Scott Bridge Company, Inc. v. Gresham Smith and Partners
MEMORANDUM OPINION AND ORDER as follows: Defendants motion to strike, exclude or limit the testimony of Dr. Richard Hartman (Doc. 65 ), Defendants motion ]to strike, exclude or limit the testimony of Dane Floyd (Doc. 66 ), Plaintiffs motion to stri ke or exclude the testimony of Ben D. Nolan, III(Doc. 70 ), and Plaintiffs motion to strike or exclude the testimony of Dr. Ted Thomson (Doc. 71 ) are DENIED. See Fed. R. Civ. P. 72, 28 U.S.C. § 636, Order of Reference (Doc. 76 ; Entered 2/23/2015). All other pending motions will be addressed in separate orders or recommendations, as appropriate. Signed by Honorable Judge Paul W. Greene on 10/14/2015. (Attachments: # 1 Civil Appeals Checklist)(dmn, )
IN THE UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF ALABAMA
SCOTT BRIDGE COMPANY,
GRESHAM SMITH AND
Case No. 2:11-cv-1116-WKW-PWG
MEMORANDUM OPINION AND ORDER
This matter is before the court on the following Daubert1 motions: a motion to
strike, exclude or limit the testimony of Dr. Richard Hartman filed by Defendant
Gresham Smith and Partners (hereinafter “Defendant”) (Doc. 65), Defendant’s motion
to strike, exclude or limit the testimony of Dane Floyd (Doc. 66), a motion to strike
or exclude the testimony of Ben D. Nolan, III, filed by Plaintiff Scott Bridge
Company, Inc. (hereinafter “Plaintiff”) (Doc. 70), and Plaintiff’s motion to strike or
exclude the testimony of Dr. Ted Thomson (Doc. 71). The motions have been briefed
by the parties and are ripe for consideration. They are taken under submission on the
See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). See also Fed.
R. Evid. 702.
record and without a hearing.2
INTRODUCTION AND BACKGROUND3
Plaintiff filed this action in tort against Defendant alleging professional
negligence, gross negligence, and/or wantonness. Plaintiff’s claims relate to designs
that Defendant prepared for use by Plaintiff in constructing “deep water” piers 7, 8,
and 9 of the B.B. Comer Bridge in the Tennessee River.
Defendant describes the relationship between it and the Plaintiff and the B.B.
Comer Bridge in its brief in support of its motion for summary judgment, which it
incorporated by reference into its Daubert motions, as follows:
“In March of 2001, Defendant ... contracted with the Alabama
Department of Transportation (ALDOT) to serve as the design engineer
for the B. B. Comer Bridge Replacement Project ... which involved the
replacement of the B. B. Comer Bridge on State Route 35 crossing the
Tennessee river in Scottsboro, Alabama. The bridge project was divided
into three phases. Phase II included the section of the bridge crossing
the main channel of the Tennessee River and involved Piers 7, 8 and 9
of the bridge. ALDOT contracted separately with Plaintiff ... as the
contractor for Phase II of the bridge project.”
Upon review of the record, a Daubert hearing is unnecessary to resolve the motions at
The following is offered to supply context. Nothing herein should be construed as an
express or implied finding of fact, and the parties should not attempt to extract clues as to the
court’s deliberations on matters associated with the pending motion for summary judgment or, if
necessary, the trial.
(Doc. 68 at pp. 1-2). Plaintiff asserts that while preparing its cofferdam4 design for
the construction of the piers, its engineers noticed a potentially inadequate concrete
seal designed by Defendant and notified ALDOT of the problem in early October
2009. (Doc. 87 at pp. 1-2).
Plaintiff further describes the dispute that arose between it and Defendant as
“ALDOT directed [Defendant] to evaluate its defective design
and then develop a re-design to solve the problem. In its first
evaluation, [Defendant] concluded its original design was “not good’
and so informed the ALDOT. Several weeks of re-designs and
uncertainty over the ultimate solution ensued until Scott Bridge
was finally able to implement the re-designed work at the end of
(Doc. 87 at pp.1-2). ALDOT is not a party to these proceedings. Separate and apart
from this case, ALDOT and Plaintiff reached an agreement whereby ALDOT paid
According to Plaintiff:
“Cofferdams are temporary structures that are built around the drilled shafts
for bridge foundations to allow people and equipment to safely work below ground
or water level to construct a permanent structure. The water inside the cofferdam is
pumped out so the bridge pier footing and columns can be built in dry conditions.
