MCI Communications Services, Inc. et al v. Maverick Cutting and Breaking LLC
Filing
63
MEMORANDUM OPINION AND ORDER granting in part and denying in part 36 Motion for Summary Judgment; granting in part and denying in part 43 Motion to Exclude Expert Testimony of Steven M. Hamilton; granting in part and denying in part 54 Motion to Exclude Expert Testimony and Rental Cost Documentation.(Written Opinion) Signed by Chief Judge John R. Tunheim on 3/12/2019. (JMK)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
MCI COMMUNICATIONS, INC. and
MCIMETRO ACCESS TRANSMISSION
SERVICES LLC,
Plaintiffs,
Civil No. 17-1117 (JRT/SER)
MEMORANDUM OPINION
AND ORDER
v.
MAVERICK CUTTING AND
BREAKING LLC,
Defendant.
James J. Proszek, HALL, ESTILL, HARDWICK, GABLE, GOLDEN, &
NELSON, P.C., 320 South Boston Avenue, Suite 200, Tulsa, OK 74103,
and Seth J. S. Leventhal, LEVENTHAL PLLC, 527 Marquette Avenue
South, #2100, Minneapolis, MN 55402, for plaintiffs.
Rachel B. Beauchamp, COUSINEAU, VAN BERGEN, MCNEE &
MALONE, P.A., 12800 Whitewater Drive, Suite 200, Minnetonka, MN
55353, for defendant.
Plaintiffs MCI Communications Services, Inc. and MCImetro Access Transmission
Services, LLC (collectively “MCI”) bring an action for trespass, negligence, and statutory
liability as an excavator against Maverick Cutting and Breaking LLC (“Maverick”), who
severed two of MCI’s fiber-optic telecommunications cables while performing concrete
saw cutting at an intersection. MCI seeks damages for repair costs and loss of use.
Maverick now moves for summary judgment on all of MCI’s claims and on lossof-use damages. Maverick also seeks to exclude portions of MCI expert Ron Peterson’s
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testimony, all of MCI expert Peter Tooley’s testimony, and evidence of the rental cost of
substitute cables. MCI seeks to exclude Maverick expert Steven Hamilton’s testimony.
The Court will grant Maverick’s Motion for Summary Judgment in part and deny it
in part. The Court will find that MCI is not entitled to loss of use damages and that no
genuine disputes of material fact remain as to trespass or as to negligence based on
contractual duties or a saw cutter industry standard of care. However, the Court will find
that a genuine dispute of material fact remains as to whether Maverick was engaged in
excavation under Minnesota statute and the common law. As such, a jury must determine
whether Maverick is liable as an excavator under Minnesota statute or in negligence based
on an excavator industry standard of care.
The Court will grant Maverick’s Motion in Limine in part and deny it in part. The
Court will preclude Peterson’s testimony on contract interpretation, what Brooks did when
installing the Cables, and saw cutter industry standards of care. The Court will also
preclude Tooley’s testimony and evidence of rental cost of substitute cables because both
are irrelevant given the Court’s ruling on loss-of-use damages.
The Court will grant MCI’s Motion in Limine in part and deny it in part. The Court
will preclude Hamilton from testifying as to saw cutter industry standards of care.
BACKGROUND
I.
FACTUAL BACKGROUND
In the spring of 2015, the City of St. Paul (the “City”) began construction on a public
works project (the “Project”) to maintain and improve several bridges.
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The Players
Brent Christensen, a civil engineer, was the City’s manager of the Project. (See
First Aff. of Rachel Beauchamp (“1st Beauchamp Aff.”) ¶ 3, Ex. A (“Christensen Aff.”) ¶¶
1-2, 5, July 5, 2018, Docket No. 38.) The City hired TKDA to design the Project and
provide professional engineering services for the Project. (Id. ¶ 6.) TKDA was responsible
for compiling information regarding utilities that might be impacted by the Project and
coordinating solutions to identified conflicts. (1st Beauchamp Aff. ¶ 4, Ex. B (“Quanbeck
Aff.”) ¶¶ 1, 3.)
Kraemer North America, LLC, (“Kraemer”) was the general contractor on the
Project. (1st Beauchamp Aff. ¶ 8, Ex. F (“Rosenberry Dep.”) at 14-15.) Kraemer hired
Bolander & Sons (“Bolander”) for excavating and demolition, which included pavement
removal and grading for new roadway pavements. (Beauchamp Aff. ¶ 9, Ex. G (“Caroon
Dep.”) at 8.)
Bolander hired Maverick via oral contract to perform saw cutting for the project.
(Id. at 6.) Bolander told Maverick where to cut and how deep to cut. (Id.) Maverick
performs about 90% of Bolander’s concrete saw cutting work. (Id. at 5.) According to
Bolander, Maverick’s work involved only saw cutting, did not involve pavement removal
or grading, and did not involve excavating. (Id. at 8.) Maverick asserts that its only job
was to cut where Bolander directed and that it did not deal with utilities or their location.
(1st Beauchamp Aff. ¶ 13, Ex. K (“Lewis Dep.”) at 4, 11.)
MCI is a telecommunications company that owns and operates underground fiber
optic telecommunications cables in and under various streets in the City. (Compl. ¶¶ 9-10,
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Apr. 11, 2017, Docket No. 1.) 1 MCI owned the Cables that Maverick cut. Brooks Fiber
Communications (“Brooks”), MCI’s predecessor-in-interest, originally installed the
Cables in 1997 or 1998. (See Decl. of James J. Proszek (“Proszek Decl.”) ¶ 4, Ex. 1 (“AsBuilts”), July 26, 2018, Docket No. 48; Proszek Decl. ¶ 5, Ex. 2 (“1st RFA”) at 10.)
The Preparations
On April 26, 2013, TKDA sent a Gopher State One Call (“GSOC”) ticket requesting
utility maps in the Project area. (Quanbeck Aff. ¶ 5.) MCI produced an internal document
indicating “Action Taken” in response to TKDA’s request related to the intersection of
Kellogg and Wabasha (the “Intersection”) on May 1, 2013. (1st Beauchamp Aff. ¶ 5, Ex.
C; Proszek Decl. ¶ 10, Ex. 7 at 7-9.) MCI alleges that it sent “as-builts” 2 of the Intersection
but produced no records to show that TKDA received them. (Proszek Decl. ¶ 10, Ex. 7 at
7-9; see also 1st Beauchamp Aff. ¶ 6, Ex. D (“Wilfong Dep.”) at 42-43.) TKDA has no
record of receiving anything and the GSOC ticket of utility owner responses shows MCI
had not responded as of May 20, 2013. (Quanbeck Aff. ¶ 6.)
On January 16, 2014, TKDA invited MCI to attend a utility coordination meeting.
(Id. ¶ 9.) The invitation referenced the Project area and attached drawings, which showed
the Intersection. (Id.) MCI did not attend the meeting. (Id. ¶ 10.)
1
Counsel has stipulated that MCI and Verizon may be used interchangeably to refer to the
plaintiffs in this matter. (1st Beauchamp Aff. ¶ 1.)
2
As-builts are “schematic drawings of [a utility’s] fiber optic line, where it lies in regard
to the surrounding street areas.” (1st Beauchamp Aff. ¶ 11, Ex. I at 3.)
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On March 25, 2015, Bolander submitted a GSOC request for a “meet and locate”
on March 31, 2015, for “road construction” at the Intersection. (1st Beauchamp Aff. ¶ 10,
Ex. H at 3.) The request expired April 14, 2015, at 9:00 a.m. and the duration of the work
was listed as 6 months. (Id.) MCI locator Vince Johnson performed the meet and locate,
marking the approximate horizontal locations of MCI’s underground cables.
