Klicos Painting Company, Inc. v. Saffo Contractors, Inc.

Filing 136

MEMORANDUM OPINION. Signed by Judge Richard D. Bennett on 5/30/2018. (dass, Deputy Clerk)

IN THE UNITED ST
I
U
TATES DI
ISTRICT C
COURT
FOR THE DIST
T
TRICT OF MARYLAN
ND
KLICOS PAINTIN COMPA
S
NG
ANY, INC.,
,
Plaintiff/Coun
P
nter-Defendan
nt

*
*

v.

Civil No RDB-15-2
o.
2505

*
SAFFO CONTRAC
CTORS, IN
NC.,
Defendant/Co
D
ounter-Plaintiff
ff.
*

*

*

*

*

*
*

*

*

*

*

*

*

*

MEMORAN
M
NDUM OP
PINION
This dispute concerns th parties’ compensatio for their efforts to repair and paint
T
he
c
on
r
various highway bri
h
idges in Mar
ryland. A bench trial is scheduled to begin on June 18, 2
s
n
2018.
(ECF No 131.) The bench trial will addres the partie claims for unjust enr
o.
e
l
ss
es’
richment an the
nd
Defenda
ant/Counter
r-Plaintiff’s counter-cl
laim for intentional misrepres
sentation. Now
pending

is

the

Defendan
nt/Counter-Plaintiff’s

Motion

in

Limine
e

to

Exc
clude

Plaintiff/
/Counter-D
Defendant’s Expert Wit
tnesses (EC No. 132 This Cou has reviewed
CF
2).
urt
the parties’ submissi
ions and co
onducted a hearing on M 24, 201 For the r
h
May
18.
reasons set forth
below, th Motion in Limine (EC No. 132 is DENIE WITHO
he
i
CF
2)
ED
OUT PREJU
UDICE.
BACK
KGROUND
I.

Factual Bac
F
ckground
On July 29, 2013, the Maryland Transportat
O
tion Autho
ority (“MTA awarded the
A”)
d

Defenda
ant/Counter
r-Plaintiff, Saffo Contr
S
ractors, Inc (“Saffo”) a contrac to repair and
c.
),
ct
r
paint va
arious high
hway bridge on I-95 and I-39 At som point, Saffo and the
es
5
95.
me
d

1

Plaintiff/
/Counter-D
Defendant, Klicos Painting Compa (“Klico
K
any
os”), agreed to perform the
m
work tog
gether, but the parties disagree as to the nature of that agr
t
d
o
e
reement.
Klicos perfo
K
ormed work on the project from approxim
k
m
mately March 2014 thr
h
rough
Novemb 2014. Klicos stopp work in December 2014, citin weather conditions but
ber
K
ped
n
r
ng
s,
some Kl
licos emplo
oyees return to the jobsite in F
ned
February or March 20
r
015. In February
2015, Klicos subm
K
mitted an in
nvoice to Saffo for $
S
$200,000. A
According t Saffo, K
to
Klicos
promised to return workers im
d
mmediately to complete the job if the invoice was paid. S
t
e
e
Saffo
paid the invoice. In March 201 Klicos sent another invoice to Saffo for $345,000, w
n
15,
s
r
o
which
Saffo declined to pa Klicos th withdrew from the project.1 Be
efore Klicos abandoned the
ay.
hen
w
project, Saffo paid Klicos a tota of $2,738,
S
K
al
,600.73.2
Klicos filed suit against Saffo on August 24, 20 (ECF N 1). Saffo answered with
K
s
A
015
No.
fo
counter claims on September 28, 2015 (EC No. 11). Klicos answ
CF
wered the co
ounter-claim on
ms
October 14, 2015 (E
r
ECF No. 13 and filed an Amend Compla on June 16, 2016 (
3),
d
ded
aint
e
(ECF
No. 35).
II.

Discovery & Experts
D
After filing answers, th parties engaged in discovery. Under the Court’s revised
A
he
e

Scheduli Order, the deadline for expert disclosures was May 10, 2017, with May 31, 2017
ing
t
e
as the su
upplementa
ation deadlin (ECF No. 80.) On December 30, 2016, Klicos serv a
ne.
N
n
r
ved
brief exp disclosu designat Scott Lo
pert
ure
ting
owe, Profes
ssional Engi
ineer (“P.E.”), and Ant
thony
(“Tony”) Ardito, Ce
)
ertified Public Account (“CPA” as expert witnesses. (Saffo Ex. 1, Pl.
tant
”),
t
Expert Disclosure.) On March 1, 2017, Klicos served a report b its two e
D
h
K
d
by
expert witne
esses.

