Crescent City Remodeling,LLC v. CMR Contruction & Roofing, LLC

Filing 131

ORDER AND REASONS denying 120 Motion in Limine as set forth in document. Signed by Judge Jay C. Zainey on 8/27/2024. (mmm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CRESCENT CITY REMODELING, LLC
VERSUS
CMR CONSTRUCTION & ROOFING,
LLC

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CIVIL ACTION NO. 22-859
SECTION: “A”(2)
JUDGE JAY C. ZAINEY
MAGISTRATE JUDGE DONNA PHILLIPS
CURRAULT

ORDER AND REASONS
The following motion is before the Court: Motion in Limine to Exclude the Expert
Opinions of John W. Theriot and Jason R. Schellhaas (Rec. Doc. 120) filed by Defendant,
CMR Construction & Roofing, LLC (“CMR”). Plaintiff, Crescent City Remodeling, LLC
(“Crescent”), and Third-Party Defendant, Castle Construction TX, LLC (“Castle”), both oppose
the motion. The motion, submitted for consideration on August 7, 2024, is before the Court on
the briefs without oral argument.1 For the reasons that follow, CMR’s Motion in Limine is
DENIED.
I.

Background
This case arises out of a fee dispute between CMR and Crescent. CMR contracted

Crescent to perform remediation work at Tangipahoa Parish School Board buildings following
Hurricane Ida. (Rec. Doc. 113-1, at 1). Crescent ultimately filed suit in the 24th Judicial District
Court for the Parish of Jefferson against CMR, alleging that CMR breached the parties’ Joint
Work Agreement by failing to compensate Crescent for its work. (Rec. Doc. 1-2, ¶ 8). CMR
subsequently removed the suit to this Court (Rec. Doc. 1), answered, and asserted a counterclaim

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CMR has requested oral argument, but the Court is not persuaded that oral argument would be helpful.

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against Crescent, alleging that Crescent failed to perform its obligations under the contract. (Rec.
Doc. 2, ¶¶ 34-42). On May 22, 2023, CMR impleaded Castle, arguing that CMR had paid Castle
the full amount due to both Castle and Crescent, but that Castle had failed to pay Crescent its
share. (Rec. Doc. 86, ¶¶ 59-60).
On June 12, 2024, Castle and Crescent jointly moved to modify the scheduling order,
asserting that it failed to provide time for Crescent, as a defendant-in-counterclaim, to produce an
expert report rebutting CMR’s expert. (Rec. Doc. 112-2). CMR opposed the motion. (Rec. Doc.
114). On July 18, 2024, the Court held a status conference at which it granted the motion for
modification of the scheduling order, permitting the expert report over requests to exclude on
timeliness grounds. (Rec. Doc. 124). The Court did not rule on the present motion in limine as it
relates to Daubert. (Id.). CMR has moved in limine to exclude this report on two grounds: (1) the
report was not provided in a timely manner under the scheduling order, and (2) the report does
not comply with Federal Rule of Evidence 702. Because the Court previously ruled on the
timeliness issue, it only discusses the Rule 702 challenge.
CMR first argues that the experts’ testimony is not reliable, arguing that the assumptions,
provided by Crescent’s counsel, informed the experts as to what conclusion they should reach
and caused the experts to render legal opinions. (Rec. Doc. 120-1, at 7). Specifically, CMR takes
issue with the second assumption, which states: “The project manager fee and sales commissions
should not impact the payment due to CCR, as these amounts should be based on CMR’s 50% of
the profit, rather than the entire profit which was to be allocated between CCR and CMR 50% /
50%.” (Id.). First, both individuals are certified public accountants; the Court believes they used
reliable methods and have satisfactory skills and training. Second, the Court is not persuaded that
this assumption renders the opinion unreliable; the calculations in CMR’s report applied the

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commission to the profit of the entire job—before the 50-50 split between CMR and Crescent.
This report merely assumes a different form of calculation.2 (Rec. Doc. 120-2, Expert Report, at
5). To the extent that the assumption affects the experts’ reliability, that issue goes to the weight
of the evidence, not to its admissibility.3
CMR also moves to exclude the experts’ report on the basis that it is not relevant. In
support, it cites cases in which the trial court barred testimony because it was speculative.
Burleson v. Tex. Dep’t of Criminal Justice, 393 F.3d 577, 585-87 (5th Cir. 2004). That argument,
however, is not applicable here. Burleson dealt with a speculative theory—that is, the expert’s
opinion was based upon speculation, not science—whereas the experts here used reliable
accounting methods. Id. at 584, 587. CMR also challenges this report based on an allegation that
the opinions “are the product of incomplete and inaccurate information, as well as based on
incorrect assumptions and the blanket adoption of [Crescent’s] legal position.” (Rec. Doc. 120-1,
at 8). This Court finds the opinions relevant. First, the opinions are based on data in discovery
and from the report it rebuts. (Rec. Doc. 120-2, at 5-6; see also Rec. Doc. 126, at 2). Second, the
opinions detail what the profit would be if the commission were calculated differently than it was
in CMR’s expert report. This challenge goes to the weight of the evidence, not to its
admissibility. The opinions expressed by Crescent’s experts satisfy the requirements of Daubert.
See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).
Finally, the Court notes that CMR’s report has not been challenged, despite its
application of a different interpretation of the underlying contract. (See Rec. Doc. 120-2, at 5).
CMR’s discussion providing cases in which expert opinions were excluded for assuming the very fact that the expert
was retained to prove does not apply here. (See Rec. Doc. 120-1, at 8 n.41). The experts here were instructed to assume
that the commissions would be paid in a certain way. The experts, however, were not retained to prove that the
commissions should be paid that way. Rather, they were retained to prove what the damages would be if the
commissions were to be paid in that way.
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The experts used generally accepted accounting principles (“GAAP”) in rendering their opinion. (Rec. Doc. 126, at
2). There is no challenge as to their method of calculating the profit outside of the underlying data and assumptions.
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The underlying legal issue—the interpretation of the contract—is an issue upon which the Court
has not yet ruled. It would be premature to exclude only one expert’s testimony related to
damages merely because it assumes a possible interpretation, absent a ruling on the proper
interpretation of the contract’s language.
Accordingly;
IT IS ORDERED that the Motion in Limine (Rec. Doc. 120), filed by Defendant, CMR
Construction & Roofing, LLC, is DENIED.
August 27, 2024
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JAY C. ZAINEY
UNITED STATES DISTRICT JUDGE

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