(1st
Beauchamp Aff. ¶ 11, Ex. I (“Johnson Dep.”) at 8.)
Johnson testified that MCI has as-builts available to internal locators that they can
refer to if they “have a question about where the line might possibly run. . . .” (Id. at 3-4.)
He testified that as-builts might give a depth location or estimate “if the depth features [of
the cables] are unusual. . . .” (Id. at 3.) But Johnson testified that he typically only consults
as-builts when locating in an area with which he is unfamiliar. (Id. at 5.) He further
testified that the “receiver” used by locators to find the cables can give you a “very, very
general idea of depth.” (Id. at 6.) The depth measurement setting must be separately turned
on, but taking such a measurement does not cost anything. (Id.) Johnson testified that
locators do not usually give depth readings to contractors because they do not want
contractors to rely on them. (Id.) There is no evidence that Maverick or Bolander asked
Johnson for depth information or that Johnson was required to mark depth under Minnesota
law. See Minn. Stat. § 216D.04, subd. 3 (2018).
MCI asserts that the contracts between the City and Kraemer and between Kraemer
and Bolander required that all subcontractors comply with all the requirements of the City’s
specifications and drawings for the Project. (Proszek Decl. ¶ 12, Ex. 9 at 7; Proszek Decl.
¶ 13, Ex. 10 ¶¶ 2-3; Proszek Decl. ¶ 14, Ex. 11 §§ III(A)-(B), 1507.) MCI notes that the
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City’s specifications warn that subsurface utility information is of the lowest possible level;
thus, information concerning type and location of utilities shown in project drawings are
not guaranteed to be accurate or all-inclusive. (Proszek Decl. ¶ 14, Ex. 11 § 1507.)
The Incident
On April 14, 2015, Maverick performed saw cutting for Bolander at the Intersection.
(Caroon Dep. at 5.) Maverick saw cut with mechanized equipment over locator marks in
the concrete and severed the Cables. (See id. at 8; 1st Beauchamp Aff. ¶ 12, Ex. J (“Incident
Report”) at 1.) The Cables were inside a four inch pipe, the top of which was seven inches
down in the 13-inch concrete. (Incident Report at 1-2.) The area Maverick was saw cutting
when it severed the Cables consisted of concrete pavement on top of soil. (Proszek Decl.
¶ 8, Ex. 5 at 12.)
Maverick had no knowledge of the Cables, was “there at the sole discretion of
[Bolander],” and cut what Bolander told it to cut. (Lewis Dep. at 4.) Maverick had not
been in contact with MCI, the City, or Kraemer. (Id. at 5.) Maverick never received plans
or as-builts related to the Intersection. (Id. at 9.) Maverick did nothing to determine the
location of the Cables and does not provide any training to its employees as to what
precautions they should take regarding underground utilities. (Id. at 4, 8, 11.)
The Aftermath
The day after Maverick severed the Cables, a meeting was held with the City,
TKDA, Bolander, and representatives of MCI. (Christensen Aff. ¶ 18 & Ex. C.) They
discussed cable depth. (Id. ¶ 18.) MCI was expected to, and did, mark the rest of its cables
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for depth. (Id.) MCI also had to relocate conflicting cables at its own cost. (Id. ¶ 19; 1st
Beauchamp Aff. ¶ 7, Ex. E (“Bonczkowski Dep.”) at 9.)
1. Cable Repairs
The Cables were repaired over approximately eight and a half hours.
(1st
Beauchamp Aff. ¶ 14, Ex. L (“Damages Calculation”) at 1.) Plaintiffs seek $52,024.68 in
damages for the cost of repairing the Cables. (Id. at 5.)
2. Loss-of-Use Damages
While the Cables were being repaired, MCI rerouted traffic to spare capacity in its
network on its own established cables. (Wilfong Dep. at 24-26, 28-29, 33.) Nevertheless,
Plaintiffs seek $859,326.59 in loss of use damages based on how much it would have cost
to route capacity to a third party and return it back to the network. (Damages Calculation
at 1-5.) MCI did not pay third parties but rather used “dedicated, spare restoration capacity
on other cables in MCI’s network which MCI reserves for use in emergencies and does not
use in the ordinary course of its business. . . .” (1st Beauchamp Aff. ¶ 16, Ex. N at 2-3.)
MCI’s extra capacity is not located on a separate set of cables but rather on cables
that MCI uses in its ordinary course of business, just not to their full capacity. (2d Aff. of
Rachel Beauchamp ¶ 1, Ex. V at 48-49, Aug. 9, 2018, Docket No. 52-1.) Occasionally,
MCI rolls traffic over to this spare capacity when it has to perform a “hot cut,” which
involves “splic[ing] in another piece of cable to extend the length of [a] cable. . . .” (Id. at
31-32.) MCI provided damage calculations for the total capacity that the severed Cables
were capable of carrying but did not distinguish between “active” and “standby” capacity.
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(Id. at 58-59.) MCI has spent “a lot of money to make sure that [its] network is resilient”
and to ensure that it has the capacity to move traffic over to other lines in emergencies.
(Wilfong Dep. at 51-52.)
Disputed Facts
1. Standard Cable Depth
Brent Christensen, manager of the Project, attests that, in his training and experience
in
civil
engineering
and
project
management,
he
has
never
experienced
telecommunications utilities placed inside poured concrete sections of road pavements.
(Christensen Aff. ¶ 21.) Ronald Quanbeck, a Senior Registered Engineer with TKDA,
attested that, in his training and experience, utility lines are expected to be below the
pavement. (Quanbeck Aff. ¶ 14.) Aaron Rosenberry, a corporate representative of
Kraemer North America, testified that Kraemer was surprised to learn about MCI’s utility
running seven inches down from the top of the roadway through concrete, and that he had
never seen that done before in his 32 years of experience. (Rosenberry Dep. at 7, 48-49.)
He also testified that no one had told Kraemer the depth of the Cables. (Id. at 49-50.) John
Caroon, Project Manager and Estimator for Bolander, testified that no one ever provided
Bolander with an as-built showing that the cable was located seven inches down within the
concrete nor did anyone tell Bolander that there was a cable running directly through the
concrete. (Caroon Dep. at 2, 9.) He also testified that the industry standard depth for
telecommunications cables is 36 inches. (Id. at 10.) Jamen Lewis, Maverick’s 30(b)(6)
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representative, testified that Maverick had no knowledge of the cables and performed work
at the sole discretion of Bolander, cutting what Bolander directed it to. (Lewis Dep. at 4.)
Vincent Johnson, a Senior MCI Technician, testified that the depth of cables can
vary “significantly,” but the ideal depth is three to four feet. (Johnson Dep. at 3.) He said
that he has encountered cables running less than one foot below ground and through
concrete “at least 30 times.” (Id. at 15.) He has visited approximately 2000 sites per year.
(Id.) Ron Peterson, MCI’s expert witness, agreed that MCI’s cables were not placed at a
common standard depth or an industry standard depth, stating that 24 or 36 inches are
common standards. (1st Beauchamp Aff. ¶ 19, Ex. Q (“Peterson Dep.”) at 1, 16.)
Neither the City nor MCI has located a permit or other written authority that would
allow MCI’s cables to run at seven inches below pavement surface through concrete.
(Christensen Aff. ¶ 12; Wilfong Dep. at 48-50; Bonczkowski Dep. at 8-9.) Nevertheless,
MCI asserts that cities generally have inspectors overseeing installation and would have
ensured that Brooks installed the Cables in a manner consistent with the construction
drawings it submitted. (Proszek Decl. ¶ 6, Ex. 3 (“Bonczkowski Decl.”) ¶ 7.) As such,
MCI argues that the Cables could not have been installed as they were unless the City had
approved such an installation. (Id. ¶ 8.) Brooks’s As-Builts for the Cables show that they
were encased in steel, 12 inches down, and encased in concrete. (As-Builts at 3.)