In order to safely pump the water out of the cofferdam, a concrete seal is poured
inside the bottom of the cofferdam and serves to resist buoyancy of the structure
when the water is pumped out. The seal concrete must be of sufficient mass and
depth to offset the buoyant forces created by the pumping and removal of water from
inside the cofferdam and the upward pressures created by water outside the
cofferdams. If the seal concrete thickness is not of sufficient mass or depth, pumping
out the water will result in flotation and catastrophic collapse of the cofferdam.”
(Doc. 95 at p. 1, fn. 1.)
Plaintiff a sum of money to compensate Plaintiff for losses associated with the redesigns on the B.B. Comer Bridge project. Plaintiff alleges that Defendant’s redesigns “caused considerable construction damages and costs to Plaintiff, the balance
of which Plaintiff now seeks recovery in this action.” (Doc. 70 at p. 2).
In support of its allegations, claims, and petition for damages, Plaintiff relies
on the testimony of two proffered expert witnesses: Dr. Richard Hartman, P.E., and
Dane Floyd, C.P.A. Defendant relies on the proffered expert testimony of Ben Nolan,
III, P.E., and Dr. Ted Thomson, P.E. Each proffered expert is the subject of a
LEGAL PRINCIPLES AND DISCUSSION
Recently, this court set out the standard of review for motions to exclude expert
testimony as follows:
The admissibility of expert testimony is governed by Federal Rule
of Evidence 702 and Daubert [v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)] and its progeny.
Rule 702 provides:
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
(d) The expert has reliably applied the principles and
methods to the facts of the case.
Fed. R. Evid. 702.
In Daubert, the Supreme Court emphasized that Rule 702 assigns
the trial court a gatekeeping role to “ensure that any and all scientific
testimony or evidence admitted is not only relevant, but reliable.” 509
U.S. at 589 & 597, 113 S.Ct. 2786; see also Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 141, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999)
(“[T]he Federal Rules of Evidence ‘assign to the trial judge the task of
ensuring that an expert’s testimony rests both on a reliable foundation
and is relevant to the task at hand.’” (quoting Daubert, 509 U.S. at 596,
113 S.Ct. 2786)). This gatekeeping responsibility is the same when the
trial court is considering the admissibility of testimony based upon
“‘technical’ and ‘other specialized knowledge.’” Kumho Tire, 526 U.S.
at 141, 119 S.Ct. 1167 (quoting Fed. R. Evid. 702).
In light of Daubert’s “gatekeeping requirement,” the Eleventh
Circuit requires district courts to engage in a “rigorous three-part
inquiry” for assessing the admissibility of expert testimony under Rule
Trial courts must consider whether: “(1) [T]he expert is
qualified to testify competently regarding the matters he
intends to address; (2) the methodology by which the
expert reaches his conclusions is sufficiently reliable as
determined by the sort of inquiry mandated in Daubert; and
(3) the testimony assists the trier of fact, through the
application of scientific, technical, or specialized expertise,
to understand the evidence or to determine a fact in issue.”
United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004) (quoting
City of Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548, 562 (11th
Cir. 1999)). These requirements are known as the “qualifications,”
“reliability,” and “helpfulness” prongs. See id. “The burden of
establishing qualification, reliability, and helpfulness rests on the
proponent of the expert opinion,” id., and the proponent must meet its
burden by a preponderance of the evidence. Boca Raton Cmty. Hosp.,
Inc. v. Tenet Health Care Corp., 582 F.3d 1227, 1232 (11th Cir. 2009);
see also Allison v. McGhan Med. Corp., 184 F.3d 1300, 1306 (11th Cir.
1999) (In addition, we note that “[t]he burden of laying the proper
foundation for the admission of expert testimony is on the party offering
the expert, and the admissibility must be shown by a preponderance of
the evidence.” (citing Daubert, 509 U.S. at 592, n. 10, 113 S.Ct. 2786)).
