Buesing Corporation, an Arizona corporation v. Helix Electric of Nevada LLC

Filing 120

ORDER. IT IS HEREBY ORDERED, ADJUDGED, and DECREED that Helix's motion in limine #1 ( 108 be, and the same hereby is, DENIED. IT IS FURTHER ORDERED that Helix's motion in limine #2 109 be, and the same hereby is, DENIED. IT IS FURTHER ORDERED that Helix's motion in limine #3 110 be, and the same hereby is, DENIED. Signed by Judge James C. Mahan on 4/7/2023. (Copies have been distributed pursuant to the NEF - LOE)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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BUESING CORPORATION,

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Plaintiff(s),

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Case No. 2:16-CV-1439 JCM (NJK)
ORDER

v.
HELIX ELECTRIC OF NEVADA, LLC,

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Defendant(s).

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Presently before the court are defendant/counterclaimant Helix Electric of Nevada, LLC

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(“Helix”)’s three motions in limine. (ECF Nos. 108, 109, 110). Plaintiff/counterdefendant

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Buesing Corporation (“Buesing”) responded. (ECF Nos. 114, 115, 116).
I.

INTRODUCTION
In August 2015, Helix hired Buesing pursuant to a subcontract for the performance of

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certain pile driving construction work at a project in Henderson, Nevada (the “subcontract”). The
contract required Buesing to install 7,898 piles at a total cost of $313,296.00 in accordance with

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certain project documents, including a SNWA Ninyo & Moore pile test report. The pile test report

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contained an analysis on the site, including a soils report. Based on the information in the report,

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Buesing anticipated that it would install approximately 527 piles per day.

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Once Buesing began work, it almost immediately encountered soil conditions that were

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different than those disclosed in the pile test report. After four days of work, Buesing had installed

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James C. Mahan
U.S. District Judge

only 500 piles, many of which were damaged and required removal.
Buesing subsequently informed Helix that it encountered differing soil conditions, and the
parties modified the contract in the amount of $130,000.00 for “pulling and drilling for remediation
of piles.” Despite the modification, Buesing encountered ongoing difficulties, and the parties
ultimately agreed to temporarily stop installing piles.

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Shortly thereafter, Buesing informed Helix that it could no longer perform the pile work

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due to the differing soil conditions. In response, Helix sent Buesing a written notice of default for

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Buesing’s abandonment of the subcontract. The next day, Buesing notified Helix that it would be

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on the site the following day resolve the issues thwarting remediation efforts. Buesing allegedly

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did not cure its default, but instead ceased its operations.
Several days later, Helix terminated the subcontract, asserting that Buesing failed to
perform and abandoned the job. On that same day, Buesing sent a letter to Helix, in which Buesing
stated that it had not abandoned the subcontract, but that it could not complete performance without

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further modification of the subcontract. Thereafter, Helix contracted with another company to

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compete the pile driving work and did not compensate Buesing.

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Buesing initiated the instant action, bringing three causes of action: (1) declaratory

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judgment; (2) breach of contract; and (3) breach of the implied covenant of good faith and fair

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dealing. Helix filed an answer and counterclaim, asserting the same three causes of action against

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Buesing. The matter is set for a bench trial on April 24, 2023. Helix now moves the court to

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exclude certain witness testimony in advance of the trial.
II.

LEGAL STANDARD
“The court must decide any preliminary question about whether . . . evidence is

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admissible.” Fed. R. Evid. 104. Motions in limine are procedural mechanisms by which the court

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can make evidentiary rulings in advance of trial, often to preclude the use of unfairly prejudicial

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evidence. United States v. Heller, 551 F.3d 1108, 1111-12 (9th Cir. 2009); Brodit v. Cambra, 350

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F.3d 985, 1004-05 (9th Cir. 2003).

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“Although the Federal Rules of Evidence do not explicitly authorize in limine rulings, the

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practice has developed pursuant to the district court’s inherent authority to manage the course of

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trials.” Luce v. United States, 469 U.S. 38, 41 n.4 (1980). Motions in limine may be used to

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exclude or admit evidence in advance of trial. See Fed. R. Evid. 103; United States v. Williams,
939 F.2d 721, 723 (9th Cir. 1991) (affirming district court’s ruling in limine that prosecution could
admit impeachment evidence under Federal Rule of Evidence 609).
Judges have broad discretion when ruling on motions in limine. See Jenkins v. Chrysler

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Motors Corp., 316 F.3d 663, 664 (7th Cir. 2002); see also Trevino v. Gates, 99 F.3d 911, 922 (9th

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Cir. 1999) (“The district court has considerable latitude in performing a Rule 403 balancing test

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and we will uphold its decision absent clear abuse of discretion.”).

