Gonzalez Production Systems, Inc. v. Martinrea International Inc.

Filing 231

OPINION AND ORDER RESOLVING EVIDENTIARY ISSUE ONE AND TWO IN GONZALEZS MOTION IN LIMINE 184 , GRANTING IN PART AND DENYING IN PART MARTINREAS MOTIONS IN LIMINE [186, 190], AND DENYING MARTINREAS MOTION IN LIMINE 188 . Signed by District Judge Gershwin A. Drain. (TBan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
GONZALEZ PRODUCTION SYSTEMS, INC.,
Plaintiff/Counter-Defendant,
Case No. 13-cv-11544

v.

UNITED STATES DISTRICT COURT JUDGE
GERSHWIN A. DRAIN

MARTINREA INTERNATIONAL INC.,

UNITED STATES MAGISTRATE JUDGE
R. STEVEN WHALEN

Defendant,
MARTINREA HEAVY STAMPINGS INC.,
Defendant/Counter-Plaintiff.
/

OPINION AND ORDER RESOLVING “EVIDENTIARY ISSUE” ONE AND TWO IN GONZALEZ’S
MOTION IN LIMINE [184], GRANTING IN PART AND DENYING IN PART MARTINREA’S
MOTIONS IN LIMINE [186, 190], AND DENYING MARTINREA’S MOTION IN LIMINE [188]
I. INTRODUCTION
Gonzalez Production Systems, Inc. (“Gonzalez” or “Plaintiff/Counter-Defendant”),
commenced this action on April 4, 2013 against Martinrea International Inc. (“Martinrea
International” or “Defendant”). See Dkt. No. 1. On May 17, 2013, Gonzalez filed an Amended
Complaint

adding

Martinrea

Heavy

Stampings,

Inc.

(“Martinrea

Stampings”

or

“Defendant/Counter-Plaintiff”) as an additional Defendant in this dispute. See Dkt. No. 8. In the
Amended Complaint, Gonzalez contends that both Martinrea International and Martinrea
Stampings (collectively “Martinrea” or “Defendants”) are liable for breach of contract, or, in the
alternative, liable in equity under the theory of promissory estoppel. Id.
On June 17, 2013, Martinrea Stampings filed a counterclaim against Gonzalez for breach
of contract. See Dkt. No. 201. On November 17, 2014, this Court entered an Order Denying

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Martinrea’s Motion for Summary Judgment and Granting Gonzalez’s Motion for Partial
Summary Judgment. See Gonzalez Prod. Sys., Inc. v. Martinrea Int'l Inc., No. 13-cv-11544,
2014 WL 6455592, at *1 (E.D. Mich. Nov. 17, 2014). On January 26, 2015, less than a month
before trial was originally set to begin, and after a contentious dispute regarding the admissibility
of the parties’ expert reports, this Court amended the scheduling order and postponed the trial to
quell concerns about prejudice to the parties. See Dkt. No. 155 (moving trial to August 11,
2015); see also Dkt. No. 161 (moving trial to September 22, 2015 at the request of the parties).
Martinrea has now filed ten Motions in Limine in preparation for trial [168, 170, 174,
180, 181, 182, 186, 188, 190], while Gonzalez filed one Motion in Limine [184] covering five
distinct “Evidentiary Issues.” The Motions are fully briefed. Given the extensive disputes the
parties have had regarding expert testimony in this case, the Court held a Daubert hearing for the
proposed experts on August 10, 2015. After reviewing the briefs and arguments of the parties,
and listening to the experts’ testimony, the Court will resolve Gonzalez’s “Evidentiary Issues
Numbers One and Two” per the stipulation of the parties, GRANT in part and DENY in part
Martinrea’s Motions in Limine [186, 190], and DENY Martinrea’s Motion in Limine [188]. The
Court’s Opinion and Order addressing the admissibility of the expert testimony is set forth in
detail below. The remaining Motions in Limine [168, 170, 174, 180, 181, 182, 184] will be
addressed in a separate and forthcoming Opinion and Order.
II. Legal Standard
The admissibility of testimony from expert witnesses is governed by Rule 702 of the
Federal Rules of Evidence. Pursuant to Rule 702, a “witness who is qualified as an expert by
knowledge, skill, experience, training, or education may testify in the form of an opinion” if the
following criteria are met:

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(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 methods; and
(d) the expert has reliably applied the principles and methods to the facts of the
case.
FED. R. EVID. 702. The Supreme Court has indicated that Rule 702 places a special obligation on
the trial court to serve as a gatekeeper, ensuring that “any and all scientific testimony or evidence
admitted is not only relevant, but reliable.” Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579,
589, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The “gatekeeping obligation” is not limited to
“scientific” expert testimony, but applies to all expert testimony. See Kumho Tire Co., Ltd. v.
Carmichael, 526 U.S. 137, 141, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). The proponent of the
expert must establish admissibility by a preponderance of the evidence. See Nelson v. Tenn. Gas
Pipeline Co., 243 F.3d 244, 251 (6th Cir. 2001).
In Daubert, the Supreme Court provided a non-exclusive checklist for trial courts to
consult when evaluating the reliability of expert testimony. 509 U.S. at 593, 113 S.Ct. 2786, 125
L.Ed.2d 469. In doing so, “Daubert attempt[ed] to strike a balance between a liberal
admissibility standard for relevant evidence on the one hand and the need to exclude misleading
‘junk science’ on the other.” Best v. Lowe's Home Ctrs., Inc., 563 F.3d 171, 176–177 (6th Cir.
2009). District courts must determine whether the expert’s testimony meets three requirements:
(1) the expert witness must be qualified by “knowledge, skill, experience, training or education,”
(2) the proffered testimony must be relevant and “assist the trier of fact to understand the
evidence or to determine a fact in issue,” and (3) the testimony must be reliable in that it is based
on scientific, technical or other specialized knowledge. See In re Scrap Metal Antitrust
Litigation, 527 F.3d 517, 529 (6th Cir. 2008).