2. Possession of the Installation Area
MCI alleges that it had a permit from the City, which gave it undisturbed possession
of the area in which it installed the cables that Maverick damaged. (1st Beauchamp Aff.
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¶ 17, Ex. O at 8.) MCI has not found the referenced permit but argues that ample
circumstantial evidence supports its existence. It alleges that, as part of the installation
process, Brooks would have obtained a permit from the city that would have required
Brooks to submit proposed construction drawings to the City. (See 1st RFA at 13.) MCI
points to affidavits and depositions by several employees attesting that, based on their
experience, “it is highly unlikely” that Brooks could have installed the Cables without
getting a permit from the City. (Proszek Decl. ¶¶ 7-9, Ex. 3 ¶ 5, Ex. 4 ¶ 5, Ex. 5 at 5, Ex.
6 at 10.) MCI produced a permit and drawings for Brooks’ installation of underground
cables for another part of the same project. (Proszek Decl. ¶ 7, Ex. 4 ¶¶ 9-11.)
Christensen attests that the City “is the local authority that provides legal authority
for utilities to run and operate their lines underground within the City of St. Paul right-ofway.” (Christensen Aff. ¶ 8.) He attests that, when one of the City’s construction projects
conflicts with these lines, “the City reserves the right to require those utility owners with
conflicting lines to relocate their lines at their own expense.” (Id. ¶ 9.)
Stephen Bonczkowski, an MCI employee testifying on behalf of MCI, also testified
that the City was the property or right-of-way owner. (Bonczkowski Dep. at 2, 16.) He is
“the designated individual . . . capable of giving testimony about installation, ownership
and maintenance and rights of use of the telecommunications cables” in this case. (Id. at
2.) Bonczkowski also testified consistently with Christensen that, if the City needed to dig
up the street in an area where MCI had cables, MCI would have to move the cables at its
own cost. (Id. at 9.) But Bonczkowski attested that “it is highly unlikely” that Brooks
could have installed the Cables without a permit. (Bonczkowski Decl. ¶ 5.)
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II.
EXPERT TESTIMONY
MCI’s Expert: Ron Peterson
MCI’s proffered Expert, Ron Peterson, gave the following relevant opinions:
4. Maverick was performing excavation activities as defined in
Minnesota State Law Chapter 216D. Any point at which the
blade moved dirt would constitute excavation under the law.
Pictures provided clearly show dirt under the concrete.
Because concrete depths vary on sites, there is little doubt that
the blade was moving dirt at points during the operation. . . .
6. Maverick should have utilized safe practices to prevent
damage to MCI’s fiber optic cables. This would include
exposing the accurately marked lines by safe and acceptable
means prior to crossing the line. This could have easily been
accomplished by chipping away the concrete beginning at the
edge of the tolerance zone and working toward the marks. This
is a commonly used practice to expose utility lines under
concrete.
7. Maverick could and should have utilized GPR [Ground
Penetrating Radar] to check for obstructions along the
proposed path of the saw cut. This is an industry best practice
and would have identified the embedment that was the 4" pipe
at the base of the concrete. The presence of the marks directly
over the location would have been a further indicator that the
MCI lines were there. . . .
9. Bolander and Maverick were required to comply with the
provisions of the contract between Kraemer and the City as
well as the contract between Kraemer and Bolander. These
contracts require the contractor and their subcontractors to also
follow all laws.
10. Bolander’s Project Manager John Caroon, had no
understanding of what ASCE 38-02 was and no idea what
Quality Level D indicated on the plans and in the contract
documents. QL D is the least dependable and least accurate
level of subsurface utility depiction on plans. This means that
utility locations on plans should not be relied upon and further
backs the requirement that utility locations must be verified.
11. Bolander and Maverick either ignored or didn’t understand
statements on the project plans. In numerous locations, the
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plans specify that utility depictions are of a quality level D, that
the accuracy of the plans was not guaranteed and that the
contractor must verify the exact locations of utility lines.
12. Bolander and Maverick also either ignored or didn’t
understand the same statements regarding quality level D
which can be found in the contract documents.
13. Bolander and Maverick should have been alerted by the
presence of the Brooks Manhole Cover and the marks
extending from it into the dig location. The fact that no utility
lines are shown on the plans at this location should have given
clear indication that the MCI fiber optic cables were present
and caused them to investigate further prior to cutting the
pavement directly across the marks.
14. Regardless of any direction provided by Bolander, Maverick
had a responsibility to follow safe practices and industry
standards to safely perform their work. . . .
16. Brooks followed industry standards and practices when it
placed the fiber optic cables along Kellogg Blvd. When they
were forced to place the line in a shallow location, they encased
the cables in a steel pipe and surrounded it with concrete. This
is a commonly used and accepted practice in the industry.
17. Maverick’s cutting technician was cutting unreinforced
concrete at the location of the damage. This technician should
have known when the saw blade struck the steel pipe. Along
with the marks that were present, this should have alerted him
to the presence of the pipe. He should have stopped all work,
notified Bolander and investigated the issue.
18. I have seen no evidence of a written contract between Bolander
and Maverick. A contract would have set forth the
responsibilities of both parties for the work being performed
and eliminated any gaps in responsibility. The apparent lack
of a contract created lapses that contributed to this damage as
stated above.
(1st Beauchamp Aff. ¶ 18, Ex. P (“Peterson Report”) at 6-9.)
Peterson also testified that it was “[his] feeling that [Maverick] should have received
the [project plans], because that’s what [he] think[s] a competent subcontractor would do.”
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(Peterson Dep. at 17.) But Peterson’s opinion was based purely on what he would do and
on his opinion of the most “competent” or “safe” way to do business as a saw cutter. (Id.
at 18.) He did not know what percentage of saw cutters in Minnesota – or even across the
country – review complete project plans, specifications, and maps before performing each
job. (Id.) When asked about the number of pages that such documents contained for the
Project in question, Peterson acknowledged that “[i]t was huge.” (Id.)
Peterson acknowledged that he had no expertise in contract interpretation other than
the contracts he had been directly involved with and signed. (Id. at 19.)
Peterson testified that industry standards of care and industry best practices are both
“what’s going on, what actually happens in industry, what shouldn’t happen in the
industry.” (Id. at 12.) He testified that industry best practices are practices that “all parties
agree to be a good practice” and that they must “be prevalent in the industry.” (Id.) He
also testified that industry standards of care “are consistent,” but that how they apply
“within the laws within the states changes how you comply with the standard.” (Id. at 11.)
Peterson referenced two publications by the Concrete Sawing and Drilling
Association (“CSDA”). (Id. at 11-12; 1st Beauchamp Aff. ¶¶ 20-21, Exs. R-S.) Both are
entitled “Best Practice.” (1st Beauchamp Aff. ¶¶ 20-21, Exs. R-S.) CSDA BP-007 provides
“an overview and methodology for scanning concrete with” GPR. (1st Beauchamp Aff. ¶
20, Ex. R (“BP-007”) at 1.) CSDA BP-017 provides “an overview and methodology for
properly marking out embedments found with” GPR. (1st Beauchamp Aff. ¶ 21, Ex. S
(“BP-017”) at 1.) But neither publication specifically asserts that use of GPR is industry
standard or best practice, they merely describe how to use it. (See generally BP-007; BP- 13 -
017.) Peterson acknowledged that neither BP-007 nor BP-017 states that it is an industry
standard or best practice for a saw cutter to use GPR before beginning work. (Peterson
Dep. at 20.) He also acknowledged that he did not know what percentage of excavators in
Minnesota use GPR before asking for concrete saw cutting to be performed. (Id. at 13.)