This factu summary ref
ual
flects the facts laid out in this Court’s Memo randum (ECF N 122) regard Klicos’ Mo
No.
ding
otion
to Alter/Am
mend Judgmen The parties did not object to this summary at the motion hearing on M 24, 2018.
nt.
d
y
ns
May
2 The MTA has paid Saffo but the briefs do not explain what the amo
A
o,
s
n
ount is or what w
work it compen
nsates.
1

2

(Saffo Ex. 2, Klicos Expert Report, ECF No. 132-2.) In the report, the experts opined as to
the amount of Saffo’s alleged profits and the amount of 50% of those profits. (Id. at 12.) On
March 31, 2017, Saffo’s expert, Forensic Resolutions Inc. (“FRI”) completed its report. On
April 28, 2017, Klicos produced a rebuttal report in which the experts criticized the
methodology and opinions of Saffo’s expert. (Saffo Ex. 3, Klicos Rebuttal Report., ECF No.
132-3.)
On June 8, 2017, Saffo deposed Klicos’s expert witnesses.3 At the conclusion of the
deposition of Tony Ardito, the CPA, Klicos’s counsel (Mr. Walter) questioned his own
expert as follows:
Q. Are you prepared to render an opinion regarding the value of the work
performed by Klicos on this job?
A. I have basically looked at the amount of -- the items in the schedule of
values totaled about 5.7 million, representing -- called cleaning and
painting. So that’s -- from a schedule of values standpoint, a piece of that
represents Klicos’s value of work. I did not calculate their exact portion,
but that’s the starting point. 5.7 million is the value of work delivered.
Q. Okay. And you indicated that -- in your testimony a few moments ago, that
75 percent or thereabouts of the painting work was completed by Klicos,
correct?
A. That’s correct.
(Saffo Ex. 4, Ardito Dep. at 78, ECF No. 132-3.) Upon further questioning by Saffo’s
counsel, Mr. Ardito then testified as follows:
Q. You would agree with me that the opinions that you just expressed in
response to Mr. Walter’s questions about the value of Klicos’s services are not
stated in the report that’s marked as Exhibit-2, correct?
A. Correct.
(Id. at 80.)

3 Approximately six weeks earlier, on April 21, 2017, Saffo moved for summary judgment. (ECF No. 76.) In its motion,
Saffo argued that it was entitled to summary judgment on Klicos’s claims for unjust enrichment and quantum meruit
because, among other reasons, Klicos had not designated an expert witness regarding the value of its services. (ECF No.
76 at 26.)

3

Mr. Lowe, th engineer, testified: “My underst
M
he
,
“
tanding of m scope w to deter
my
was
rmine
the prof and then the split of that pr
fit
n
rofit on the basis of my underst
e
tanding of their
agreemen (Saffo Ex. 5, Low Dep. at 98, ECF N 132-5.) He went on to testi as
nt.”
we
No.
)
ify
follows.
Q. And you didn’t expre any opin
Q
d
ess
nions in this report rega
arding the re
easonable
value of Klicos’s serv
K
vices perfor
rmed on the project, ap from an
e
part
ny
entitleme to a 50/5 split?
ent
50
A. I think we did consid that for sure.
A
e
der
s
Q. So, in oth words, assuming the was no a
Q
her
ere
agreement to a 50/50 sp what
o
plit,
Klicos wo be enti
ould
itled to in te
erms of reas
sonable paym for its work on
ment
s
the project, that’s no an opinion that you r
ot
n
rendered in t report, is it?
this
A. Well, to some extent it is. I mean I would s it this wa I would say yes,
A
s
t
n,
say
ay.
in the sen that they would be entitled to reimbursem
nse
ment for the value of
e
their wor So the agreement between the parties wa cost and a split of
rk.
a
b
e
as
profits. The value of the work, you just w
T
wouldn’t spli the profit Klicos
it
ts.
would be entitled to [the] value of the wor and a hun
e
rk
ndred perce of the
ent
profit on that work.
(Id. at 12 Mr. Lo stated that he had no opinion as to wha would be a “reasonable”
28.)
owe
t
n
at
e
profit. (I at 131-32
Id.
2.)
III.