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As to the third requirement, the Supreme Court set forth three additional factors to be
considered in determining whether to admit expert testimony as reliable: (1) whether the expert’s
theory has been tested; (2) whether the expert’s theory “has been subjected to peer review and
publication;” and (3) whether there is a “known or potential rate of error” and “standards
controlling” the particular technique and whether it has been generally accepted within the
pertinent community. See Daubert, 509 U.S. at 593–594, 113 S.Ct. 2786, 125 L.Ed.2d 469; see
also Kumho Tire, 526 U.S. at 149, 119 S.Ct. 1167, 143 L.Ed.2d 238.
The above factors are neither definitive nor exhaustive, and may or may not be pertinent
to the assessment in any particular case. See Kumho Tire, 526 U.S. at 141, 119 S.Ct. 1167, 143
L.Ed.2d 238; see also In re Scrap Metal, 527 F.3d at 529 (noting that the factors “may be
tailored to the facts of a particular case,” and “should be applied only where they are reasonable
measures of the reliability of expert testimony.”) (citations omitted). The trial court has broad
latitude to determine whether the factors are reasonable measures of reliability in a particular
case. See Kumho Tire, 526 U.S. at 153, 119 S.Ct. 1167, 143 L.Ed.2d 238; see also In re Scrap
Metal, 527 F.3d at 529 (noting the test for reliability is “‘flexible,’ and the Daubert factors do not
constitute a definitive checklist or test and may not be dispositive in every case.”).
In fulfilling its “gatekeeping” duties the Court must make a determination of proposed
experts’ qualifications and an assessment of the relevance and reliability of the proffered
testimony. See Greenwell v. Boatwright, 184 F.3d 492, 498 (6th Cir. 1999); Clay v. Ford Motor
Co., 215 F.3d 663, 667 (6th Cir. 2000); Morales v. American Honda Motor Co., Inc., 151 F.3d
500, 516 (6th Cir. 1998); cf., Kumho Tire Co, 526 U.S. at 152, 19 S.Ct. 1167, 143 L.Ed.2d 238
(noting abuse of discretion standard applies to the trial court’s decision as to whether a hearing is
needed to determine reliability of an expert).

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Ultimately, “nothing in either Daubert or the Federal Rules of Evidence requires a district
court to admit opinion evidence which is connected to existing data only by the ipse dixit of the
expert. A court may conclude that there is simply too great an analytical gap between the data
and the opinion proffered.” GE v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508
(1997). Nevertheless, it is important to note that the “rejection of expert testimony is the
exception, rather than the rule[.]” In re Scrap Metal, 527 F.3d at 530.
III. DISCUSSION
As discussed, the Court held a Daubert hearing in order to address the admissibility of
expert testimony. The Court will first address Gonzalez’s Motion in Limine [184] with respect
“Evidentiary Issues Numbers One and Two”—the exclusion of certain testimony from
Martinrea’s expert witnesses Joseph Cyrek and Mark Robinson. The Court will then address
Martinrea’s three Motions in Limine addressing the exclusion of Gonzalez’s proposed experts
Clark J. Radcliffe [186], Michael J. Tracy [188], and Lawrence A. Simon [190].
A. Gonzalez’s Motion [184]
Gonzalez submitted one Motion seeking five different orders in limine. See Dkt. No. 184.
The Court will now address Gonzalez’s first two “Evidentiary Issues” covering the scope of
Martinrea’s expert testimony from Joseph Cyrek and Mark Robinson (“Evidentiary Issues
Numbers One and Two”) given a stipulation between the parties at the Daubert hearing.
However, the Court will cover the last three evidentiary issues—the testimony of Martinrea’s
fact witnesses (“Evidentiary Issue Number Three”), the “law of the case” doctrine (“Evidentiary
Issue Number Four”), and the form of witness testimony at trial (“Evidentiary Issue Number
Five”)—in the forthcoming Opinion and Order.
Prior to the Daubert hearing, the parties stipulated to the entry of an order concerning
“Evidentiary Issues Numbers One and Two” only. The Court had the parties read the relevant
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terms of the stipulation into the record. The parties subsequently sent the following written
stipulation to the Court to clearly express the parameters of the stipulation:
Martinrea’s testifying industry expert, Joseph Cyrek, is prohibited from
presenting testimony in the form of legal conclusions at trial, as follows:
1. Cyrek will not testify regarding whether either party met the
contractual milestones, including but not limited to payment
milestones, in the Equipment Purchase Agreement.
2. Cyrek will not characterize the parties as having entered into a
“settlement” or “settlement agreement” of any disputed issues.
3. Cyrek will not opine that Martinrea met its contractual obligations
under Section 4, “Customer to Supply Items” of Gonzalez’s Program
Assumptions.
4. Cyrek will not opine that Gonzalez breached its responsibilities under
the Equipment Purchase Agreement.
5. Cyrek will not opine that Martinrea did not breach its responsibilities
under the Equipment Purchase Agreement.
6. Cyrek will not opine regarding what Michigan contract law does and
does not require of contracting parties.
7. Cyrek will not opine that Gonzalez and Martinrea’s contract was a
“fixed price contract.”
Martinrea’s testifying damages expert, Mark Robinson, is prohibited from
presenting testimony in the form of legal conclusions at trial, as follows:
1. Robinson will not opine that Gonzalez’s damages expert Mr. Simon
prepared a Report that does not comply with Fed. R. Civ. P. 26.
2. Robinson will not characterize the parties as having entered into a
“settlement” or “settlement agreement” of any disputed issues.
3. Robinson will not testify about his interpretation of the Court’s order
and his opinion that the Court ruled Gonzalez is not entitled to recover
lost profits damages.
4. Robinson will not opine that Gonzalez and Martinrea’s contract was a
“fixed price contract.”
5. Robinson will not opine regarding what Michigan contract law does
and does not require of contracting parties.
6. Robinson will not opine regarding the meaning of contractual
provisions.
7. Robinson will not opine that Martinrea met its contractual obligations
under Section 4, “Customer to Supply Items” of Gonzalez’s Program
Assumptions.
8. Robinson will not opine that Gonzalez breached its responsibilities
under the Equipment Purchase Agreement.

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9. Robinson will not opine that Martinrea did not breach its
responsibilities under the Equipment Purchase Agreement.
10. Robinson will not opine that Gonzalez’s claims fail to satisfy the legal
standard for a breach of contract or promissory estoppel claim.
11. Robinson will not opine that Martinrea paid Gonzalez more than was
contractually required.
Nothing in this Order shall prevent Martinrea’s expert witnesses from testifying at
trial concerning the facts, circumstances, or the underlying subject matters at issue
during the trial, so long as the questions and testimony do not elicit or constitute
inadmissible legal conclusions and nothing in this Order alters the language and
application of FRE 704 which provides that “an opinion is not objectionable just
because it embraces an ultimate issue.” The Court will address any question or
testimony to which Gonzalez objects, based on the specific question asked or
testimony given at trial.
Having reviewed this stipulation, listened to the parties’ stipulation on the record, and the Court
being otherwise fully advised in the premises, the Court will resolve Evidentiary Issues Number
One and Two by incorporating the stipulation between the parties into this Opinion and Order.
B. Martinrea’s Motions [186, 188, 190]
The Court will next address Martinrea’s three Motions in Limine addressing the exclusion
of Gonzalez’s proposed experts Clark J. Radcliffe [186], Michael J. Tracy [188], and Lawrence
A. Simon [190]. These Motions seek broad exclusions of testimony. Prior to conducting its
analysis, the Court notes that the Sixth Circuit has stated: “Orders in limine which exclude broad
categories of evidence should rarely be employed. A better practice is to deal with questions of
admissibility of evidence as they arise.” Sperberg v. Goodyear Tire & Rubber Co., 519 F.2d 708,
712 (6th Cir. 1975); see also Dunn ex rel. Albery v. State Farm Mut. Auto. Ins. Co., 264 F.R.D.
266, 274 (E.D. Mich. 2009) (“Normally, motions in limine are not proper procedural devices for
the wholesale disposition of theories or defenses.”) (citation omitted); Land Situated in City of
Detroit, 547 F. Supp. at 681(“Any broad pretrial exclusion of evidence . . . must be approached
with great caution.”). Furthermore, the Court reiterates that “rejection of expert testimony is the
exception, rather than the rule[.]” In re Scrap Metal, 527 F.3d at 530.