Furthermore, Peterson testified that he had not talked to any Minnesota saw cutting
companies about their understanding of standard practices in Minnesota. (Id. at 15.)
Peterson opined that, based on CSDA F-102, saw cutters should take various actions
to locate embedments before cutting. (Id. at 21.) F-102 provides specifications for flat
sawing, (1st Beauchamp Aff. ¶ 22, Ex. T (“F-102”) at 1), but Peterson acknowledged that
it does not state what he opines, (Peterson Dep. at 21). He acknowledged that F-102 does
not reference GPR as one of the pieces of equipment used by saw cutters and does not say
that identifying embedments in concrete is the responsibility of the saw cutter. (Id.)
Indeed, F-102 puts the responsibility of determining whether there are utility lines in or
near the cutting area on the owner or contracting agency and states that the owner or
contracting agency is responsible for damages that may arise if it directs that an embedment
be intentionally cut. (Id. (citing F-102 at 2).)
Maverick’s Expert: Steven M. Hamilton
Maverick’s proffered expert, Steven M. Hamilton, is an electrical engineer licensed
in Minnesota with over 27 years of experience. (Decl. of James J. Proszek in Support of
Pl.’s MIL (“2d Proszek Decl.”) ¶ 3, Ex. 1 (“Hamilton Report”) at 3, July 20, 2018, Docket
No. 45.) In his report, he notes that he relies on his experience as a design engineer for the
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Green Line light rail project, which required “extensive coordination of utilities” and
“resolving utility conflicts. . . .” (Id.) He offers the following relevant opinions and
conclusions:
1. The fiber optic lines owned and operated by plaintiffs were
placed at an unusual depth of 7 inches. Standard minimum
depth for such lines would be 36 inches, well below the depth
of pavement.
2. The plaintiffs’ utility locator was unaware of street-embedded
fiber optic cables owned by plaintiffs and made no effort to
reveal that information, including:
a. No effort was made to review plaintiffs as-built plans in his
possession.
b. No effort to utilize the built-in functionality of his locator
equipment to estimate depth.
c. No effort to inspect the manhole for an understanding of the
fiber optic cable location or condition.
3. The City of St. Paul was unaware of the pavement-embedded
fiber optic cables owned by the plaintiffs.
4. TKDA was unaware of the pavement-embedded fiber optic
cables owned by the plaintiffs.
5. Bolander was unaware of the pavement-embedded fiber optic
cables owned by the plaintiffs.
6. The plaintiffs had ample opportunity to realize the unusual
depth of their fiber optic lines and provide warning or relocate
them as necessary.
7. The plaintiffs were invited to the Utility meeting held on
January 23, 2014[,] but chose not to attend.
8. The plaintiffs had as-built documentation that listed the depth
of the fiber optic cables at 12 inches, but the locators did not
refer to those plans since they knew the area well.
9. Per the City of St. Paul code, the plaintiffs would have been
obligated to “notify and work closely with the excavation
contractor” for installations less than 20 inches below the
surface.
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10. The plaintiffs’ utility locator used equipment that was capable
of providing an estimate of depth for their fiber optic cables but
chose not to use that function.
11. Bolander was the excavator under contract and did attend
utility coordination meetings and specific site meetings with
utility owners, including the plaintiffs.
12. Maverick's activities on the day of the incident were consistent
with the industry standard of care for saw cutting pavement and
do not require independent verification of utilities.
(Id. at 6-7.)
Hamilton also opined that Maverick was “not responsible for, or [a participant] of,
any utility coordination or locating efforts.” (Id. at 6.) He stated that the Project “was most
likely awarded to the lowest responsible bidder” so “sub-contractors like Bolander would
not plan for, or price their work anticipating chipping away concrete around utility marks
to identify exact locations of utilities that would not be expected within the pavement slab”
and would not direct Maverick to perform GPR prior to saw cutting. (Id.) Finally, he
observed that “[l]ow bid contract work is expected to follow industry standard of care, not
industry best practices.” (Id.)
III.
PROCEDURAL BACKGROUND
MCI filed this action on April 11, 2017, alleging trespass, negligence, and statutory
liability. (Compl.) MCI subsequently sought to add claims for breach of contract against
Maverick and to add claims for negligence and breach of contract against Bolander. (Mot.
to Amend Scheduling Order, Apr. 25, 2018, Docket No. 23.) The Magistrate Judge denied
MCI’s motion, MCI appealed, and the Court affirmed the Magistrate Judge’s decision.
(Order, Sept. 24, 2018, Docket No. 57.)
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Maverick now seeks summary judgment on loss of use damages and on all of MCI’s
claims. (Mot. for Summ. J., July 5, 2018, Docket No. 36.) Maverick also seeks to exclude
portions of MCI expert Ron Peterson’s testimony, all of MCI expert Peter Tooley’s
testimony, and evidence of the rental cost of substitute cables. (Def.’s MILs, Aug. 31,
2018, Docket No. 54.) MCI seeks to exclude the expert testimony of Maverick’s expert,
Steven M. Hamilton. (Pl.’s MIL, July 20, 2018, Docket No. 43.)
DISCUSSION
I.
MOTION FOR SUMMARY JUDGMENT
Standard of Review
Summary judgment is appropriate where there are no genuine issues of material fact
and the moving party can demonstrate that it is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(a). A fact is material if it might affect the outcome of the suit, and a
dispute is genuine if the evidence is such that it could lead a reasonable jury to return a
verdict for either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
A court considering a motion for summary judgment must view the facts in the light
most favorable to the nonmoving party and give that party the benefit of all reasonable
inferences to be drawn from those facts. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986). “[T]he court should not weigh the evidence, make
credibility determinations, or attempt to determine the truth of the matter.” Quick v.
Donaldson Co., 90 F.3d 1372, 1376-77 (8th Cir. 1996).
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Loss of Use Damages
Maverick seeks summary judgment on MCI’s loss-of-use damages because MCI
never incurred any. The Court will grant Maverick’s motion as to this issue because
Minnesota law precludes loss-of-use damages under the circumstances of this case.
Minnesota civil jury instructions state that a party may claim damages for “[l]oss of
use of the property during the time reasonably and necessarily required [to make the needed
repairs to] the property.” Damage to Property—Elements, 4A Minn. Prac., Jury Instr.
Guides--Civil CIVJIG 92.10 (“MN CIVJIG”) (6th ed.). Damages are designed to “fairly
and adequately compensate” the injured party, who must prove “the nature, extent,
duration, and consequences” of the injury. MN CIVJIG 90.10, 90.15. The injured party
must also mitigate any losses. MN CIVJIG 92.15; see also Mullen v. Otter Tail Power
Co., 153 N.W. 746, 748 (Minn. 1915) (“It was plainly the duty of plaintiff to do all he
could to make his loss as small as possible.”).
In the present action, MCI claims damages for the amount that it would have cost
to reroute MCI’s traffic to third-party cables. But there is no dispute that MCI did not
actually reroute traffic to third-party cables; rather, it used spare capacity on its own cables.
Minnesota law allows a party to recover loss-of-use damages. Hanson v. Hall, 279
N.W. 227, 230-31 (Minn. 1938). The reasonable rental value of substitute property may
be used to determine the amount of loss-of-use damages. See, e.g., Branch v. Boyer &
Gilfillan Motor Co., Inc., 142 N.W.2d 727, 728 (Minn. 1966); Barbarossa & Sons, Inc. v.