Summary Ju
udgment
On April 21 2017, Sa
O
1,
affo moved for summ
mary judgme
ent. (ECF N 76.) K
No.
Klicos

moved for partial summary jud
f
dgment on June 30, 20
017. (ECF N 98.) O Septemb 6,
No.
On
ber
2017, Ju
udge Motz of this Court granted in part an denied i part Saf
d
nd
in
ffo’s motion for
n
summary judgment and grant in part and denie in part Klicos’ mo
y
t
ted
ed
otion for p
partial
summary judgment (ECF No 105, 106 Judge M
y
t.
os.
6.)
Motz also n
noted the r
recovery for the
r
parties’ unjust enric
u
chment claim would be “measure by ‘the a
ms
b
ed
actual value realized by the
e
y
defendan and not the market value of the plaintiff’s services ren
nt,’
ndered.” (E No. 105 at 9
ECF
5
(citing Dolan v. Mc
D
cQuaide, 215 Md. App 24, 37-38 (Md. Ct. Spec. App 2013)).) M
5
p.
8
p.
More
4

specifically, “the operative question will be whether the actual value realized by Saffo for
Klicos’s work is more or less than $2,738,600.73.” (ECF No. 105 at 10.) Judge Motz also
stated that Klicos’ “expert report outlining Saffo’s profits can be used, in conjunction with
other witness testimony, to infer the value provided to Saffo by Klicos’ work.” (Id.)
On February 23, 2018, this case was reassigned from Judge Motz to the undersigned.
On April 13, 2018, this Court clarified Judge Motz’ prior summary judgment ruling. (ECF
Nos. 122-23.) Specifically, this Court held that the prior entry of summary judgment in
Saffo’s favor on Klicos’ breach of contract claim was limited to the non-existence of a
contract on November 21, 2013. This decision enabled Klicos to press a breach of contract
claim at trial only if Saffo elected to pursue its own breach of contract claim at trial. On April
27, 2018, however, Saffo informed this Court that it would not pursue a breach of contract
claim at trial. (ECF No. 129.) The claims now pending, which shall proceed to the June
bench trial, are:
(1) Klicos’ claim against Saffo for unjust enrichment,
(2) Saffo’s counter-claim for unjust enrichment, and
(3) Saffo’s counter-claim for intentional misrepresentation, including punitive
damages.
On May 9, 2018, Saffo filed the pending Motion in Limine to Exclude Plaintiff’s
Expert Witnesses. (ECF No. 132.) On May 24, 2018, this Court conducted a hearing during
which the parties offered oral arguments on the pending motion in limine. The bench trial in
this case is scheduled to begin on June 18, 2018, with the Pretrial Conference scheduled for
June 11, 2018 at 4:00 p.m. (ECF No. 131.)
5

STANDAR OF RE
RD
EVIEW
I.

Expert Disc
E
closure Obl
ligations
Under Rule 26(a)(2), “a party must disclose to the other parties the identity of any
U
a
r
e
o

witness it may use at trial to pr
i
a
resent evide
ence under Federal Rul of Eviden 702, 70 or
le
nce
03,
705.” Fo witnesses who will pr
or
rovide expe testimony the disclo
ert
y,
osure must i
include a wr
ritten
report co
ontaining:
(i a comple statemen of all opin
i)
ete
nt
nions the w
witness will e
express and the basis
and reaso for them
ons
m;
(i the facts or data considered by the witness i forming t
ii)
t
in
them;
(i any exhib that will be used to summarize or support them;
iii)
bits
l
(i the witne
iv)
ess’s qualific
cations, incl
luding a list of all publ
t
lications aut
thored in
the previo 10 years
ous
s;
(v a list of all other cas in which during th previous 4 years, the witness
v)
a
ses
h,
he
n;
testified as an expert at trial or by deposition and
a
t
b
(v a stateme of the co
vi)
ent
ompensation to be paid for the stu and test
n
d
udy
timony in
the case.
Fed. R. Civ. P. 26(a)
C
)(2)(B).
Under Rule 26(e), a part “must su
U
2
ty
upplement o correct its disclosure or respons . . .
or
s
se
in a time manner if the party learns that in some mat
ely
i
l
terial respec the disclosure or resp
ct
ponse
is incom
mplete or inc
correct.” Fe R. Civ. P. 26(e). In terms of re
ed.
P
equired expert reports, “the
party’s duty to sup
d
pplement ex
xtends both to inform
h
mation inclu
uded in the report an to
e
nd
informat
tion given during the expert’s deposition.” Id.4 Supple
ementation under Rul 26
le
“means correcting inaccuracies or filling the intersti
i
s,
ices of an in
ncomplete report base on
ed
informat
tion that wa not avail
as
lable at the time of the initial disc
e
closure.” EE
EOC v. Fre
eeman,
961 F. Supp. 2d 78 797 (D. Md. 2013 Supplem
S
83,
3).
mentations s
should not be produce to
ed