As to qualifications, “experts may be qualified in various ways,”
including by scientific training, education, and experience. Frazier, 387
F.3d at 1260. When evaluating the reliability of scientific expert
testimony, the [district court] must assess “whether the reasoning or
methodology underlying the testimony is scientifically valid and ...
whether that reasoning or methodology properly can be applied to the
facts in issue.” Daubert, 509 U.S. at 592-93, 113 S.Ct. 2786. Factors
that may bear on the reliability of expert testimony include (1) whether
the expert’s theory can be and has been tested, (2) whether the theory
has been subjected to peer review and publication, (3) whether the
known or potential rate of error of the methodology is acceptable, and
(4) whether the theory is generally accepted in the proper scientific
community. McDowell v. Brown, 392 F.3d 1283, 1298 (11th Cir. 2004)
(citing Daubert, 509 U.S. at 593-94, 113 S.Ct. 2786). These factors are
not definitive, however. Other potentially relevant factors, depending
upon the facts, include “whether the proposed expert ruled out other
alternative explanations” and “whether the proposed expert sufficiently
connected the proposed testimony with the facts of the case.” Lauzon v.
Senco Prods., Inc., 270 F.3d 681, 687 (8th Cir. 2001) (collecting cases).
In short, trial courts retain “considerable leeway in deciding in a
particular case how to go about determining whether particular expert
testimony is reliable.” Kumho Tire, 526 U.S. at 152, 119 S.Ct. 1167. At
the same time, trial courts must remain mindful that “Daubert does not
require certainty; it requires only reliability.” Hendrix ex rel. G.P. v.
Evenflo Co., 609 F.3d 1183, 1198 n. 10 (11th Cir. 2010). The focus of
reliability “must be solely on principles and methodology, not on the
conclusions they generate.” Daubert, 509 U.S. at 595, 113 S.Ct. 2786.
Finally, whether the expert testimony will assist the trier of fact
in understanding the evidence or a fact in issue “goes primarily to
relevance.” Id. at 591, 113 S.Ct. 2786. “Expert testimony which does
not relate to any issue in the case is not relevant and, ergo, non-helpful.”
Id. (citation and internal quotation marks omitted). “The ‘basic standard
of relevance ... is a liberal one,’ but if an expert opinion does not have
a ‘valid scientific connection to the pertinent inquiry[,]’ it should be
excluded because there is no ‘fit.’” Boca Raton Cmty. Hosp., 582 F.3d
at 1232 (quoting Daubert, 509 U.S. at 591-92, 113 S.Ct. 2786). Hence,
under this third inquiry, “even if an expert’s testimony [is] admissible
under the first two prongs of the Daubert analysis, it may still be
insufficient to create an issue of fact to overcome summary judgment.”
Gulf States Reorganization Group, Inc. v. Nucor Corp., 822 F.Supp.2d
1201, 1232 (N.D. Ala. 2011); see also Gen. Elec. Co. v. Joiner, 522 U.S.
136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997) (District courts may
reject expert testimony that is based on sound methodology when “there
is simply too great an analytical gap between the data and the opinion
Seamon v. Remington Arms Co., LLC, 51 F. Supp. 3d 1198, 1201-03 (M.D. Ala.
2014) (Watkins, J.). The rulings on the motions at bar is informed by those principles
and the authority relied upon in Seamon.
Upon consideration of the motions, extensive briefs, and the evidentiary
submissions, and “consistent with the ‘liberal thrust of the Federal Rules [of
Evidence] and their general approach of relaxing the traditional barriers to opinion
testimony[,]’” the court concludes that the concerns each party raises with regard to
the other’s proffered expert testimony go to the weight of the testimony, not to its
admissibility. See United States v. Brown, 415 F.3d 1257, 1268 (11th Cir. 2005)
(quoting Daubert, 509 U.S. at 588, 113 S.Ct. at 2794). “Questions about the weight
given to testimony, as distinguished from the issue of its admissibility, are for the
factfinder.” Brown, 415 F.3d at 1270 (citing United States v. Hernandez, 141 F.3d
1042, 1052 (11th Cir. 1998)). That is especially true considering that there has been
no jury demand by either party in this case, and the trial judge will be the ultimate
trier of fact. See id. at 1268-69 (the rules regarding the admissibility of expert
testimony “are even more relaxed in a bench trial situation, where the judge is serving
as factfinder.”).5 “There is less need for the gatekeeper to keep the gate when the
As explained by another district court within Alabama:
“While [the Daubert] concerns are of lesser import in a bench trial, where no
screening [for] the factfinder can take place, the Daubert standards of relevance
and reliability for scientific evidence must nevertheless be met.” Seaboard
Lumber Co. v. United States, 308 F.3d 1283, 1302 (Fed. Cir. 2002). Federal
district courts are still “required to rely only on admissible and reliable expert
testimony, even while conducting a bench trial.” Gonzales v. National Bd. of
Med. Exam’rs, 225 F.3d 620, 635 (6th Cir. 2000) (Gilman, J., dissenting) (listing
cases). However, “district courts conducting bench trials have substantial
flexibility in admitting proffered expert testimony at the front end, and then
deciding for themselves during the course of trial whether the evidence meets the
requirements” of Rule 702. Gonzales, 225 F.3d at 635. Alternatively, in a bench
trial, it has been an acceptable method “to admit evidence of borderline
admissibility and give it the (slight) weight to which it is entitled.” See
SmithKline Beecham Corp. v. Apotex Corp., 247 F.Supp.2d 1011, 1042 (N.D. Ill.
