr. Shen’s report relies on sufficient facts and appears to be the product of reliable
principles and methods, plaintiff ’s motion in limine is DENIED. The parties shall
submit a joint status report on or by Tuesday, October 6, 2020, proposing a
schedule for further proceedings.
IT IS SO ORDERED.
s/ Victor J. Wolski
VICTOR J. WOLSKI
Senior Judge
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