“Any add
ditions or chang to this information must be disclosed by t time the par
ges
e
the
rty’s pretrial dis
sclosures under Rule
r
26(a)(3) are due.” Fed. R. Civ. P. 26(e).
e
4

6

“address the criticisms . . . raised in [the opponent’s] memorandum in support of summary
judgment.” Id. (quoting Gallagher v. S. Source Packaging, LLC, 568 F. Supp. 2d 624, 629
(E.D.N.C. 2008).)
When expert disclosure obligations are set forth in a “court approved discovery plan,
the Court should first look to Rule 16(f) for determining both compliance and sanctions, as
opposed to Rule 37(c).” Akeva L.L.C. v. Mizuno Corp., 212 F.R.D. 306, 309 (M.D.N.C. 2002).
Rule 16(f) states that “the court may issue any just orders . . . if a party or its attorney . . .
fails to obey a scheduling or other pretrial order.” Fed. R. Civ. P. 16(f). The primary question
“is not whether the [movants] have been prejudiced, but whether [the party violating the
order] has shown good cause for its failure to timely disclose.” Akeva, 212 F.R.D. at 309;
accord. Walter Kidde Portable Equip., Inc. v. Universal Sec. Instruments, Inc., No. 1 03CV537, 2005
U.S. Dist. LEXIS 46201, at *8 (M.D.N.C. July 5, 2005); see also Trilogy Commc’ns, Inc. v. Times
Fiber Commc’ns, Inc., 109 F.3d 739, 745 (Fed. Cir. 1997).5 “Under Rule 16(f), the Court may
impose the full range of sanctions, including precluding the expert’s testimony.” Akeva, 212
F.R.D. at 309 (citing Boardman v. Nat’l Medical Enterprises, 106 F.3d 840, 843 (8th Cir.
1997); Lory v. Gen. Elec. Co., 179 F.R.D. 86 (N.D.N.Y. 1998)).6

5 Under Rule 37(c), “[d]istrict courts are accorded ‘broad discretion’ in determining whether a party’s nondisclosure or
untimely disclosure of evidence is substantially justified or harmless.” Bresler v. Wilmington Tr. Co., 855 F.3d 178, 190 (4th
Cir. 2017). In making this determination, district courts are guided by the following factors:
(1) the surprise to the party against whom the evidence would be offered; (2) the ability of that party
to cure the surprise; (3) the extent to which allowing the evidence would disrupt the trial; (4) the
importance of the evidence; and (5) the nondisclosing party’s explanation for its failure to disclose the
evidence.
Southern States Rack & Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d 592, 597 (4th Cir. 2003).
6 Similar to the Southern States factors, prejudice to the opposing party is among the factors discussed in Akeva, 212
F.R.D. at 311, for determining what if any sanctions are appropriate.

7

II.

Expert Opin
E
nions at Tr
rial
Rules 702 th
R
hrough 704 of the Fede Rules o Evidence govern the admissibili of
eral
of
e
ity