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1. The Court will GRANT in part and DENY in part Martinrea’s “Motion to
Exclude Plaintiff’s Proposed Expert Clark J. Radcliffe’s Opinion Testimony”
[186].
The first of Martinrea’s Motions regarding expert testimony argues that “Mr. Radcliffe
should not be permitted to testify as an expert regarding the assembly line design process
generally because the assembly line design process generally is not at issue in this case.” Dkt.
No. 186 at 13. At the Daubert hearing, Martinrea did not seem to challenge Professor Radcliffe’s
qualifications to testify as an expert. For this reason, the Court disagrees that Professor Radcliffe
should be precluded from testifying entirely. Instead, at the Daubert hearing, Martinrea disputed
whether Professor Radcliffe’s opinion testimony would be relevant to the case because they felt
he was going “a step further” and giving more than a scientific exposition for principles on
engineering and assembly lines in general. To this point the Court agrees. Accordingly, the Court
will GRANT in part and DENY in part this Motion in Limine [184].
The Daubert hearing made it clear that Professor Radcliffe possesses sufficient
knowledge and expertise in the design of dynamic and mechanical systems, and has an extensive
grasp of the engineering method. Critically, Rule 702 of the Federal Rules of Evidence states that
an expert witness may testify if his opinion will help the fact finder understand the evidence or to
determine a fact in issue. FED. R. EVID. 702(a). Professor Radcliffe’s qualifications and proposed
general testimony about engineering design, the engineering process, and construction will be
beneficial to the members of the jury so they may understand how assembly lines work and may
understand other evidence introduced at trial. It is unlikely that this subject matter will be a
familiar topic within the knowledge of the members of the jury. See Kuhmo Tire Co., 526 U.S.
at 149 (“[T]he expert’s testimony often will rest ‘upon an experience confessedly foreign in kind
to [the jury’s] own.’”). Since Professor Radcliffe’s testimony will be helpful in understanding
assembly lines and other evidence within the trial; it is relevant, reliable and admissible.
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At the hearing, however, it became apparent that Martinrea was not challenging Professor
Radcliffe’s ability to testify generally to the principles of engineering and assembly lines.
Indeed, counsel for Martinrea indicated that they were “fine” with Radcliffe simply testifying to
engineering standards in a vacuum. Instead, Martinrea raised concerns that Professor Radcliffe
would testify about the general process used by Gonzalez for assembly lines in addition to the
general process for assembly lines in the industry. Martinrea emphasized that Professor Radcliffe
did not verify that Gonzalez, or its subcontractors, followed the process generally used by
Gonzalez. Accordingly, Martinrea argues Professor Radcliffe’s testimony will confuse the jury
because the jury may conflate the general process used by Gonzalez with the standard process
used in the industry. The Court agrees.
In its brief, Gonzalez quoted Rule 702’s Advisory Committee Notes for the following
proposition: “The rule accordingly recognizes that an expert on the stand may give a dissertation
or exposition of scientific or other principles relevant to the case, leaving the trier of fact to apply
them to the facts.” Dkt. No. 207 at 8 (quoting Fed. R. Evid. 702 Advisory Committee Notes,
1972 Proposed Rules). Gonzalez then stated: “This is exactly what Prof. Radcliffe’s testimony
will do: provide the jury with the scientific and technical knowledge to understand the disputed
facts so that they can apply the scientific principles to the facts.” Id.
However, Gonzalez did not exactly explain what Professor Radcliffe’s testimony would
entail. When pressed, Gonzalez indicated that Professor Radcliffe would testify that the general
process used by Gonzalez is in compliance with the general standards of engineering and design.
This is problematic for two reasons. First, after listening to Professor Radcliffe refer to the
general process used by Gonzalez and then refer to the standard engineering process, it seemed
that he could have been conflating the two processes. Second, Mr. Radcliffe’s testimony that he

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spoke with individuals who worked for Gonzalez to reach his conclusion gave the impression
that the general process used by Gonzalez was actually followed, and in compliance with general
engineering standards, on this project. After hearing Professor Radcliffe’s testimony as a whole,
it seemed as though he was drawing a correlation between the two processes, such that the jury
may conclude that Gonzalez was actually in compliance on this project, even though Professor
Radcliffe did not investigate if Gonzalez actually followed its own process on this project.
While Gonzalez may think that this danger of confusing the jury is minimal, the Court
emphasizes that Professor Radcliffe’s testimony about the general process used by Gonzalez and
his conversations with individuals who worked for Gonzalez is unnecessary. It is not readily
clear why Professor Radcliffe needs to speak about the general process used by Gonzalez at all;
especially if he is simply educating the jury generally on the engineering method, engineering
principles, engineering processes, engineering terminology, and assembly lines. Once he
explains these concepts like he did in the Daubert hearing, the jury will have full context and be
able to better “understand the disputed facts so that they can apply the scientific principles to the
facts.” Dkt. No. 207 at 8 (referencing FED. R. EVID. 702 Advisory Committee Notes, 1972
Proposed Rules). Testimony about the general process used by Gonzalez and Professor
Radcliffe’s conversations with Gonzalez personnel only muddies the waters. Thus, it will not be
allowed at trial and this Court will GRANT in part and DENY in part this Motion [186].
2. The Court will DENY Martinrea’s “Motion to Exclude Plaintiff’s Proposed
Expert Michael J. Tracy’s Opinion Testimony” [188].
Next, Martinrea requests that the Court “enter an Order excluding Mr. Tracy from
offering expert opinion testimony at trial[.]” Dkt. No. 188 at 18. According to Martinrea, Mr.
Tracy’s proposed opinion testimony should be excluded because it “is not helpful, relevant or
reliable.” Id. at 5. This Court disagrees and will DENY this Motion in Limine [186].