United States v. Brown, 279 F.Supp.2d 1238, 1243-44 (S.D. Ala. 2003) aff'd, 415 F.3d 1257
(11th Cir. 2005). The “weight” to be given to the experts’ testimony will be determined by the
gatekeeper is keeping the gate for himself.” Id. at 1269.
Dane Floyd, C.P.A.
Mr. Floyd, a certified public accountant, was retained by Plaintiff to provide
expert testimony regarding damages suffered by Plaintiff in connection with the
bridge construction project for which Defendant performed design work. Mr. Floyd
reached the conclusion that, because of extra work performed and delays encountered
as a result of the alleged design issue, the money ALDOT paid to Plaintiff was
inadequate to compensate it for additional costs and reasonable profits related to the
work on the B.B. Comer Bridge. Mr. Floyd also concluded that the unreimbursed
damages incurred by Plaintiff total approximately $2.5 million.6
Defendant does not contest Mr. Floyd’s qualifications, but argues that the
methodology he used is unreliable because he did not conduct an independent
analysis of the data Plaintiff provided to him in order to verify its accuracy.
Defendant specifically argues that Mr. Floyd: (1) only verified eleven of thousands
of entries on a job cost report; (2) did not independently verify the data he used in his
calculations; (3) took no steps to verify the accuracy of Plaintiff’s reported equipment
usage on the project; (4) used the amount Plaintiff claimed for labor in the job cost
In addition to compensatory damages, Plaintiff demands $7.5 million in punitive
damages. (Doc. 43 at p. 3).
report without independent verification of the same; (5) did not look beyond the job
cost report to determine if Plaintiff had properly characterized the work being
claimed; (6) and simply relied on conversations with Plaintiff in formulating his
opinion that the profit was reasonable.
Defendant’s challenges to Mr. Floyd’s methodology are rejected. Defendant
concedes that Mr. Floyd testified that he did not conduct the “independent analysis”
because the data “had been subject to an audit process and reconciled with
[Plaintiff’s] financial statements.” (Doc. 66 at p. 5 (citing Floyd Depo. at p. 119).
Defendant does not indicate that the data Floyd relied upon was flawed, nor does
Defendant explain why Floyd’s failure to conduct an “independent analysis” causes
his methodology to be inherently unreliable. There is sufficient evidence of record,
particularly through Floyd’s deposition and his curriculum vitae, to satisfy the court
that Floyd is qualified to employ accounting methods that are standard in the
profession and that his testimony is reliable such that it is admissible.
On consideration of the record, the court finds that Mr. Floyd, who is an
accountant offering testimony in the area of accounting, is qualified to testify to the
matters for which he is offered as an expert witness. Moreover, his testimony is
relevant to the damages sought by Plaintiff and is likely to assist the trier of fact.
Accordingly, the motion to exclude Floyd’s testimony is due to be denied.
Richard Hartman, Ph.D., P.E. and Ted Thomson, P.E., Ph.D.
Plaintiff retained Dr. Hartman, “an engineer, to offer various opinions
regarding [Defendant’s] designs of Piers 7, 8, and 9, along with opinions regarding
Plaintiff’s construction practices.” (Doc. 65 and p. 2). Dr. Hartman “graduated with
a degree in Civil Engineering in 1965 and a Master of Science degree in 1966 with
a focus on structural engineering. He obtained a doctorate in 1972, with a focus on
structural engineering and minors in material science (metallurgy) and elasticity.”