expert op
pinions at tr Rule 70 states that:
rial.
02
A witness who is qua
w
alified as an expert by knowledg skill, ex
n
y
ge,
xperience,
tr
raining, or education may testify in the form o an opinion or otherw if:
e
of
n
wise
(a the exper scientifi technical or other s
a)
rt’s
ic,
l,
specialized knowledge will help
the trier of fact to un
o
nderstand th evidence or to determ a fact i issue;
he
mine
in
(b the testim
b)
mony is base on suffici facts or data;
ed
ient
r
(c the testim
c)
mony is the product of reliable prin
p
r
nciples and m
methods; an
nd
(d the exper has reliab applied the principl and met
d)
rt
bly
t
les
thods to the facts of
e
the case.
Fed. R. Evid. 702. Additionally, pursuant to Rule 703:
E
A
,
o
An expert may base an opinion on facts or dat in the cas that the e
A
m
o
ta
se
expert has
been made aware of or personally observed. I experts in the partic
a
If
n
cular field
would reason
w
nably rely on those kin of facts or data in forming an opinion
o
nds
s
n
on the subjec they need not be adm
ct,
d
missible for the opinion to be adm
r
n
mitted.
Fed. R. Evid. 703.
E
While Rule 704(a) prov
W
7
vides that “t
testimony in the form of an opini or infer
n
rence
ion
otherwis admissible is not obje
se
e
ectionable because it em
b
mbraces an ultimate issue to be dec
cided
by the tr of fact,” the Fourt Circuit has establish that exp testimo “that m
rier
th
h
hed
pert
ony
merely
states a legal conclu
usion” may be properl excluded under Rule 702. Unite States v. B
ly
e
ed
Barile,
286 F.3d 749, 760 (4th Cir. 200 7 “The best way to determine whether op
d
(
02).
b
o
pinion testim
mony
contains legal concl
lusions, ‘is to determin whether the terms u
ne
used by the witness ha a
e
ave
separate, distinct an specializ meanin in the la different from that present in the
,
nd
zed
ng
aw
t
t
n
vernacul
lar.’” Id. (quo
oting Torres v. County of Oakland, 75 F.2d 147, 151 (6th C 1985)).
f
58
,
Cir.

The Four Circuit has recognized that in cases involv specialized industries, su as insurance “opinion test
rth
r
t
ving
d
uch
e,
timony
that arguab states a lega conclusion is helpful to the jury, and thus admissible.” Barile, 286 F.3d at 760 n.7 (q
bly
al
s
e
s,
d
quoting
Weinstein’s Federal Evide
s
ence § 704.04[2
2][a] (2d ed. 2001)). The partie in this case, however, have not argued th this
e
hat
es
case qualifi for such an exception.
ies
e
7

8

DIS
SCUSSION
N
Saffo asserts that Klicos’ experts should be pre
ecluded from offering o
m
opinions on the
following three subjects.
g
(1 the net pr
1)
rofit that Sa allegedly realized on the projec (“Opinion 1”);
affo
y
n
ct
n
(2 the value of 50% of Saffo’s prof (“Opinio 2”); and
2)
fits
on
(3 “that the value of Klicos’s work [on] the p
3)
K
k
project equa
ated to 100% of the pr
%
rofits
realized by Saffo from Klicos’s work” (“Op
b
m
w
pinion 3”).
(Saffo Mot. 1, ECF No. 132.) According to Saffo, O
M
F
Opinions 1 and 2 have been rend
e
dered
irrelevan by this Court’s prio rulings. Saffo also contends t
nt
C
or
that Opinio 3 shoul be
on
ld
excluded as untimely unfounde and “con
d
y,
ed,
ntradictory t the legal standard fo the measu of
to
or
ure
damages in this case (Id.)
s
e.”
I.

Opinions 1 and 2
O
Saffo argues that Opinions 1 and 2 are irrelev
vant based u
upon this C
Court’s sum
mmary

judgmen ruling on Klicos’ br
nt
n
reach of co
ontract claim Specific
ms.
cally, this C
Court ruled that
d
Klicos fa
ailed to prov the existe
ve
ence of a co
ontract by N
November 21 2013 – w
1,
which would have
enabled a claim to 50% of the profits fro the pro
e
om
oject. Accor
rding to Saf the issu of
ffo,
ue
calculatin profits has no releva
ng
h
ance to the assessment by this Co
t
ourt, as the f
factfinder in this
n
case, of “the actual value realiz by Saffo for Klicos work.” (
zed
o
s’s
(ECF No. 1 at 10.) S
105
Saffo
asserts th the cost to Klicos of “the labo and mate
hat
t
or
erials provid
ded” constitutes the “a
actual
value rea
alized by Sa
affo.” (ECF No. 132 at 7-8 (citing Afcon, Inc. v. Bell BCI Co., 64 F. A
t
App’x
893, 894 (4th Cir. 2003); KLE Constr., LL v. Twalk Dev., LL 887 N.W
4
2
E
LC
ker
LC,
W.2d 536 (
(N.D.
2016)).) Alternatively, Saffo ar
rgues that the Court c
t
could look t the “fair market va
to
r
alue.”
9