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As an initial matter, Martinrea’s argument that Mr. Tracy’s testimony is not relevant fails.
Martinrea argues that Mr. Tracy’s opinion is not grounded in actual facts because “he doesn’t
even know what the Contract is or what the parties responsibilities under the Contract or
negotiated change orders were.” Dkt. No. 188 at 9. However, the fact that Mr. Tracy is not a
lawyer and does not understand the legal responsibilities between the lawyers is not a basis to
exclude his testimony. To the contrary, Mr. Tracy does not need to understand the legal aspects
of the contract in order for his opinions concerning the equipment supplied by Martinrea to be
admissible. Mr. Tracy may opine on factual issues; not legal issues. See Hyland v. HomeServices
of Am., Inc., 771 F.3d 310, 322 (6th Cir. 2014) (citing Berry v. City of Detroit, 25 F.3d 1342,
1353 (6th Cir. 1994) to note that “a witness may not testify to a legal conclusion.”); Woods v.
Lecureux, 110 F.3d 1215, 1220 (6th Cir. 1997) (citing FED. R. EVID. 702 to state that expert
testimony that “attempts to tell the jury what result to reach and which runs the risk of interfering
with a district court’s jury instructions, hardly can be viewed as being helpful to the jury.”).
Furthermore, contrary to Martinrea’s assertions, Mr. Tracy’s proposed testimony
convincingly appears to show that it will assist the trier of fact in understanding evidence or
determining an issue. See Daubert, 509 U.S. at 591. Mr. Tracy’s report provides a synthesis of
complex information regarding the assembly line at issue. His report draws from reports on the
Martinrea equipment, see, e.g., Dkt. No. 189-1 at 49-50, third-party material on the types of
equipment in question, see id. at 78, and his professional experience and scientific knowledge,
see, e.g., id. at 42. Moreover, at the Daubert hearing, Mr. Tracy explained how he used his
unfettered access to documentation within the Gonzalez system to derive five principal areas that
lead to technical problems on the line at issue. The average lay juror likely does not have the
engineering background such that they would understand the documents examined by Mr. Tracy

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to reach his conclusions. It is hard to imagine that Mr. Tracy’s reduction of this complex
information into a concise five-factor assessment would not assist an average juror in
understanding the workings of a complex and obscure assembly line system. See id. at 24-26
(explaining the five-factor assessment which was based of sixteen “detailed opinions”).
Nevertheless, Martinrea says that Mr. Tracy’s testimony should be excluded because his
opinions are “not beyond the ‘ken of lay jurors’ to comprehend themselves.” Dkt. No. 188 at 13.
The Court strongly disagrees with this contention. According to Martinrea, Mr. Tracy’s opinions
do not provide uncommon knowledge because “a jury is more than capable of examining
documents admitted into evidence and developing their own opinions.” Dkt. No. 188 at 14. This
assertion misrepresents the requirements of Rule 702. As set out by the Advisory Committee
Notes to Rule 702 of the Federal Rules of Evidence, the question is whether, absent the expert
testimony, an average jury would be able to “determine intelligently and to the best possible
degree the particular issue.” FED. R. EVID. 702, Advisory Committee Notes (emphases added).
The Court must consider whether the jurors could arrive at an informed conclusion on their own;
without scientific or specialized knowledge. The Court does not, as Defendants suggest, simply
consider whether a jury would be capable of coming to any opinion at all. See Dkt. No. 188 at 17
(citing Eberli v. Cirrus Design Corp., 615 F. Supp. 2d 1357, 1367 (S.D. Fla. 2009).
Martinrea’s argument downplays the fundamental benefit of expert testimony—to assist a
jury in coming to an informed conclusion where they might otherwise come to an ignorant one.
Mr. Tracy’s proposed testimony seems sufficient pursuant to Rule 702. The Sixth Circuit set out
two categories of sufficiently uncommon knowledge: (1) knowledge grounded in scientific
principles of which the average juror would not be aware—for example, an aeronautical engineer
assessing how a bumblebee would be able to fly—and (2) knowledge grounded in repeated first-

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hand observations not available to the average juror—for example, a beekeeper recognizing that
bumblebees always take off into the wind. See Berry v. City of Detroit, 25 F.3d 1342, 1349-50
(6th Cir. 1994). Each of the five factors in Mr. Tracy’s “Opinion Summary” appears to
incorporate one or both of these principles.
For example, regarding factor one (“Robot Condition”), Mr. Tracy asserts that “a robot
that is slowed by 10% is likely to add 2 to 3 seconds to cycle time.” Dkt. No. 189-1 at 24. The
average juror would not be aware of this obscure causal relationship. Another example of such
assertions can be seen in regard to factor five (“[Martinrea] Compressed Air System”). For factor
five Mr. Tracy notes that Martinrea’s addition of pneumatic pressure sensors to weld guns was
“not common in welding systems . . . and required additional communications time.” Id. at 26.
Again, the average juror would not be aware of this information.
Martinrea also takes the position that Mr. Tracy’s testimony is not sufficiently tied to the
facts of the case that it will aid the jury in resolving a factual dispute. See Daubert, 509 U.S. at
591, 113 S.Ct. 2786, 125 L.Ed.2d 469 (quoting United States v. Downing, 753 F.2d 1224, 1242
(3d Cir. 1985)). Given that Mr. Tracy’s proposed testimony deals entirely with the functioning of
the equipment used for this job, and the possibility that the equipment contributed to the failure
of the assembly line at issue, the Court finds that the proposed opinion testimony is sufficiently
tied to the relevant facts to assist the jury in resolving the central issue in this case.
Mr. Tracy’s assertions are the product of repeated first-hand observations given his
experience in the industry. His proposed testimony contains conclusions that are the product of
assessing and synthesizing a wide-range of information relating to assembly-line robotics and
equipment standards, including his own experiences working in the field. There is a foundational
connection between Mr. Tracy’s extensive past experience with automotive assembly-line

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projects and the information provided. Id. at 68-76. Put simply, Mr. Tracy’s proposed testimony
will assist the jury, is tied to the facts of the case, and is relevant.
Aside from arguing that Mr. Tracy’s testimony is not relevant, however, Martinrea also
argues that Mr. Tracy’s opinions are not reliable because the testimony (1) is “based on the
unsupported, self-serving conclusions of Gonzalez and not an independent evaluation of all
available facts,” (2) consists of conclusory opinions that fail to address any contrary evidence,
and (3) is merely a “regurgitation” of information provided by a Gonzalez memorandum. The
Court finds that these concerns are overstated and better suited for cross-examination.
For example, Martinrea argues that Mr. Tracy’s opinions lack good grounds because he
didn’t “even address evidence contrary to his opinions and offered no analysis or explanation” in
Martinrea’s view for “why his opinions are contradictory to certain record evidence.” Dkt. No.
188 at 10. However, Mr. Tracy asserted on the stand that he reviewed the depositions of several
Martinrea witnesses, who espoused contradictory evidence and information, before he deemed
them unreliable to reach his own conclusion. Cf. Dkt. No. 189-1 at 80. For each of the opinions
provided in his report, Mr. Tracy provides a list of sources on which the opinions were founded.
These sources include, in addition to the Martinrea depositions, product specifications for the
equipment in question as well as third-party materials regarding assembly-line operations. Thus,
the method utilized by Mr. Tracy was not “simply review[ing] documents, interview[ing]
Gonzalez personnel and develop[ing] opinions in a vacuum without considering or validating
those opinions against the totality of what is known.” Dkt. No. 188 at 14. The breadth of
information incorporated into Mr. Tracy’s assessment and explained at the Daubert hearing
provides sufficiently good grounds for admissibility.1