(Doc. 87 at p. 6). He has been in the construction industry for over forty years, and
he is a licensed professional engineer in 38 states. (Id.). He has experience with
cofferdams, bridges, foundations, and foundations and designed cofferdams for a
deepwater bridge in Georgia. (Doc. 87 at pp. 6-7).
Dr. Hartman reached the following conclusions in his expert report:
The means and methods used by [Plaintiff] to install the
drilled shafts and the cofferdam were consistent with
accepted construction practices.
The foundation designs for Piers 7, 8, and 9 as shown in
the original Contract Drawings were unstable relative to
All foundation redesigns for Piers 7, 8 and 9 were stable
relative to uplift.
The first redesign of the Pier 7 foundation was not feasible
[Defendant] did not meet [the] generally accepted standard
of care and was negligent when preparing the original
designs of Piers 7, 8 and 9.
(Doc. 69-1 at p. 9).
Defendant challenges both Dr. Hartman’s qualifications to offer testimony in
this case as well as his methodology. Defendant argues that Dr. Hartman is
unqualified on the following bases: (1) Dr. Hartman is not a geo-technical or
structural engineer; (2) while he is qualified to testify regarding cofferdam design and
construction, his expertise in cofferdams and retaining walls does not qualify him to
testify regarding the standard of care for the design of a marine bridge foundation
involving concrete; (3) Dr. Hartman has no experience designing a marine bridge
with a concrete foundation and cannot testify as to the standard of care for designing
the same; (4) Dr. Hartman has never testified in a case regarding the standard of care
engineers should use in designing a bridge; (5) Dr. Hartman has never been involved
in the construction or oversight of a bridge with drilled shafts like the subject bridge;
and (6) Dr. Hartman did not conduct any specific research regarding the proper
methodology for drilled shaft installation before formulating his opinions in this case.
Defendant also argues that Dr. Hartman’s methodology is unreliable.
Defendant first argues that Dr. Hartman’s understanding of methodology is derived
from his discussions with contractors and past review of reference materials as
opposed to specific research regarding the proper methodology for drilled shaft
installation. This argument is not supported by testimony and other evidence of
record as to the source of Dr. Hartman’s methodology.
Defendant further argues that Dr. Hartman failed to use sufficiently reliable
methodology in evaluating whether the foundation designs met the standard of care
because the value he used in his calculations regarding resisting forces was unreliable
for the following reasons: (1) the value of the friction force between the steel and
surrounding soil was pulled “off the shelf” from a Minnesota Department of
Transportation manual and was neither site- nor region-specific; (2) Dr. Hartman
failed to consider friction between the drilled shaft and the rock socket because the
Minnesota manual did not assume friction in that area; (3) Dr. Hartman used a value
for the friction between the seal concrete and the steel casing/cofferdam steel that was
more conservative than the standard of care; and (4) Dr. Hartman did not use an
accurate value for the weight of the cofferdam steel because he ignored a resistive
force that would have increased the total weight. In support of those arguments,
Defendant refers the court to the methods and conclusions of its proffered experts.
Defendant also argues that Dr. Hartman used unreliable methodology in
evaluating whether the first redesign for Pier 7 was constructable because he offers
only his opinion that the revised design was impossible to construct.
Finally, Defendant argues that Dr. Hartman’s opinions regarding whether the
foundation designs met the standard of care and whether the first redesign of Pier 7
was constructable are irrelevant and will not assist the trier of fact because the uplift
calculations he used were not sufficiently related to the site-specific conditions in this
Defendant retained Dr. Thomson, a licensed professional engineer, to “analyze
whether Defendant’s designs for Piers 7, 8, and 9 sufficiently resisted the buoyancy
force that would have been created when the cofferdams were dewatered, and to
render and opinion regarding whether or not GSP’s foundation designs ultimately met
the standard of care.” (Doc. 85 at p. 2). Dr. Thomson “obtained a Bachelor’s degree
in Civil Engineering from the University of Delaware in 1993.” (Doc. 85 at p. 4). He
“subsequently obtained his Master of Civil Engineering degree (concentrating in
structural engineering) from the University of Delaware followed by a Ph.D.
