Electrical Contractors, Inc. v. Pike Co Inc
ORDER denying 77 , 79 , and 81 Motions in Limine. Signed by Judge Jeffrey A. Meyer on 6/6/2014. (Ramesh, S)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
ELECTRICAL CONTRACTORS, INC.,
No. 3:11-cv-01449 (JAM)
THE PIKE COMPANY, INC.,
RULING DENYING MOTIONS IN LIMINE
In anticipation of the pending trial of this matter, the parties have filed motions in limine,
as described below. These motions were the subject of extensive oral argument before the Court
on May 13, 2014, and the Court now denies each of the motions in limine for the reasons stated
below and set forth at oral argument.
Defendant Pike Company’s Motion in Limine to Preclude Evidence of Certain Unwritten
Evidence (Doc. #77)
Defendant moves in limine to preclude plaintiff from offering at trial any unwritten
evidence of (1) any directive by defendant to plaintiff to add manpower for which plaintiff would
be compensated; (2) any request for an extension of time to perform plaintiff‟s work; (3) any
notice of claim by plaintiff against defendant; and (4) any modifications to the contract between
defendant and plaintiff. The Court denies this motion, in view that the application of Section 5.4
of the contract is still at issue in this case following the prior ruling of Judge Shea denying
summary judgment. Open issues remain as well concerning application of Sections 3.1, 3.4 and
5.3, among other contractual provisions. Accordingly, it cannot be concluded at this time that the
oral communications at issue are not relevant for any purpose. The Court, however, notes that
Judge Shea‟s summary judgment ruling was in the context of summary judgment, and neither his
ruling nor this evidentiary ruling forecloses the defendant‟s right to argue after the presentation
of evidence at trial that Section 5.4 and similar provisions in the contract apply to foreclose
plaintiff‟s claim and reliance on oral communications.
Plaintiff’s Motion in Limine to Preclude Expert Testimony and Reports (Doc. #79)
Plaintiff moves to preclude portions of expert reports and related testimony to be
introduced by defendant at trial. First, plaintiff contends that the testimony of Dennis O‟Neill and
James Bruno of Beacon Consulting Group, Inc., concerning the conclusions reached in their
reports (the “Beacon Reports”) are impermissible opinion evidence. The Court rejects this
argument on the basis of defendant‟s showing that the Beacon Reports permissibly rely on the
admissible analysis of Richard Merkhofer and David Caprio. See United States v. Mulder, 273
F.3d 91, 102 (2d Cir. 2001) (noting that “„expert witnesses can testify to opinions based on
hearsay or other inadmissible evidence if experts in the field reasonably rely on such evidence in
forming their opinions,‟ and that a court need not make “specific findings on the reliability of the
materials the experts use”) (quoting United States v. Locasio, 6 F.3d 924, 938-39 (2d Cir. 1993)).
Nor has plaintiff shown that O‟Neill and Bruno are unqualified by background to offer
expert testimony. As to plaintiff‟s objection to the basis for the analysis of Richard Merkhofer,
defendant has shown without contradiction that Merkhofer‟s testimony will be based on
comparisons of “as-planned” and “as-built” schedules that are known to plaintiff and that the
parties have agreed without objection will be made exhibits in this case. As to plaintiff‟s
objection to David Caprio, defendant has shown that the basis for his calculations has been
produced to plaintiff. Accordingly, plaintiff‟s motion to preclude is denied. This ruling,
however, is without prejudice to plaintiff‟s right to impeach the qualifications of and analysis of
each of defendant‟s witnesses at trial.
Defendant Pike Company Motion in Limine to Preclude Evidence Concerning Damages
Defendant moves in limine to preclude plaintiff from offering certain evidence of
damages at trial. First, defendant contends that plaintiff should be foreclosed from offering any
damages calculation that is based on an inherently unreliable “total cost” methodology. The
Court rejects this argument on the ground that defendant has not shown that plaintiff‟s method of
calculating damages is inherently unreliable. Although there is precedent that raises concerns
about use of a “total cost” method, the precedent does not go so far as to categorically exclude
evidence of this method. See, e.g., Servidone Const. Corp. v. United States, 931 F.2d 860, 861-62
(Fed. Cir. 1991). Moreover, plaintiff disclaims reliance on the “total cost” method as defendant
Defendant also contends that plaintiff should be precluded from reliance on its own bid
price as a component for measuring damages, because plaintiff does not intend to offer expert
testimony to establish the accuracy of its bid. The Court does not agree that expert testimony is
necessary as a matter of law to establish the accuracy of a bid. See, e.g., Cavalier Clothes, Inc. v.
United States, 51 Fed. Cl. 399, 422 (2001) (allowing reliance on the bids by other bidders and, in
part, on evidence concerning “the depth and accuracy of information available to and relied upon
by the bid preparer, [and] the bid preparer‟s investigation or knowledge of the contract
In short, the reliability concerns raised by defendant about plaintiff‟s damages method
and calculation go to the weight of the evidence and not its admissibility. Accordingly, the
motion is denied. This ruling, however, is without prejudice to defendant‟s right to impeach
plaintiff‟s damages evidence and methodology at trial.
It is so ordered.
Dated at Bridgeport this 6th day of June 2014.
Jeffrey Alker Meyer
United States District Judge
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