1

Moreover, there appears to be no strict requirements in the Sixth Circuit that an expert must assess contrary
evidence in order for their testimony to be based on good grounds. If anything, the Sixth Circuit and this Court have

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Martinrea also argues that Mr. Tracy’s opinion is merely his own ipse dixit without
sufficient testing and methodology. Dkt. No. 188 at 11. Particularly, Martinrea argues that Mr.
Tracy merely “regurgitates” opinions provided by Gonzalez and did not “actually examin[e]” the
equipment provided by Martinrea. Id. at 16. However, expert witnesses generally do not provide
factual accounts of the contested issues, and they are permitted to comment on the evidence that
others supply. FED. R. EVID. 703. Expert witnesses are allowed to testify based on information
furnished by others because they have technical expertise in a given field that “will help the trier
of fact to understand the evidence.” FED. R. EVID. 702(a). The key is making sure Mr. Tracy’s
testimony is not a mouthpiece of Gonzalez—“a party's lawyer's avatar”—because he would then
“contribute[] nothing useful to the decisional process.” Numatics, Inc. v. Balluff, Inc., 66 F.
Supp. 3d 934, 941 (E.D. Mich. 2014).
At the Daubert hearing, Mr. Tracy emphasized that he developed his conclusions
independently. He emphasized that he did not physically inspect the line at issue because it had
been modified and it would be counterproductive to compare the line in its current state since the
line was not in that state during the time in dispute. Martinrea’s concerns all go to the weight of
the testimony rather than its admissibility. Such concerns can be addressed through vigorous
cross-examination. See United States v. Freeman, No. 06-20185, 2015 WL 2062754, at *5 (E.D.
Mich. May 4, 2015); see also, United States v. Allums, No. 2:08–CR–30 TS, 2009 WL 806748,
at *2 (D. Utah Mar.24, 2009) (“[T]hese arguments, and others that might cast doubt on [Agent's]
conclusions in this specific case, are legitimate questions that would be appropriately raised on
cross-examination of [Agent], at trial.”) (brackets and alterations in original).

a low threshold for factual sufficiency in admitting expert testimony. See, e.g., Pretzer v. Otto Bock Healthcare LP,
No. CIV. 09-11894-BC, 2010 WL 726953, at *8 (E.D. Mich. Feb. 24, 2010) (citing U.S. v. L.E. Cooke Co., 991 F.
2d 336, 342 (6th Cir. 1993), which states that “any weaknesses in the factual basis of an expert witness' opinion,
including unfamiliarity with standards, bear on the weight of the evidence rather than on its admissibility”).

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In sum, Mr. Tracy’s report incorporates facts of the case as provided through discovery
documents, technical specifications of the equipment in question, third-party information
regarding the operation of the assembly line at issue, and his own technical knowledge and
experience. Mr. Tracy relies on reports and documentation from both parties regarding the
functioning of the equipment. Notably, both parties will be calling industry experts. Just because
Martinrea disagrees with Gonzalez’s framing of the facts, it does not mean that this Court should
exclude all of Gonzalez’s testimony. See FED. R. EVID. 702 Advisory Committee Notes, 2000
amends. (“When facts are in dispute, experts sometimes reach different conclusions based on
competing versions of the facts. The emphasis in the amendment on ‘sufficient facts or data’ is
not intended to authorize a trial court to exclude an expert's testimony on the ground that the
court believes one version of the facts and not the other.”); Micro Chem., Inc. v. Lextron, Inc.,
317 F.3d 1387, 1392 (Fed. Cir. 2003) (“When, as here, the parties' experts rely on conflicting
sets of facts, it is not the role of the trial court to evaluate the correctness of facts underlying one
expert's testimony.”); Pipitone v. Biomatrix, Inc., 288 F.3d 239, 249–50 (5th Cir.2002) (holding
that jury was entitled to hear expert testimony and decide whether to accept or reject it after
considering whether predicate facts on which expert relied were accurate).
“[R]ejection of expert testimony is the exception, rather than the rule,” and the Court has
the discretion to “permit testimony based on allegedly erroneous facts when there is some
support for those facts in the record.” In re Scrap Metal, 527 F.3d at 530. Given Mr. Tracy’s
extensive expertise working with such robots and machines, and his explanation in the Daubert
hearing of his principles and methods and how they are tied to the facts of this case, the Court
finds that his opinion would help the jury understand the evidence. The concerns expressed by
Martinrea would best be served not by exclusion, but by “vigorous cross-examination,

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presentation of contrary evidence, and careful instruction on the burden of proof are the
traditional and appropriate means of attacking shaky but admissible evidence.” Conrail v. Grand
Trunk W. R.R. Co., 963 F. Supp.2d 722, 733 (citation omitted); see also FED. R. EVID. 702
Advisory Committee Notes, 2000 amends. (quoting United States v. 14.38 Acres of Land
Situated in Leflore County, Mississippi, 80 F.3d 1074, 1078 (5th Cir. 1996) for the proposition
that “the trial court's role as gatekeeper is not intended to serve as a replacement for the
adversary system.”). Accordingly, the Court will simply DENY this Motion [188].
3. The Court will GRANT in part and DENY in part Martinrea’s “Motion to
Exclude Plaintiff’s Proposed Expert Lawrence A. Simon’s Opinion Testimony”
[190].
Lastly, “Martinrea requests that Mr. Simon’s report and opinions be excluded under
[Rule 702 of the Federal Rules of Evidence].” Dkt. No. 190 at 30. Martinrea breaks its argument
up into four parts tracking the Expert Report of Mr. Simon. The Court will accept the damages in
Parts I and II of the report, reject the damages in Parts III and IV, and GRANT in Part and
DENY in part Martinrea’s final Motion in Limine [188] regarding the testimony of Mr. Simon.
a. Part I of Mr. Simon’s Report will be allowed with a qualification.
Martinrea first argues that Part I of Mr. Simon’s report “does not employ any helpful
specialized knowledge or expertise. Instead, Mr. Simon merely presents simple addition and
subtraction to arrive at the amount not paid under the contract and negotiated change orders.”
Dkt. No. 190 at 8. The Court disagrees. As Gonzalez points out, “Martinrea ignores a key point:
Mr. Simon had to review and analyze complex accounting records . . . in order to determine what
to add and subtract.” Dkt. No. 212 at 14. Martinrea oversimplifies the work done by Mr. Simon
because the findings of Mr. Simon would not be within the capabilities of the average juror.
Although Mr. Simon’s final formula does consist of adding up values, the Daubert
hearing made it clear that these values were derived by conducting detailed interviews, assessing
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a string of invoices in comparison with the original payment terms of the Agreement, and
assessing a series of purchase orders and engineering change orders. Cf. Dkt. No. 213-1 at 16. To
reach an intelligent conclusion on this issue requires a close familiarity with accounting
principles, at the very least. The average juror presumably does not possess this familiarity.
Indeed, the “simple arithmetic” described by Martinrea actually makes it easier for the average
jury to reach its conclusion. This was exemplified by Martinrea’s counsel simply relying on the
numbers derived as a result of Mr. Simon’s work in order to argue that his work should be
excluded. This is disingenuous; this opinion by Mr. Simon will assist the trier of fact.
Next, Martinrea argues “Mr. Simon’s Report must be excluded because his damage
methodology incorrectly assumes that the jury can award the exact same damages for breach of
contract and promissory estoppel.” Dkt. No. 190 at 9. The crux of Martinrea’s argument is that
the promissory estoppel damages figure is unreliable because the claim is based on an email
from October of 2011, which allegedly promised payment for out-of-scope work. See Dkt. No.
190 at 11. According to Martinrea, “the so-called extra costs claim . . . captures costs starting
with March of 2011, when the alleged promise to pay for out-of-scope work was not made until
October of 2011.” Id. However, as pointed out in Gonzalez’s Response, the email in question
states that Defendants would cover out-of-scope work “in accordance with our position since the
start of this project.” Dkt. No. 100-30 at 2. Thus, Gonzalez is correct in its assertion that
Martinrea’s promise to Gonzalez, inducing performance outside of the agreed contract scope,
occurred not on October 30, 2011, but at the start of the project.
However, the Court will not just accept Mr. Simon’s report because, as Martinrea
explains, Mr. Simon “does not distinguish or separate [the] mutually exclusive sets of alleged
damages.” Dkt. No. 190 at 10. Indeed, Mr. Simon indicated that he believed that the damages are