(concentrating in geotechnical engineering) from the University of Massachusetts in
1998.” (Id.). He is a licensed professional engineer in six states. (Id.). Dr. Thomson
is a member of several professional organizations and “specialized in geotechnical
and structural design and instrumentation, and insitu geotechnical testing.” (Id.). He
has “worked on several projects in the past involving drilled shaft foundations for a
bridge,” and “performed analysis of the drilled shaft foundations for a marine bridge
that was being designed for the Pennsylvania [Department of Transportation]” that
involved “drilled shafts, seal concrete and cofferdams.” (Doc. 85 at pp. 7). He has
also worked on projects involving cofferdams in water, and was engineer of record
on a marine project in Wilmington, Delaware that involved “a jetty with a cellular
cofferdam that ‘behaves a similar way (to the case at bar) when it[’]s subjected to the
forces.” (Doc. 85 at p. 7).
Plaintiff contests the sufficiency of Dr. Thomson’s qualifications to testify as
to the same. Specifically, Plaintiff argues that: (1) Dr. Thompson’s experience is
primarily in geo-technical projects, construction, and observation testing projects and
that his reliance on a staff engineer to perform critical calculations is evidence of his
lack of experience and expertise; and (2) Dr. Thomson has no experience in
performing engineering analysis involving a marine bridge with drilled shafts, seal
concrete, and cofferdams.
Dr. Hartman and Dr. Thomson are qualified
Based upon Dr. Hartman’s and Dr. Thomson’s respective qualifications
described supra, each is qualified to so testify. A review of their curriculum vitae
reveals that Dr. Hartman and Dr. Thomson possess the necessary “knowledge, skill,
experience, training, or education” to testify in this matter. Fed. R. Evid. 702. The
arguments made against their qualifications are properly characterized as being
related to the weight and credibility of their testimony, but do not belie their
qualifications to testify on the subjects the parties identified in their Fed. R. Civ. P.
Dr. Hartman’s and Dr. Thomson’s testimony is reliable and
Defendant’s challenges to Dr. Hartman’s methodology, as articulated in the
briefing, are predominately supported by a single theme: Dr. Hartman’s methodology
and conclusions are different from those reached by Defendant’s proffered experts.
There is an acceptable range of differing methodologies and conclusions within
which different expert witnesses may operate, and this case presents that range.
Kumho Tire Co., 526 U.S. at 153, 119 S.Ct. at 1177 (citation omitted). Asserting that
an opposing party’s expert uses methods that do not conform with one’s own expert’s
method does not demonstrate the unreliability of the opposing expert’s methods. See
id. The Supreme Court recognizes that experts may reasonably differ on issues of
methodology and conclusions, but that those differences should be admitted assuming
they each meet the reliability and relevance requirements to assist the trier of fact in
deciding often complex issues. See id.
One of the material calculations in this case has to do with “uplift,” and the
value for the “factor of safety” (i.e., the ratio of the resisting forces to the driving
forces, or uplift) differs between Dr. Hartman’s and Dr. Thomson’s testimony. Dr.
Hartman utilized the Minnesota Department of Transportation manual in his analysis,
Dr. Thomson used values contained in the Florida Department of Transportation
manual, and the parties concede that the Alabama Department of Transportation
manual does not contain the necessary standards for the issues at hand. While the
parties argue over soil and ground compositions in Minnesota, Florida, and north
Alabama, the geographic proximity of those two states to Alabama, skin friction
between the drilled shaft and the rock socket, and the friction value between the seal
concrete and the steel casing / cofferdam steel, the evidence of record taken as a
whole, and especially the deposition testimony by Dr. Hartman and Dr. Thomson,
convinces the court that, for purposes of a reliability and methodology determination,
the Minnesota and Florida manuals’ friction force values are appropriate, and that Dr.
Hartman’s and Dr. Thomson’s overall analyses, including the factors of safety used
by each individual, meet the baseline requirements of admissibility.
As discussed above, Defendant also challenges the methodology and reliability
supporting Dr. Hartman’s testimony regarding constructability and standard of
professional care, specifically with designs as to aspects of Pier 7. Again, the record
as a whole, which has been subjected to careful and close scrutiny, and Dr. Hartman’s
qualifications and areas of specialization are sufficient to satisfy the admissibility
requirement of Rule 702 as to Dr. Hartman’s testimony on these points.7 Defendant’s
assertions speak to the weight Dr. Hartman’s testimony arguably should be given by
the trier of fact, but are not persuasive that his testimony is inadmissible.