James C. Mahan
U.S. District Judge

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“[I]n limine rulings are not binding on the trial judge [who] may always change his mind

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during the course of a trial.” Ohler v. United States, 529 U.S. 753, 758 n.3 (2000); accord Luce,

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469 U.S. at 41 (noting that in limine rulings are always subject to change, especially if the evidence

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unfolds in an unanticipated manner). “Denial of a motion in limine does not necessarily mean that

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all evidence contemplated by the motion will be admitted at trial. Denial merely means that
without the context of trial, the court is unable to determine whether the evidence in question
should be excluded.” Conboy v. Wynn Las Vegas, LLC, no. 2:11-cv-1649-JCM-CWH, 2013 WL
1701069, at *1 (D. Nev. April 18, 2013).

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The primary purpose of a motion in limine is to resolve evidentiary disputes without having

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to present potentially prejudicial evidence in front of a jury. See Pinal Creek Group v. Newmont

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Mining Corp., No. CV–91–1764–PHX–DAE, 2006 WL 1766494, at *1 (D. Ariz. June 26, 2006).

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Thus, “in the case of a bench trial, a threshold ruling is generally superfluous.” United States v.

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Heller, 551 F.3d 1108, 1112 (9th Cir. 2009).
The court will be in a better position to rule upon challenges to evidence during trial when

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there will be a fuller understanding of the issues and evidence in the case. Therefore, the more
prudent course in a bench trial is to resolve evidentiary doubts in favor of admissibility. See Shaw
v. Citimortgage, Inc., 3:13-cv-0445-LRH-VPC, 2016 WL 1659973 at *2 (D. Nev. April 26, 2016).
III.

DISCUSSION

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a. Motion in limine #1

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Helix seeks to exclude testimony and reports Buesing’s expert witness Philip Coppola

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(“Coppola”) regarding different soil conditions, asserting that Coppola is not qualified as an expert

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to render such opinions.

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i. Expert witnesses
Federal Rule of Evidence 702 provides that a witness qualified as an expert may testify if
“(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.

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In determining whether an expert’s testimony is reliable under Rule 702, courts consider

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“(a) whether the theory or technique can and has been tested; (b) whether the theory or technique

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has been subjected to peer review and publication; (c) the known or potential rate of error for the

James C. Mahan
U.S. District Judge

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technique; and (d) the theory or technique’s general degree of acceptance in the relevant scientific

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community. Boyd v. City & Cty. of San Francisco, 576 F.3d 938, 945 (9th Cir. 2009) (citing

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Daubert v. Merrel Dow Pharm., Inc., 509 U.S. 579, 597 (1993)). District judges retain “broad

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latitude to determine” whether these factors reasonably measure the reliability of an expert

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witness’s testimony. Estate of Barabin v. AstenJohnson, Inc., 740 F.3d 457, 463 (9th Cir. 2014)
(quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150 (1999)).
Exclusion of expert testimony is proper only when such testimony is irrelevant or

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unreliable, because “[v]igorous cross-examination, presentation of contrary evidence, and careful

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instruction on the burden of proof are the traditional and appropriate means of attacking shaky but

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admissible evidence.” Daubert, 509 U.S. at 596 (citing Rock v. Arkansas, 483 U.S. 44, 61 (1987)).

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ii. Philip Coppola

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In support of its motion, Helix asserts Coppola is not qualified to opine on the soil

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conditions in the soils report nor can he respond to Helix’s geotechnical expert’s opinions. (ECF

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No. 108). Helix points to Coppola’s deposition testimony in which he admits to not having soil-

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related certifications or licenses and that he is not a geotechnical engineer, geotechnical contractor,
soils engineer, or civil engineer. (Id.). Finally, Helix notes that Coppola did not perform soil
analyses himself, nor would he be qualified to do so. (Id.).