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“all recoverable under both the breach of contract and promissory estoppel.” Dkt. No. 192-1 at 78. Moreover, Mr. Simon’s report labels the “Summary of Total Damages” as “Breach of the
Equipment Purchase Agreement and Promissory Estoppel.” See Dkt. No. 195-1 at 9.
Such admissions from Mr. Simon are troubling, but they do not lead the Court to
Martinrea’s ultimate conclusion that Mr. Simon’s conclusion of identical awards under
alternative claims makes “his entire report . . . speculative, unhelpful, and inadmissible[.]” Dkt.
No. 190 at 10 (emphasis added). As Gonzalez points out, Mr. Simon is not a lawyer and his
testimony should not be excluded in full because he does not understand the difference between
breach of contract and promissory estoppel claims. See Dkt. No. 212 at 13. More critically, the
fact that he does not understand the difference between promissory estoppel and breach of
contract does not automatically render his methodology as flawed, speculative, unhelpful, and
inadmissible as Martinrea asserts. See Dkt. No. 190 at 11 (citing MicroStrategy Inc. v. Bus.
Objects, S.A., 429 F.3d 1344, 1353 (Fed. Cir. 2005)).
Mr. Simon’s report does “consider relevant factors in its damages analysis,” and does
“link . . . instance[s] of misconduct to a specific amount of damages.” Id. The problem is that Mr.
Simon simply conflates the damages together. Dkt. No. 195-1 at 9. Gonzalez acknowledges that
“it cannot recover the same damages under both legal theories[.]” Dkt. No. 212 at 11. As such,
this Court will separate the improperly labeled damages for the parties and explain what Mr.
Simon may and may not testify to with respect to damages. See infra, Part IV, pp. 26-27.
b. Part II of Mr. Simon’s Report will be allowed.
Next, Martinrea attacks Mr. Simon’s report by noting that “Mr. Simon’s unprecedented
‘costs plus profit’ methodology and his resulting opinions are entirely speculative and will not
help the jury in identifying any ‘additional expenses’ for purposes of any theoretically

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recoverable damage awards.” Dkt. No. 190 at 12. Martinrea takes a “whack-a-mole” approach in
attempting to eliminate Mr. Simon’s testimony by labeling his methodology as the “cost plus
profit” methodology, a “total cost” methodology, and a “lost profits damage claim, at best.” By
the time of the Daubert hearing, Martinrea only labeled the methodology as a “total cost”
methodology that must be excluded. The Court disagrees.
Gonzalez asserts that “Mr. Simon did not actually use the total cost methodology.” Dkt.
No. 227 at 11. Instead, Gonzalez argues that it has “maintained extensive financial
documentation, produced those documents to Martinrea, and is able to prove its damages.” Dkt.
No. 227 at 12. The crux of the dispute seems to be that Martinrea is trying to force the total cost
methodology on Gonzalez, arguing that Mr. Simon’s damages model simply “totaled up all
costs, added a profit, and subtracted some of the payments made.” Dkt. No. 190 at 12 (emphasis
in original). Martinrea also argues that Mr. Simon’s opinion is speculative because it includes
“undisputed costs for which Gonzalez was responsible, not Martinrea, yet Mr. Simon includes
them in his damages theory.” Dkt. No. 219 at 7.
Gonzalez strongly emphasizes that “the costs incurred on the Martinrea job as identified
by Mr. Simon are all ‘actual cost’ taken from the company books and records – these amounts
are not estimates or projections.” Dkt. No. 212 at 16. Moreover, Gonzalez firmly pushes back on
Martinrea’s contention that Mr. Simon’s damages model includes expenses for which Gonzalez
was responsible. Dkt. No. 227 at 13. Instead, Gonzalez contends that Martinrea disregards work
done by Mr. Simon, and is simply “mixing up financial accounting concepts.” Id.
Gonzalez argues that Mr. Simon actually only conducted a “reconciliation”—a sampling
methodology—in accordance with standard procedure for accountants conducting audits of
corporate books and records. Id.; see also Dkt. No. 212 at 17-18 (citing deposition testimony

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where Mr. Simon explains he conducted his sampling pursuant to AICPA rules by controlling for
any potential inaccuracy through a total reconciliation process). In so doing, Gonzalez asserts
that “rather than inspect each and every one of the 3,000-4,000 separate invoices that were
summarized into Gonzalez’s standard accounting records and financial reports, Mr. Simon
utilized a typical CPA tool whereby he examined a substantial portion of the universe of such
invoices to ensure the accuracy of the amounts shown in the company’s financial statements.”
Dkt. No. 227 at 14. As a result, Gonzalez argues that Mr. Simon “found that over 90 percent of
the costs incurred by Gonzalez on the Martinrea job were additional costs necessitated by
Martinrea’s failure.” Id. (citations omitted) (emphasis in original).
Martinrea ridicules and disagrees with Mr. Simon’s reconciliation process. See Dkt. No.
190 at 17-18; Dkt. No. 219 at 7. Rather than acknowledging the reconciliation process, Martinrea
argues that “Mr. Simon simply chose to ignore [] records.” Dkt. No. 219 at 6. In fact, Martinrea
does not believe this reconciliation took place, though Mr. Simon and Martinrea assert they are
contained in the Doeren Mayhew supporting work papers. Mr. Simon brought his voluminous
work papers to the Daubert hearing and explained how he used accounting principles to go
through thousands of invoices, accounting records, and other financial and corporate documents
of Gonzalez to reach his conclusion. Martinrea’s criticism simply goes to the credibility of the
testimony as opposed to the reliability because the criticism does not challenge the underlying
methods of the reconciliation process used by Mr. Simon. The criticism simply attacks the
results. Such concerns are best be served not by exclusion, but by “vigorous cross-examination,
presentation of contrary evidence, and careful instruction on the burden of proof[.]” Conrail v.
Grand Trunk W. R.R. Co., 963 F. Supp.2d 722, 733 (citation omitted).