The opinions and findings of Dr. Hartman and Dr. Thomson are precisely the
sort of testimony that should be weighed and decided by the trier of fact, in this case
the trial judge at a bench trial, but does not cause the testimony to be inadmissible.
See Tippens v. Celotex Corp., 805 F.2d 949, 954 (11th Cir. 1986) (“[i]ssues
concerning the credibility of witnesses and weight of the evidence are questions of
fact which require resolution by the trier of fact.”). After reviewing the parties’ briefs
[The Eleventh Circuit has] held that “an expert may be qualified ...
[but that] does not mean that experience, standing alone, is a
sufficient foundation rendering reliable any conceivable opinion
the expert may express.” United States v. Frazier, 387 F.3d 1244,
1261 (11th Cir. 2004). When a witness relies “solely ... on
experience, then [he] must explain how that experience leads to the
conclusion reached, why that experience is a sufficient basis for the
opinion, and how that experience reliably applied to the facts.” Id.
(quoting Fed. R. Evid. 702) (internal quotation marks omitted).
U.S. S.E.C. v. Big Apple Consulting USA, Inc., 783 F.3d 786, 810 (11th Cir. 2015). To be clear,
the court is not holding that Dr. Hartman or Dr. Thomson are reliable based solely on their
qualifications, but based on the record as a whole. Nevertheless, the expert’s respective
qualifications are strong support under the particular circumstances in this case that their
methodology and conclusions are of the reliable sort required by Rule 702 and Daubert.
and the evidentiary submissions, Dr. Hartman and Dr. Thomson base their testimony
on sufficiently reliable methods. Inasmuch as the parties argue that they disagree
with their opponent’s expert’s opinions, the parties are free at trial, within the
boundaries established by the trial judge, to argue against any opinions reached by
an opposing party’s expert as well as present evidence of their own theories, which
is in keeping with the notion that “[v]igorous cross-examination, presentation of
contrary evidence and careful [attention] to the burden of proof are the traditional and
appropriate means of attacking ... admissible evidence[,]” Daubert, 509 U.S. at 596,
116 S.Ct. at 2798, and “the weakness in the underpinnings of the expert’s opinions
go to its weight rather than its admissibility.” Jones v. Otis Elevator Co., 861 F.2d
655, 663 (11th Cir. 1988). The parties will have the opportunity to cross-examine Dr.
Hartman and Dr. Thomson at trial to test their credibility and differing opinions
before the trier of fact.
The testimony these expert witnesses offer is relevant to issues raised by
Plaintiff’s claims and Defendant’s defenses, and they are likely to assist the trier of
fact in reaching the ultimate issues. The motions to exclude Dr. Hartman and Dr.
Thomson are due to be denied.
Ben Nolan, III, P.E.
Defendant hired Mr. Nolan, a professional engineer who is also offered as a
Planning and Scheduling Professional, to “analyze the construction schedules and
events forming the basis of the lawsuit to formulate opinions regarding the number,
cause of, and responsibility for the delay days that occurred during Phase II of the
bridge project.” (Doc. 84 at p. 2). He was also asked to formulate an opinion
regarding the constructability of one of the revisions to Defendant’s foundation
design for Pier 7. (Id.). Mr. Nolan “has a Bachelor’s of Science in Applied Sciences
and Engineering from West Point that he obtained in 1979.” (Doc. 84 at p. 4). “He
subsequently obtained a Master’s degree in Engineering Management from the
University of Missouri in 1981.” (Id.). “He is a licensed professional engineer in
Alabama, among other states, and specializes in civil engineering.” (Id.). During his
professional career, he has worked as a project engineer for the U.S. Army Corp of
Engineers, as a project manager, asa marine contractor and mechanical/utility
contractor, and as the president of a general contracting company. (Id.). Mr. Nolan
has “worked in the construction industry for 34 years” and has experience in “marine
construction work includ[ing] the use of cofferdams, although no work in over 10 feet
of water.” (Id.).