Iten Chevrolet, Inc., 265 N.W. 2d 655, 662-63 (Minn. 1978). Minnesota law also allows a
party to recover the reasonable rental value of substitute property even though the party
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does not rent the substitute property. See, e.g., id.; Jacobs v. Rosemount Dodge-Winnebago
South, 310 N.W.2d 71, 77 (Minn. 1981). Nevertheless, Minnesota law requires a plaintiff
to mitigate damages. Thus, a party cannot recover the reasonable rental value of substitute
property if the party does not rent such property because it is able to use its own property
to mitigate damages. In such a case, a plaintiff does not actually suffer loss of use because
it is able to use its own substitute property.
Several cases support this conclusion. In Barbarossa, a plaintiff purchased a new
truck to replace an old truck for construction work but did not receive it by the time
construction season began. 265 N.W. 2d at 657. The plaintiff purchased a different truck
several months later. Id. The plaintiff was able to complete all of its contracts using the
old truck, but the plaintiff sought to recover loss-of-use damages for 48 working hours that
it spent repairing the old truck. Id. at 658. The trial court awarded the plaintiff $1440 for
loss of 48 hours of working time at $30 per hour. Id. On appeal, the Minnesota Supreme
Court found that that, while the plaintiff had proven loss of use for 48 hours, there was no
evidence to support an award of $30 per hour. Id. at 662. Instead, the Minnesota Supreme
Court awarded $128, which was the rental value of a replacement truck for the hours during
which the truck was being repaired. Id. at 662-63. Importantly, the plaintiff was only
entitled to the rental value for a comparable truck during the 48 hours in which it could
prove loss of use, which were the 48 hours in which the old truck was being repaired. See
id. at 658, 663. The plaintiff was not awarded loss-of-use damages for the hours when the
old truck was functioning, even though plaintiff was without the new truck. See id.
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Barbarossa demonstrates the balance between Minnesota’s law on loss-of-use and
Minnesota’s law on mitigation. A plaintiff is only entitled to recover “the damages actually
incurred for the loss of use” of property. Id. at 662. Fair rental value of a substitute is one
way of measuring damages, particularly in cases like Barbarossa where rental of a
substitute would mitigate lost profits to some extent. But a plaintiff who mitigates damages
completely at no cost to himself or herself does not suffer loss-of-use damages.
Likewise, in Jacobs, the Minnesota Supreme Court found that plaintiffs were
entitled to loss-of-use damages when they were unable to take numerous planned trips as
a result of an unsafe and unusable motor home they had purchased from the defendant.
310 N.W.2d at 74, 78. The court sought to compensate plaintiffs, who were unable to
fulfill their need “to travel and enjoy their retirement, to take scenic trips before [one
plaintiff’s] eyesight failed completely, to winter in a warmer climate, to visit their children,
and to have confidence that their motorhome was safe and dependable for driving and
comfortable and convenient to use as a home while traveling.” Id. at 79. The court found
that the reasonable rental value of a substitute was a fair measure of assessing loss-of-use
damages that otherwise may not have an economic value. Id. at 78. However, had the
plaintiffs mitigated their damages by using a spare motor home they had at home, they
would not have suffered these damages and would not be entitled to compensation in the
form of the rental value of a substitute. 3
3
MCI argues that this interpretation of Minnesota law is contrary to Section 928 of the
Restatement (Second) of Torts, which allows for loss-of-use damages and which Minnesota cases
(footnote continued on next page)
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MCI argues that the Court should apply the “spare boat” line of cases and award
loss-of-use damages. In Brooklyn Eastern District Terminal v. United States, the Supreme
Court held that a shipowner may be able to recover loss-of-use damages measured by the
reasonable rental value of a substitute boat if it uses its own spare boat that is acquired and
maintained in reserve for emergency purposes. 287 U.S. 170, 175-76 (1932). However, if
the shipowner uses a substitute boat that is acquired and maintained for use in the general
course of business, it is not entitled to loss-of-use damages. Id. at 177. MCI argues that
its spare capacity is maintained solely for emergencies; thus, it is the equivalent of a spare
boat reserved for emergencies.
Courts have applied the spare boat rule to telecommunications cases with varying
results. 4 Ultimately, however, the outcome depends on state law. The Court is not aware
have adopted, because Comment B of Section 931 states that a plaintiff may recover the rental
value of a chattel even if the plaintiff uses his or her own substitute. Restatement (Second) of
Torts § 928; § 931, cmt. b. But, while Minnesota cases have explicitly adopted Section 928, they
have not explicitly adopted § 931. Indeed, cases citing Section 928 support the conclusion that
Minnesota has not adopted Section 931. For example, in In re Commodore Hotel Fire and
Explosion Cases, the Minnesota Supreme Court cited Section 928 and found that a hotel owner
could recover loss-of-use damages in the form of lost revenues to cover fixed unabatable costs
incurred during the period the property could not be used. 324 N.W.2d 245, 251 (Minn. 1982).
Had the court also intended to adopt Section 931, the plaintiff could have recovered the fair rental
value of a substitute hotel during that time and not just the costs incurred.
Furthermore, Comment C of Section 931 appears to qualify Comment B, clarifying that
when a plaintiff uses his or her own substitute, the plaintiff is entitled to the reasonable rental value
of the substitute used. Restatement (Second) of Torts § 931, cmt. c. Here, MCI has not provided
the reasonable rental value of its own spare capacity; rather it calculated damages based on the
rental value of third-party capacity, as well as the cost of rerouting the traffic.
4
Cases allowing telecommunications companies to recover loss-of-use damages in similar
circumstances include: Level 3 Communications, LLC v. Floyd, 764 F. Supp. 2d 945, 956 (M.D.
Tenn. 2011); Sprint Communications Co., L.P. v. Western Innovations, Inc., 618 F. Supp. 2d 1101,
(footnote continued on next page)
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of any cases applying the spare boat rule to telecommunications disputes under Minnesota
law. The Court finds that the spare boat rule does not allow for damages in this case
because Minnesota law requires a plaintiff to mitigate damages, which MCI did. To allow
MCI to recover under the spare boat line of cases would obviate Minnesota’s requirement
of mitigation.
Even if the spare boat rule could be applied under Minnesota damages law, it would
not allow MCI to recover for loss-of-use damages. While MCI claims that it maintains
extra capacity for emergency purposes only, it does not dispute that it has not installed
independent, spare cables. MCI also does not dispute that it uses this spare capacity when
it needs to shut down a cable to perform a “hot cut.” As such, MCI’s spare capacity is not
the equivalent of a spare boat maintained in reserve for emergencies only because it is also
used for its own non-emergency business.
Furthermore, a determination of loss-of-use damages based on rental of a substitute
would be speculative because a rental market for spare cable capacity does not exist.
Finally, public policy favors this outcome. As noted by the Supreme Court of
Georgia in CMES, the “underlying principle of compensatory damages law is not triggered
1120 (D. Ariz. 2009), on reconsideration in part, No. CV-06-2064-PHX-ROS, 2009 WL 1458467
(D. Ariz. May 21, 2009); and MCI WorldCom Network Servs., Inc. v. Kramer Tree Specialists
Inc., No. 02-C-7150, 2003 WL 22139791, at *2 (N.D. Ill. Aug. 15, 2003).
Cases precluding telecommunications companies from recovering loss-of-use damages in
similar circumstances include: MCI Communications Services v. CMES, Inc., 728 S.E.2d 649, 652
(Ga. 2012); MCI WorldCom Network Servs., Inc. v. Mastec, Inc., 544 F.3d 1200, 1201 (11th Cir.
2008) (citing MCI WorldCom Network Servs., Inc. v. Mastec, Inc., 995 So. 2d 221, 229-30 (Fla.