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Lastly, Martinrea argues that the Court should exclude the “lost-profits” “mark-up”
damages of $907,476 in Mr. Simon’s report. The Court will not deny the lost profit calculation
because “[u]nder Michigan law . . . damages calculations with a ‘reasonable basis of
computation’ [are sufficient] even though the results are ‘only approximate,’ Waskin Dev. Co. v.
Weyn, 369 Mich. 121, 119 N.W.2d 662, 665 (1963), and ‘speculative to some degree,’ Lorenz
Supply Co. v. Am. Standard, Inc., 100 Mich. App. 600, 300 N.W.2d 335, 340 (1980).”
Multimatic, Inc. v. Faurecia Interior Sys. USA, Inc., 358 F. App'x 643, 650-51 (6th Cir. 2009).
Here, Mr. Simon provided a reasoned, non-speculative basis for projecting the profits that
were lost in this case. Mr. Simon explained to the Court that he arrived at this figure because the
normal practice for Gonzalez was to mark-up anything they billed. Accordingly, he claims that
he took the original cost of the contract and then figured out the margin that Gonzalez would
have received on the project had the contract been completed—the intention of Gonzalez when
they billed the contract. Accordingly, the Court will permit these damages. See Multimatic, Inc.
v. Faurecia Interior Sys. USA, Inc., 358 F. App'x 643, 651 (6th Cir. 2009) (allowing lost-profits
award and saying the award was not unduly speculative because Mr. “Simon had a reasoned,
non-speculative basis for projecting profits” in that case); Joerger v. Gordon Food Serv., Inc.,
224 Mich. App. 167, 174, 568 N.W.2d 365, 369 (1997) (“Damages awarded in promissory
estoppel actions may include an award of lost profits, and out-of-pocket expenses incurred in
preparation for performance or in the performing of the work that was induced by the
promisor[.]”) (internal citations omitted). As such, the Court will permit the damages in Part II.
c. Parts III and IV will be precluded.
Lastly, Martinrea contends that Parts III and IV of Mr. Simon’s report “must be stricken
as unhelpful and speculative because the damage model assumes that the jury can award at trial

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any amount at all for the ‘lost use’ of funds, when . . . no one did or could have contemplated
them at the time the parties executed their agreement.” Dkt. No. 190 at 25 (emphasis in original).
Ultimately, the Court agrees with Martinrea on this point.
Martinrea contends that “the jury cannot award these types of damages because they are
not recoverable under Michigan law.” Dkt. No. 190 at 25. “[U]nder Michigan law interest may
be awarded to compensate an aggrieved party for the lost use of money.” R.D. Mgmt. Corp. v.
Philadelphia Indem. Ins., 302 F. Supp. 2d 728, 732 (E.D. Mich. 2004); see also id. at 732-33
(quoting Gordon Sel–Way, Inc. v. Spence Bros., Inc., 438 Mich. 488, 399, 475 N.W.2d 704, 710
(1991) to note that “Michigan law recognizes the notion that common-law interest may be
awarded to a claimant as ‘a legitimate element of damages used to compensate the prevailing
party for the lost use of its funds.’”). But cf. Manley, Bennett, and McDonald & Co. v. St. Paul
Fire & Marine Ins. Co., 821 F.Supp. 1225 (E.D. Mich. 1993) (awarding pre-filing interest
because “[w]ithout adequate interest, plaintiff cannot be made whole, and defendant would be
unjustly enriched.”); John Hancock Fin. Servs., Inc. v. Old Kent Bank, 185 F. Supp. 2d 771, 780
(E.D. Mich. 2002) (quoting Gordon Sel–Way, Inc., 438 Mich. at 499, 475 N.W.2d 704 to note
that “the pivotal factor in awarding [pre-filing] interest is whether it is necessary to allow full
compensation.”) aff'd, 346 F.3d 727 (6th Cir. 2003).2 This Court is hesitant to permit over $8
million in consequential damages for the lost-use of funds when pre-filing interest is generally
the element of damages to compensate for the lost use of funds. See, e.g., Jones v. Jackson Nat.
2

Martinrea places a heavy emphasis on Firwood Mfg. Co., Inc. v. General Tire, Inc., 96 F.3d 163 (6th Cir. 1996),
arguing that “the Sixth Circuit held that so-called liquidity damages concerning ‘the lost use of money’ caused by
breach of contract are never recoverable by a Seller, under the UCC[.]” Dkt. No. 190 at 27 (emphasis added).
However, as mentioned in this Court’s Summary Judgment Order, this case would not fall under the Uniform
Commercial Code because the parties essentially provided services—robots and equipment—to each other, but did
not sell any goods. See Dkt. No. 118 at 13 n.3 (citing Wells v. 10-X Mfg. Co., 609 F.2d 248, 254 (6th Cir. 1979) for
the following proposition: “[T]he fact that the party supplying a service does so in conjunction with the delivery of
goods does not necessarily mean that the transaction comes within the [Uniform Commercial] Code. . . . Irrespective
of the fact that performance under the terms of the contract would have resulted in the special manufacture of goods,
the contract was one for the rendition of services.”).