(ECF No. 132 at 6-7 (citing Dolan v. McQuaide, 215 Md. App. 24, 40, 79 A.3d 394, 403 (Md.
Ct. Spec. App. 2013); Brault Graham, LLC v. Law Offices of Peter G. Angelos, P.C., 211 Md. App.
638, 669, 66 A.3d 71, 89 (Md. Ct. Spec. App. 2013)).) Either way, Saffo contends that expert
opinions on profits are irrelevant.
Klicos, on the other hand, argues that this Court should follow Judge Motz’ earlier
ruling that Klicos’ “expert report outlining Saffo’s profits can be used, in conjunction with
other witness testimony, to infer the value provided to Saffo by Klicos’ work.” (ECF No.
105 at 10.) Klicos goes on to argue that because the “measure of recovery is the gain to the
defendant, not the loss by the plaintiff,” Alternatives Unlimited, Inc. v. New Baltimore City Bd. of
Sch. Comm’rs, 155 Md. App. 415, 485, 843 A.2d 252, 293 (Md. Ct. Spec. App. 2004), the
measure of damages in this case is the amount Saffo was paid by the MTA for Klicos’ work.
(Opp’n at 4, ECF No. 134.) Klicos emphasizes that the MTA payments are the appropriate
measure because Klicos’ services “were the effective catalyst for a quantifiable gain to the
defendant.” (Id. at 5 (quoting Slick v. Reinecker, 154 Md. App. 312, 337, 839 A.2d 784, 799
(Md. Ct. Spec. App. 2002)).) Klicos contends that Saffo itself quantified the gain when it
negotiated the contract with the MTA.8
Saffo’s attempt to distinguish Judge Motz’ prior ruling on this issue is unavailing.
While a contract to split profits evenly will not be at issue at trial, this Court, as the factfinder
in this case, would find it helpful to have experts provide calculations as to Saffo’s profits on
this project. See Rule 702(a). As Judge Motz has explained, “the operative question will be
whether the actual value realized by Saffo for Klicos’s work is more or less than

8 In its brief, Klicos argues that it is entitled to “disgorgement” of Saffo’s profits (ECF No 134 at 6), but at the hearing
Klicos clarified that the MTA payments sought by Klicos already include profits. While potentially relevant to the “actual
value realized by Saffo,” profits in themselves are not necessarily dispositive.

10

$2,738,600.73,” the amount of money Saffo has already paid to Klicos. (ECF No. 105 at 10.)
Saffo’s profits are relevant to measuring, though not necessarily dispositive of, the value
realized by Saffo for Klicos’ work.
In seeking to exclude the profit calculations, Saffo has offered two alternative
measures for the “actual value realized by Saffo,” but neither method is appropriate here.
Saffo’s insistence on using Klicos’ costs ignores the Maryland Court of Special Appeals’
holding in Alternatives Unlimited that unjust enrichment should be measured by “gain to the
defendant, not the loss by the plaintiff.” 155 Md. App. at 485, 843 A.2d at 293. Rather than
addressing the ambit of that decision directly, Saffo cites cases applying Virginia and North
Dakota law, which do not bear on this case. (See ECF No. 134 at 7.)
Saffo also advances fair market value as an alternative measure that, if dispositive,
would render profits irrelevant. Even the cases relied upon by Saffo, however, hold that fair
market value generally measures damages in cases of contracts implied-in-fact, not unjust
enrichment. See Dolan, 215 Md. App. at 40, 79 A.3d at 403; Brault Graham, 211 Md. App. at
669, 66 A.3d at 89. While the court in Dolan held that market value may provide “evidence”
of “actual value” in cases of unjust enrichment, 215 Md. App. at 40, 79 A.3d at 403, the
same court held in Slick that market value is not a concern when “those services were the
effective catalyst for a quantifiable gain,” 154 Md. App. at 337, 839 A.2d at 799. The Court
of Appeals’ decisions in Brault Graham and Dolan do not undermine this holding in Slick.9

9 The Brault Graham decision actually cites Slick for another proposition, 211 Md. App. at 668, 66 A.3d at 89, and the
Dolan decision does not discuss – let alone reverse or narrow – the Slick decision, see 215 Md. App. 24, 79 A.3d 394. At
best, fair market value is non-dispositive evidence of actual value, Dolan, 215 Md. App. at 40, 79 A.3d at 403, and that is
insufficient to render Saffo’s profits irrelevant.