2008)); and MCI Worldcom Network Servs., Inc. v. OSP Consultants, Inc., 78 Fed.App'x 876, 877
(4th Cir. 2003).
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here. . . .” 728 S.E. 2d at 652. MCI’s spare capacity is a necessary investment to remain
competitive in the telecommunications industry. It has “inherent value . . . apart from its
value in emergencies, and MCI has not shown that the costs of such infrastructure have not
been in some way charged back to its customers by way of, for example, higher rates.” Id.
Allowing MCI to recover loss-of-use damages here would place MCI “in a position
significantly better than it would have been without the severance.” Id. Public policy
weighs against awarding loss-of-use damages in these circumstances, because to do so
would allow corporations to receive windfalls for losses they never suffered and would
compensate them for investments otherwise necessary to make them competitive.
Trespass
Maverick moves for summary judgment on MCI’s trespass claim because MCI did
not possess the land at issue and Maverick did not intentionally cut the Cables. The Court
will grant Maverick’s motion as to this issue.
1. Trespass to Real Property
Under Minnesota law, trespass to real property occurs when the plaintiff has a
rightful possession to land and defendant unlawfully enters upon such possession. Minch
Family LLLP v. Buffalo-Red River Watershed Dist., 628 F.3d 960, 967 (8th Cir. 2010)
(citing Wendinger v. Forst Farms, Inc., 662 N.W.2d 546, 550 (Minn. Ct. App. 2003)).
Maverick argues that MCI cannot show that it possessed the land in which the
Cables were buried and that Maverick had the permission of the City, the land’s true
possessor, to enter upon the land. MCI argues that there is enough circumstantial evidence
- 23 -
to create a genuine dispute of material fact regarding possession of the land in which the
Cables were buried.
MCI’s evidence of possession is not only circumstantial, it is speculative. Even if
a jury could conclude that Brooks had a permit to install the Cables, there is no evidence
that would allow a jury to determine the terms of such a permit, including the terms of any
depth variance that might have been allowed. Furthermore, the City retained the power to
do construction and to force MCI to move its cables. Based on the evidence provided, no
reasonable jury could find that MCI possessed the land. As such, the Court will grant
Maverick’s Motion for Summary Judgment as to MCI’s claim for trespass to real property.
2. Trespass to Chattels
Trespass to chattels is an intentional tort that occurs when a defendant deliberately
dispossesses a plaintiff of chattel. Herrmann v. Fossum, 270 N.W.2d 18, 20 (Minn. 1978).
“An intentional tort is one in which the actor intends to produce the harm that ensues; it is
not enough that he intends to perform the act.” Restatement (Second) of Torts § 870, cmt.
b (1979). A defendant may be “treated as intending [a] consequence if he knows or
believes that the consequence is certain, or substantially certain, to result from his act.” Id.
Maverick seeks summary judgment on this claim because there is no evidence that
it acted intentionally. MCI argues that Maverick cannot defend by saying that it never saw
the specifications or drawings because then a party could never be liable for violating the
requirements governing its work if it failed to ask or read about them.
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A party might be liable in negligence for violating requirements that it failed to ask
about or read, but it would not be liable for the intentional tort of trespass to chattels. 5 It
is undisputed that encountering MCI’s Cables was a surprise to Maverick – as well as to
everyone else involved at the Intersection. Indeed, all the parties involved believed that
the cables would be buried in the soil beneath the concrete. There is no evidence from
which a jury could conclude that Maverick knew or believed that severing the Cables was
certain or substantially certain to result from its saw cutting. As such, no reasonable jury
could find intent, so the Court will grant Maverick’s Motion for Summary Judgment as to
MCI’s claim for trespass to chattels.
Negligence
Minnesota law defines negligence as “the failure ‘to exercise such care as persons
of ordinary prudence usually exercise under such circumstances.’” Domagala v. Rolland,
805 N.W.2d 14, 22 (Minn. 2011) (quoting Flom v. Flom, 291 N.W.2d 914, 916 (Minn.
1980)). To prove negligence, MCI must show: “(1) the existence of a duty of care, (2) a
breach of that duty, (3) an injury, and (4) that the breach of the duty of care was a proximate
cause of the injury.” Id.
Whether Maverick owed MCI a duty of care is a threshold question. Id. As a
company offering professional services, Maverick is under a duty “to exercise such care,
5
See Thompson v. Forest, 614 A.2d 1064, 1067–68 (N.H. 1992) (“[T]he mere knowledge
and appreciation of a risk – something short of substantial certainty – is not intent. The defendant
who acts in the belief or consciousness that the act is causing an appreciable risk of harm to another
may be negligent, and if the risk is great the conduct may be characterized as reckless or wanton,
but it is not an intentional wrong.”) (quoting W.P. Keeton et al., Prosser and Keeton on the Law
of Torts § 8, at 36 (5th ed. 1984)).
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skill, and diligence as men in [its] profession ordinarily exercise under like circumstances.”
Pond Hollow Homeowners Ass'n v. The Ryland Grp., Inc., 779 N.W.2d 920, 923 (Minn.
Ct. App. 2010) (quoting City of Eveleth v. Ruble, 225 N.W.2d 521, 524 (Minn. 1974)).
Ordinarily, expert testimony is required to establish the prevailing industry standard of care
and the consequences of departure from that standard. Id. (citing City of Eveleth, 225 N.W.
2d at 525). However, expert testimony may not be necessary when “it is clear without
resort to expert opinion” that an error or omission on the part of the professional resulted
in damage. City of Eveleth, 225 N.W. 2d at 525.
1. Contractual Duties
Maverick argues that it cannot be held liable in negligence for failing to comply
with the contractual duties set forth in the contracts between the City and Kraemer and
Kraemer and Bolander. “When a contract provides the only source of duties between the
parties, Minnesota law does not permit the breach of those duties to support a cause of
action in negligence.” United States v. Johnson, 853 F.2d 619, 622 (8th Cir. 1988). Rather,
“[t]o prevail in negligence, a plaintiff must prove . . . that the defendant breached ‘some
duty imposed by law’ not merely one imposed by contract.” Id. (quoting D & A Dev.
Co. v. Butler, 357 N.W.2d 156, 158 (Minn.Ct.App. 1984)). As such, MCI cannot sustain
a negligence claim based on Maverick’s alleged contractual duties, and the Court will grant
Maverick’s Motion for Summary Judgment on this issue.
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2. Industry Standards of Care
Maverick argues that it is entitled to summary judgment on negligence because:
(1) evidence regarding excavator industry standards of care are inapplicable to Maverick’s
work, and (2) there is no evidence from which a jury could determine saw cutter industry
standards of care.
Maverick does not dispute that MCI has offered evidence and testimony from which
a jury could determine the excavator industry standard of care. The Court will decline to
rule as a matter of law that Maverick is not an excavator, as will be discussed below. As
such, if the jury determines that Maverick was an excavator, it may consider a claim for
negligence based on the excavator industry standard of care.
Nevertheless, MCI has not presented evidence from which a jury could decipher the
industry standard of care applicable to a saw cutter. MCI’s expert, Peterson, offers several
opinions as to industry best practices for saw cutters. But the Court of Appeals of
Minnesota has said that industry best practices are not industry standards of care. Hofmann
v. Enterprise Leasing Co. of Minnesota, LLC, No. A16-0869, 2017 WL 1210123, at *1
(Minn. Ct. App. Apr. 3, 2017), review denied (June 20, 2017). Indeed, industry best
practices are aspirational, generally requiring a higher standard of care than the industry
standard of care.
Id. at *4 (“[Plaintiff’s expert] never establishe[d] that the
recommendation [rose] any higher than best practices, or that [it] reach[ed] anywhere near
setting the industry standard.”).