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Life Ins. Co., 819 F. Supp. 1382, 1383 (W.D. Mich. 1993) (noting that the purpose of the
common law interest as an element of damages is “to provide full compensation.”).
This is particularly so when Martinrea argues that “[e]ven if such damages were
theoretically recoverable . . . Mr. Simon admitted that no one did or could have contemplated the
so-called ‘liquidity issues’ at the time the parties entered into their contract in October of 2010.”
Dkt. No. 190 at 27 (citation omitted). Essentially, Martinrea asserts that the consequential
damages in these sections are not foreseeable. Indeed, it is important to note that “[u]nder
Michigan law, the damages recoverable for a breach of contract ‘are those damages that arise
naturally from the breach or which can reasonably be said to have been in contemplation of the
parties at the time the contract was made.’” Lawrence v. Will Darrah & Assoc., Inc., 445 Mich.
1, 13, 516 N.W.2d 43 (1994) (emphasis in original) (citation omitted). Thus, Gonzalez’s
argument falls apart because it argues that these damages were both foreseeable and reasonable.
The argument that these damages were foreseeable is tenuous, and the notion that these
damages were reasonably in contemplation at the time the contract was made is simply
unavailing. The problem with Gonzalez’s position is encapsulated in the following position that
it takes: “Gonzalez is merely seeking (entirely foreseeable) damages stemming from over $6.5
million in unpaid costs sufficient to bring it to the position it would have been in but-for
Martinrea’s conduct.” Dkt. No. 212 at 21 n.3. However, the reasonable damages “but for”
Martinrea’s conduct are the $6.5 million dollars in unpaid costs; not an additional $8 million in
damages stemming from the unpaid costs.
Gonzalez tries to explain that the “liquidity damages” were reasonable and foreseeable
because they “began during the parties’ relationship,” Dkt. No. 212 at 22, but this is
unpersuasive. See Globe Ref. Co. v. Landa Cotton Oil Co., 190 U.S. 540, 544, 23 S. Ct. 754, 47

-24-

L. Ed. 1171 (1903) (“The suggestion . . . that perhaps notice after the contract was made and
before breach would be enough, is not accepted[.]”) (citations omitted); Contempo Metal
Furniture Co. of California v. E. Texas Motor Freight Lines, Inc., 661 F.2d 761, 765 (9th Cir.
1981) (“Because the carrier is taking a risk that events appreciably beyond its control may
prevent it from performing the contract, the carrier is entitled to notice of any unforeseeable
consequences of nonperformance so that the carrier can protect itself. Notice after the contract is
made does not afford opportunity for this self-protection.”) (internal citations omitted).
The Court simply finds that Martinrea cannot be held liable for the consequential
damages Gonzalez seeks. Instead, the damages for lost use of funds will be limited to the
prejudgment interest for both the breach of contract and promissory estoppel claims. See, e.g.,
Jones v. Jackson Nat. Life Ins. Co., 819 F. Supp. 1382, 1383 (W.D. Mich. 1993) (citing
Michigan case law to state that “Michigan courts have included interest as an element of
damages as a matter of right where the amount claimed is liquidated[,]” and noting that where
the principal amount in controversy for the breach of contract has been set by contract from the
outset, interest is generally allowed from the date when the claim accrued or, in other words,
“from the date compensation would have been due had it been paid voluntarily.” ); W. v. AK
Steel Corp. Ret. Accumulation Pension Plan, No. 1:02-CV-0001, 2005 WL 3465637, at *7 (S.D.
Ohio Dec. 19, 2005) (citing Rybarczyk v. TRW, Inc., 235 F.3d 975, 985 (6th Cir. 2000) to state
that “[i]t is well-settled that the court may award prejudgment interest in its discretion, and in
accordance with general equitable principles” and to note that prejudgment interest “is not
awarded for punitive purposes, but to compensate for the lost time value of money.”), aff'd sub
nom. W. v. AK Steel Corp., 484 F.3d 395 (6th Cir. 2007). Thus, the Court will preclude testimony
about Parts III and IV, and GRANT in part and DENY in part this final Motion in Limine [190].

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IV. CONCLUSION
These are the rulings of the Court. The Court emphasizes, however, that“[a] ruling on a
motion in limine is no more than a preliminary, or advisory, opinion that falls entirely within the
discretion of the district court . . . the district court may change its ruling at trial for whatever
reason it deems appropriate,” and “where sufficient facts have developed to warrant the change.”
United States v. Yannott, 42 F.3d 999, 1007 (6th Cir. 1994) (citing United States v. Luce, 713
F.2d 1236, 1239 (6th Cir. 1983) aff'd, 469 U.S. 38, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984).
That being said, for the reasons discussed above, the Court HEREBY RESOLVES
Evidentiary Issues Number One and Two in Gonzalez’s Motion in Limine [184] by incorporating
the stipulation between the parties that is included in this Opinion and Order.
Additionally, the Court GRANTS in part and DENIES in part Martinrea’s Motion to
Exclude Plaintiff’s Proposed Expert Clark J. Radcliffe’s Opinion Testimony [186]. Professor
Radcliffe will be able to testify generally about the engineering method, engineering principles,
engineering processes, engineering terminology, and assembly lines. However, testimony about
the process generally used by Gonzalez and testimony that Professor Radcliffe spoke to
Gonzalez personnel about the process used by Gonzalez will not be allowed at trial.
The Court also GRANTS in part and DENIES in part Martinrea’s Motion to Exclude
Plaintiff’s Proposed Expert Lawrence A. Simon’s Opinion Testimony [190]. The Court will
permit Mr. Simon to testify regarding the damages in Parts I and II of his report with the
qualification that he not conflate the damages. The Court will preclude Mr. Simon from
testifying regarding Parts III and IV of his report because prejudgment interest is the proper form
of damages as a matter of law. Therefore, this Court will permit testimony from Mr. Simon so
long as all exhibits and testimony reflect the following presumptions of a jury award:

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(1)

In the case that the jury finds Martinrea completely breached its contract,
Gonzalez will be entitled to (i) the “Recovery of Unpaid Invoices and
Unbilled Contract” section of Mr. Simon’s report for the unpaid invoices
(expectation damages), (ii) the “Recovery of Additional Project Costs –
After Free Issue Equipment” section of Mr. Simon’s report for not
supplying properly functioning equipment per the terms of the agreement
(consequential damages), and (iii) prejudgment interest as a matter of law.

(2)

In the case that the jury finds Martinrea did not breach its contract, the
jury would have to determine whether the elements of promissory estoppel
have been met. If the jury determines that the elements of promissory
estoppel have been met, then Gonzalez would be entitled in the alternative
to (i) the “Recovery of Additional Project Costs – After Free Issue
Equipment” section of Mr. Simon’s report for the alleged promise by
Martinrea that they would continue providing any additional costs
incurred by Gonzalez outside of the scope of the contract (reliance
damages), and (ii) prejudgment interest as a matter of law.

For visual reference, the breakdown of damages, based on Mr. Simon’s findings and use of
reliable accounting principles, would be as follows:
Breach of Contract

Promissory Estoppel

“Recovery of Unpaid Invoices and Unbilled Contract”
$1,065,928
“Recovery of Additional Project Costs –
After Free Issue Equipment”
$6,509,296

“Recovery of Additional Project Costs –
After Free Issue Equipment”
$6,509,296

“Total Damages”
$7,575,224 + Prejudgment Interest

“Total Damages”
$6,509,296 + Prejudgment Interest

Lastly, the Court DENIES Martinrea’s Motion to Exclude Plaintiff’s Proposed Expert
Michael J. Tracy’s Opinion Testimony [188].
IT IS SO ORDERED.
Dated: August 13, 2015
/s/Gershwin A Drain
HON. GERSHWIN A. DRAIN
United States District Court Judge

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