Plaintiff contests the adequacy of Mr. Nolan’s qualifications to testify as to the
constructability of the revisions, arguing that Mr. Nolan (1) does not have the
necessary experience or expertise in deep water projects, specifically that he has no
personal experience with the use of drilled shafts and cofferdams; and (2) when
forming his conclusions, Nolan merely relied on the opinions of colleagues outside
of his firm who had actual experience with the constructability of drilled shafts and
cofferdams in deep water.
Plaintiff spends the bulk of the pages in its motion to exclude Nolan’s
testimony highlighting Nolan’s lack of deep water construction experience, but
Plaintiff misses a critical element: explaining why deep water experience is necessary
to offer an opinion on constructability in this case. Plaintiff assumes the link is
axiomatic; it is not. Defendant concedes that Nolan has no marine construction
experience using cofferdams in greater than ten feet of water, but argues that his
extensive experience in the construction industry, prior testimony in three cases
involving shafts or cofferdams on land, and his education and training as a
professional engineer qualify him to testify on constructability of the instant deep
water bridge project. The court agrees that Defendant satisfies its burden to show that
Mr. Nolan’s experience and professional training qualify him to offer testimony on
constructability in this case. Plaintiff is certainly free, within the confines set by the
trial judge, to cross examine Mr. Nolan regarding his lack of deep water experience;
however, that examination properly targets weight and credibility, not the
admissibility of Nolan’s testimony under Rule 702.
Insofar as Plaintiff argues that Mr. Nolan is not qualified because of his
reliance on the opinions of his colleagues — i.e., people who arguably have deep
water experience — when formulating his opinions on constructability such that his
reliance reduces Nolan to a mere conduit for information from other engineers, that
argument is not convincingly supported by the record. Mr. Nolan’s deposition
testimony indicates that he took his colleagues’ opinions into consideration when
reaching his own conclusions as to this case, not that he parroted others’ opinions as
his own without any independent consideration on his part. The balance of the record
weighs in favor of a finding that Mr. Nolan is qualified.
While not challenged by Plaintiff, the court has fulfilled its gatekeeper
responsibility and undertaken a review of the record to satisfy itself of the reliability
and relevance prongs of analysis. Mr. Nolan’s testimony is, although a close call
primarily because of his reliance on the advice of engineering colleagues who have
not been disclosed and are not expert witnesses in this action,8 sufficiently reliable,
relevant, and likely to assist the trier of fact in this matter. Any “shaky” areas in Mr.
Plaintiff makes a passing hearsay objection in the motion to exclude Mr. Nolan’s
testimony. That objection is not addressed by this order and is left to the trial judge should
Plaintiff reassert a hearsay objection. No opinion is expressed or implied herein on such a
hearsay objection except to note that the objection does not impact the resolution of the motion to
exclude Mr. Nolan as an expert witness. In other words, Plaintiff is not being granted license to
revisit the court’s ruling on the Daubert motion by way of a hearsay objection at trial, but is not
prohibited by this order from asserting a stand-alone hearsay objections as a challenge to Mr.
Nolan’s testimony that is separate from a Rule 702 challenge.
Nolan’s testimony or questions regarding the foundations of his testimony, as those
questions relate to weight and credibility, can be explored at trial through the
“vigorous” cross-examination countenanced by the Supreme Court. Daubert, 509
U.S. at 596, 113 S.Ct. at 2798. The motion to exclude Mr. Nolan’s expert testimony
is due to be denied.
CONCLUSION AND ORDER
Accordingly and for the reasons discussed herein, it is ORDERED as follows:
Defendant’s motion to strike, exclude or limit the testimony of Dr. Richard Hartman
(Doc. 65), Defendant’s motion to strike, exclude or limit the testimony of Dane Floyd
(Doc. 66), Plaintiff’s motion to strike or exclude the testimony of Ben D. Nolan, III
(Doc. 70), and Plaintiff’s motion to strike or exclude the testimony of Dr. Ted
Thomson (Doc. 71) are DENIED. See Fed. R. Civ. P. 72, 28 U.S.C. § 636, Order of
Reference (Doc. 76; Entered Feb. 23, 2015). All other pending motions will be
addressed in separate orders or recommendations, as appropriate.
DONE and ORDERED this 14th day of October, 2015.
/s/ Paul W. Greene
United States Magistrate Judge
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