In the present case, Peterson’s testimony does not
distinguish between industry best practices and industry standards of care, does not
reference industry practices or guidelines specific to a saw cutter’s duty, and seems to be
- 27 -
based mostly – if not only – on his own view of best practices for saw cutters. This
testimony does not establish saw cutter industry standards of care. See Pond Hollow
Homeowners Ass’n, 779 N.W.2d at 923-24.
For these reasons, the Court will grant summary judgment for Maverick on MCI’s
negligence claim to the extent that it is based on Maverick’s duty as a saw cutter. However,
should the jury find that Maverick’s work constituted excavation, it may consider
negligence based on an excavator industry standard of care.
Statutory Liability
Minnesota law defines “excavation” as “an activity that moves, removes, or
otherwise disturbs the soil by use of a motor, engine, hydraulic or pneumatically powered
tool, or machine-powered equipment of any kind, or by explosives.” Minn. Stat. §
216D.01, subd. 5 (2018). However, excavation does not include “normal maintenance of
roads and streets if the maintenance does not change the original grade and does not involve
the road ditch,” among other things. Id. subd. 5(3).
An “excavator” is someone who “conducts excavation in [Minnesota].” Id. subd.
6. An excavator who damages an “underground facility” is liable to the operator of the
facility for the cost of necessary repairs. Id. subd. 2.
Maverick moves for summary judgment on statutory liability on the grounds that it
was not an excavator and was not engaged in excavation. Maverick argues that it only
engaged in concrete saw cutting and did not work in the soil, work in the road ditch, or
change the road grade. Furthermore, Maverick argues that its work did not “disturb[] the
- 28 -
soil” as that phrase should be interpreted in this statute. Nevertheless, there is evidence to
suggest that Maverick set its saw cutter to cut past the depth of the concrete, and it is
undisputed that the concrete sat atop dirt.
Both parties argue that the plain and ordinary meaning of the word “disturbs” should
guide this action. However, the parties differ as to what result would come of applying
such a plain meaning. The Court agrees that the plain meaning of the statute must be
applied. Am. Family Ins. Grp. v. Schroedl, 616 N.W.2d 273, 277 (Minn. 2000). However,
it is a question of fact whether Maverick “disturbed” the soil under the plain meaning of
that word, and there are facts supporting either conclusion. As such, there remains a
genuine dispute of material fact as to whether Maverick was engaged in excavation, and
this question must be resolved by the jury. The Court will thus deny Maverick’s Motion
for Summary Judgment on MCI’s claim for statutory liability.
The Court will grant Maverick’s Motion for Summary Judgment as to: (1) loss of
use damages; (2) trespass; and (3) negligence based on contractual duties or a saw cutter’s
industry standard of care. However, a genuine dispute of material fact remains as to
whether Maverick was engaged in excavation. As such, the jury must determine whether
Maverick is liable as an excavator under Minnesota statute or in negligence based on an
excavator’s industry standard of care.
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II.
MOTIONS IN LIMINE TO EXCLUDE EXPERT TESTIMONY
Standard of Review
Under Federal Rule of Evidence 702, expert testimony must satisfy three
prerequisites to be admitted:
First, evidence based on scientific, technical, or other
specialized knowledge must be useful to the finder of fact in
deciding the ultimate issue of fact. This is the basic rule of
relevancy. Second, the proposed witness must be qualified to
assist the finder of fact. Third, the proposed evidence must be
reliable or trustworthy in an evidentiary sense, so that, if the
finder of fact accepts it as true, it provides the assistance the
finder of fact requires.
Lauzon v. Senco Prods., Inc., 270 F.3d 681, 686 (8th Cir. 2001) (emphasis added) (cleaned
up). The Court has a “gatekeeping” obligation to make certain that all testimony admitted
under Rule 702 satisfies these prerequisites. Daubert v. Merrell Dow Pharm., Inc., 509
U.S. 579, 589 (1993). The proponent of the testimony bears the burden of proving its
admissibility. Wagner v. Hesston Corp., 450 F.3d 756, 758 (8th Cir. 2006).
Rule 702 requires that an expert possess “knowledge, skill, experience, training, or
education sufficient to assist the trier of fact. . . .” Robinson v. GEICO Gen. Ins. Co., 447
F.3d 1096, 1100 (8th Cir. 2006) (internal quotations omitted). But this requirement is
“satisfied where expert testimony advances the trier of fact’s understanding to any degree,”
and “[g]aps in an expert witness’s qualifications or knowledge generally go to the weight
of the witness’s testimony, not its admissibility.”
Id. (internal quotations omitted)
(emphasis added). Ultimately, the Court “should resolve doubts regarding the usefulness
of an expert's testimony in favor of admissibility.” Marmo v. Tyson Fresh Meats, Inc., 457
- 30 -
F.3d 748, 758 (8th Cir. 2006). “Vigorous cross-examination, presentation of contrary
evidence, and careful instruction on the burden of proof are the traditional and appropriate
means of attacking shaky but admissible evidence.” Robinson, 447 F.3d at 1100 (quoting
Daubert, 509 U.S. at 595). Nevertheless, overly speculative testimony should not be
admitted, and the Court should not admit opinion evidence that is “connected to existing
data only by the ipse dixit of the expert.” Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146
(1997). Furthermore, the Court must ensure that a witness’s area of competence matches
the subject matter of his or her testimony. Robinson, 447 F.3d at 1101.
Maverick’s Motion In Limine
Maverick seeks to exclude portions of MCI expert Ron Peterson’s testimony, all of
MCI expert Peter Tooley’s testimony, and all evidence of rental costs for substitute cables.
The Court will grant Maverick’s Motion in Limine in part and deny it in part. The Court
will preclude Peterson from testifying regarding contract interpretation, what Brooks did
when installing the Cables, and saw cutter industry standards of care. The Court will also
exclude Tooley’s testimony as well as evidence of rental value because both are irrelevant
given the Court’s ruling on loss-of-use damages.
1. Peterson’s Testimony
Maverick moves to exclude the portions of Peterson’s testimony relating to disputed
questions of material fact, legal standards and obligations, contract formation and contract
terms, GPR, and excavation industry standards of care.
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First, Maverick seeks to preclude Peterson from testifying to disputed facts. An
expert may give an opinion “based upon factual assumptions, the validity of which are for
the jury to determine;” however, an expert may not testify “that a disputed fact actually
occurred or that one witness is more credible than another. . . .” Thomas v. Barze, 57 F.
Supp. 3d 1040, 1059 (D. Minn. 2014) (quoting Richman v. Sheahan, 415 F.Supp.2d 929,
942 (N.D. Ill. 2006)). As such, Peterson may offer statements of fact as the basis for his
opinions and conclusions but may not opine on their veracity or on the testifying witnesses’
credibility.
Second, Maverick argues that Peterson’s testimony that Maverick should have been
alerted to the presence of the underground cable while saw cutting has no factual
foundation and is based on inconsistent testimony. But Maverick does not argue that
Peterson is unqualified to give such an opinion. Furthermore, there are facts in the record
that could lead a jury to agree with Peterson’s opinion. Peterson may offer this opinion,
and any inconsistencies may be explored in cross-examination.
Third, Maverick seeks to exclude Peterson’s testimony that Brooks followed
industry standards of care when placing cables along Kellogg Boulevard. Peterson has no
personal knowledge of what Brooks did or of any alleged permit. As such, he may not
testify as to Brooks’s actions or as to whether they complied with a permit. Peterson does,
however, opine that encasing cables in a steel pipe surrounded with concrete is a commonly
used and accepted practice in the industry. Peterson may offer this opinion and may testify
as to whether the placement of the Cables appeared to comply with this practice.