11

In this case, the paymen by MTA to Saffo co
n
nts
A
onstitute a “
“quantifiable gain” to S
Saffo,
Slick, 154 Md. App. at 337, 839 A.2d at 79 and this Court’s tas at trial w be, in pa to
4
.
9
99,
s
sk
will
art,
attribute the MTA proceeds to the partie respectiv efforts. S
o
es’
ve
Saffo has fa
ailed to esta
ablish
e
ulations wi be irrele
ill
evant to id
dentifying the approp
priate
that the experts’ profit calcu
breakdow For exa
wn.
ample, the profit calcu
ulations may help the Court iden
ay
ntify areas w
where
Saffo’s own invest
tments, rath than Klicos’ wor helped to generat certain M
her
K
rk,
te
MTA
payment It would therefore be prematur at this sta to exclu Opinion 1 and 2. This
ts.
b
re
age
ude
ns
Court re
ecognizes th it may be necessa to revisi this issue during tri Accordi
hat
ary
it
e
ial.
ingly,
Saffo’s request to exclude Opinions 1 and 2 as irrelevant is DENIE WITHO
r
O
ED
OUT
PREJUD
DICE. Spec
cifically, whi this Cou will perm the adm
ile
urt
mit
mission of th
hese opinio at
ons
trial, Saff may challenge the re
fo
elevancy of those opinio
t
ons.
II.

Opinion 3
O
work
According to Saffo, Klic experts intend to t
A
o
cos’
s
testify that “the value o Klicos’s w
of

[on] the project equ
uated to 100% of the pr
rofits realize by Saffo from Klico work.” (
ed
os’s
(ECF
No. 132 at 1.) Saffo argues that this opinio should be excluded a untimely, unfounded and
t
on
e
as
d,
“contrad
dictory to th legal stan
he
ndard for th measure of damage in this ca
he
es
ase.” (Id.) A the
At
hearing, Klicos expressed conc
cern over th exact cha
he
aracterizatio of this o
on
opinion, and this
d
Court no that Mr Lowe actu
otes
r.
ually testified in his dep
d
position that “Klicos wo be entit to
t
ould
tled
[the] valu of the work and a hundred per
ue
w
h
rcent of the profit on th work.” (ECF No. 1
hat
132-5
at 128 (e
emphasis added).) Eithe formulatio is proble
er
on
ematic.

12

This Court expressed concern at the hearing that, even if disclosed in a timely
fashion,10 Opinion 3 essentially constitutes a legal conclusion that is properly reserved for
the Court and that would not be helpful to the Court as the factfinder. See Barile, 286 F.3d at
760. Specifically, the experts might help this Court quantify the profits or understand the
parties’ contributions to certain project milestones, but an engineering or accounting expert
cannot help this Court determine the appropriate legal standard for measuring an unjust
enrichment claim.
In response to the Court’s concerns, Klicos acknowledged at the hearing that it has
no intention of using its experts to offer legal conclusions as to the applicable standard for
recovery in this case. Klicos conceded that it is up to the Court – with the help of counsel –
to tell the experts which standard to apply. At this stage, Saffo – not Klicos – has brought
this potential opinion to the Court’s attention, and this Court sees no reason to doubt
Klicos’ assurance that it will not offer this opinion at trial. Saffo’s objection to Opinion 3 is
therefore DENIED AS MOOT.
CONCLUSION
For the reasons set forth above, the Motion in Limine (ECF No. 132) is DENIED
WITHOUT PREJUDICE.
A separate order follows.
May 30, 2018
Date

______/s/________________
Richard D. Bennett
United States District Judge

Klicos has not resolved this Court’s questions as to whether the experts included this opinion in their prior reports
and as to why any failure to do so should be excused. Given Klicos’ concession at the hearing, see infra, this Court need
not dispose of Saffo’s request on this ground.
10

13