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Buesing contends that Coppola’s experience is sufficient to qualify him as an expert. (ECF

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No. 111). Coppola has read, interpreted, and acted on hundreds of soils reports and has over 40

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years of experience doing so. (ECF No. 41-28). Moreover, Coppola has served as an expert in a

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plethora of construction-related disputes and has offered opinions on geotechnical issues in over

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20 cases. (Id.).

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Buesing also submits that Coppola’s opinions are based upon competent evidence. (ECF

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No. 111). Indeed, Coppola bases his opinions on, inter alia, the subcontract, Ninyo & Moore’s

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geotechnical report and pile load testing, various records relating to the performance of the
subcontract, and his years of experience dealing with geotechnical issues. (ECF No. 108-1).
Given Coppola’s experience with soils reports and geotechnical issues, his lack of
certification or specific title is insufficient to preemptively disqualify him as an expert. Moreover,

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his testimony runs no risk of tainting a jury, as this matter is set for a bench trial. The appropriate

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means by which to attack Coppola’s qualifications and testimony is through cross-examination

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and other evidentiary mechanisms at trial. See Daubert, 509 U.S. at 596.

James C. Mahan
U.S. District Judge

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Thus, Helix’s motion in limine #1 is DENIED.

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b. Motion in limine #2

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Helix seeks to exclude all witness testimony about differing soil conditions, asserting that

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none of Buesing’s lay or expert witnesses are qualified to render such opinions. As an initial

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matter, much of Helix’s argument is premised on Nevada rules of evidence, which Buesing
disputes. (See ECF Nos. 109, 115). This court is sitting in diversity, and the Federal Rules of
Evidence apply. “[S]tate law governs the witness’s competency regarding a claim or defense for
which state law supplies the rule of decision.” Fed R. Evid. 601; see Fed. R. Evid. 1101. The

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issue here is whether the substance of a lay witness’s opinion is admissible, though, not whether

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the witness is competent to testify. Thus, federal law applies.

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Rule 701 governs opinion testimony by lay witnesses. Lay witnesses must limit their

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opinion to “one that is: (a) rationally based on the witness’s perception; (b) helpful to clearly

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understanding the witness’s testimony or to determining a fact in issue; and (c) not based on

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scientific, technical, or other specialized knowledge within the scope of Rule 702.”

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Buesing intends to present lay witness opinion testimony that concerns the witnesses’
“personal knowledge of the geotechnical reports, their personal observations of actual soil and
sub-surface conditions on the project, and the difficulties personally experienced during pile-

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driving activities.” (ECF No. 115). These opinions are necessarily based on each witness’s

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personal perception, experience, and knowledge. Moreover, the condition of the soil is critical to

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the resolution of this case, and the proposed lay witness opinion likely will be helpful to determine

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relevant facts.

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Helix contends that allowing lay witness opinion on soil conditions would mislead the jury,

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but as the court iterated supra, this matter is set for a bench trial, and any potential adverse effect

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on a jury is immaterial.

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Thus, Helix’s motion in limine #2 is DENIED.
c. Motion in limine #3
Helix seeks to exclude testimony and reports of Coppola regarding Buesing’s damages,
asserting that he lacks the foundation to render such opinions. In support of its motion, Helix

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submits that Coppola did not rely on sufficient information to form his opinion on damages and

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thus he cannot be qualified as an expert. (ECF No. 110),

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U.S. District Judge

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Coppola relies on a number of documents containing financial data provided by Buesing

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as well as several items of correspondence. (ECF No. 110-1). He also relies on his experience

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and knowledge in the field and has served as an expert in over 20 cases similar to this matter. (Id.).

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Without belaboring the same analysis that was applied to Helix’s motion in limine #1 supra, the

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court finds Helix’s argument insufficient to preemptively disqualify Coppola as an expert
regarding damages.
Thus, Helix’s motion in limine #3 is DENIED.
IV.

CONCLUSION

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Accordingly,

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IT IS HEREBY ORDERED, ADJUDGED, and DECREED that Helix’s motion in limine

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#1 (ECF No. 108) be, and the same hereby is, DENIED.
IT IS FURTHER ORDERED that Helix’s motion in limine #2 (ECF No. 109) be, and the
same hereby is, DENIED.
IT IS FURTHER ORDERED that Helix’s motion in limine #3 (ECF No. 110) be, and the
same hereby is, DENIED.
DATED April 7, 2023.
__________________________________________
UNITED STATES DISTRICT JUDGE

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James C. Mahan
U.S. District Judge

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