- 32 -
Fourth, Maverick seeks to preclude Peterson from offering testimony regarding saw
cutter industry standards of care. Because the Court will grant summary judgment for
Maverick on MCI’s negligence claim based on saw cutter industry standards of care, this
testimony is irrelevant and may not be offered.
Fifth, Maverick seeks to exclude Peterson’s testimony regarding what Maverick
“should have done.” Maverick argues that these conclusions should be left to the jury, and
that Peterson’s testimony should be limited to describing standard practices within the
industry. “An expert witness may give opinion testimony if it will assist the trier of fact to
understand the evidence or determine a fact in issue. Such opinion testimony is not
inadmissible merely because it embraces an ultimate issue to be decided by the trier of
fact.” Johnson Grp. v. Beecham, Inc., 952 F.2d 1005, 1007 (8th Cir. 1991) (internal
citations omitted). As such, Peterson may testify about what Maverick should have done
according to standard practices within the industry.
Sixth, Maverick seeks to exclude Peterson’s testimony regarding excavation
industry standards of care because the testimony rests on the faulty conclusion that
Maverick was engaged in excavation. As noted above, it is a question of fact for the jury
whether Maverick disturbed the soil. Peterson may thus testify as to excavation industry
standards of care, which will be relevant to the negligence claim if the jury finds that
Maverick was an excavator. 6
6
Maverick’s expert, Hamilton, may also testify regarding excavation. The Court notes that
MCI did not seek to exclude such testimony.
- 33 -
Finally, Maverick argues that Peterson must be prohibited from offering testimony
or opinions regarding Maverick’s contractual duties. Because Peterson does not purport to
be an expert on contract interpretation, and because Maverick is not bound by contracts to
which it was not a signatory, Peterson may not testify regarding any contractual duties.
2. Tooley’s Testimony and Evidence of Rental Value
Because MCI is not entitled to loss-of-use damages, neither Tooley’s testimony nor
evidence of rental value is relevant. The Court will exclude this evidence.
MCI’s MOTION IN LIMINE
MCI seeks to exclude Hamilton’s opinions on: (1) the depth of the Cables; (2) saw
cutter industry standards of care and whether they were followed; (3) Maverick’s
responsibilities with regard to utility locating; (4) the implications of Bolander being a
“low-bid” contractor; and (5) what MCI’s locator should have done to determine depth of
the Cables. MCI argues that Hamilton may not offer opinions on these issues because he
does not have knowledge, skills, experience, training, or education related to underground
utilities, saw cutting, or the industry standards or practices for either of these industries.
The Court will grant MCI’s Motion in Limine in part and deny it in part. The Court
will preclude Hamilton from testifying as to the saw cutter industry standards of care but
will allow him to testify as to the other opinions contained in his report.
1. Hamilton’s Expertise Related to Underground Utilities
MCI argues that Hamilton’s only experience related to underground utilities is his
work on one project, the Green Line, and that he has never been personally responsible for
- 34 -
locating or relocating existing utility facilities. Furthermore, he has never performed saw
cutting in the field and was not aware of what industry standards of care would apply to
saw cutting. But Hamilton has expertise in installing underground utilities for the light rail
system. (2d Proszek Decl. ¶ 4, Ex. 2 (“Hamilton Dep.”) at 15-16.) Hamilton worked on
the Green Line for approximately seven years, on the Blue Line for five years, and on a
Denver light rail project for approximately four years. (Id. at 10.) For the Green Line
project, Hamilton was responsible for identifying conflicts with existing utilities and
developing standards for the placement of new utilities. (Id. at 4, 10.) While Hamilton
acknowledged that he was not responsible for developing standards or specifications for
how the contractors working on the project were to locate and protect existing utilities, he
was “aware of the basic procedures that they followed,” including utility coordination
meetings, working with the GSOC, identifying existing utilities, and relocating them. (Id.
at 4.) Hamilton was also responsible for identifying conflicts with existing utility facilities
in his work for the Blue Line and for the Denver light rail project. (Id. at 6, 13.) The
Project at issue in this case was similar in scale and process to the Green Line project that
Hamilton worked on.
Hamilton has enough experience to testify regarding underground utilities and their
location/relocation. However, Hamilton has no experience with saw cutting industry
standards of care, and those standards are made irrelevant by the Court’s ruling on the
negligence claim. As such, Hamilton may offer testimony regarding underground utilities
and their location/relocation but may not offer opinions regarding saw cutter industry
standards of care.
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2. Hamilton’s Expertise Related to Low Bid Contractors
MCI argues that Hamilton is not an expert with regards to low bid contractors
because the only support he provided for his opinion was an article that he reviewed
specifically in preparation for the work he had done on this case. (Id. at 3.) However,
Hamilton also testified that he was previously aware of the distinction between industry
standard of care and industry best practice because it was a topic that came up on occasion
during his work with the light rail, but he “wanted to find an article that talked about it . . .
.” (Id.) Hamilton also had personal knowledge of the distinctions between low-bid versus
best value projects because he reviewed all contractor bids on the Green Line project. (Id.
at 31, 33.) Indeed, Hamilton testified that the bulk of the Green Line project was a lowbid project. (Id. at 33.)
Hamilton has enough experience to testify regarding low-bid and best-value
contracts. He also has enough experience to testify about the distinction between industry
standard of care and industry best practice. He may offer testimony on these issues.
3. Reliability of Hamilton’s Opinions
MCI argues that various opinions offered by Hamilton are unreliable.
First, MCI argues that Hamilton’s opinion that Maverick’s contract was a “low-bid”
contract and was therefore only subject to industry standards of care, not industry best
practices, is unreliable because it was equivocal. Any deficiencies in this testimony go to
weight, not admissibility, and can be explored on cross examination.
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Second, MCI seeks to exclude Hamilton’s opinions as to the depth of the Cables,
and whether that depth was unusual, as unreliable because the basis for his conclusion was
the Minnesota Administrative Code, which Hamilton had not encountered before being
hired as an expert. MCI also argues that the code includes language allowing for other
depths of placement on a case-by-case basis. But Hamilton has industry experience to
support his view that seven inches was an unusual depth. Ultimately, any deficiencies in
these opinions go to weight, not admissibility, and may be explored on cross examination.
Finally, MCI argues that Hamilton’s opinion that MCI would have been obligated
to notify and work closely with Bolander or Maverick per City code because the Cables
were less than twenty inches deep is unreliable because Hamilton was not personally aware
of this requirement before being hired as an expert. Again, these deficiencies go to weight,
not admissibility, and can be addressed by cross-examination.
4. Usefulness of Hamilton’s Opinions/Province of the Jury
MCI also argues that most of the opinions and conclusions that Hamilton sets forth
in his report are simply statements of fact based on his review of various documents and
that such testimony is not helpful to the jury. Hamilton may offer statements of fact to
explain the basis of his opinions but may not testify to the veracity of disputed facts or the
veracity of witnesses. See Barze, 57 F. Supp. 3d at 1059.
ORDER
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that:
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1.
Defendant’s Motion for Summary Judgment [Docket No. 36] is GRANTED
IN PART and DENIED IN PART as described herein.
2.
Plaintiffs’ Motion to Exclude Expert Testimony of Steven M. Hamilton
[Docket No. 43] is GRANTED IN PART and DENIED IN PART as described herein.
3.
Defendant’s Motion to Exclude Expert Testimony and Rental Cost
Documentation [Docket No. 54] is GRANTED IN PART and DENIED IN PART as
described herein.
DATED: March 12, 2019
at Minneapolis, Minnesota.
_______s/John R. Tunheim____
JOHN R. TUNHEIM
Chief Judge
United States District Court
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