L. W. Matteson, Inc. v. Sevenson Environmental Services, Inc.
Filing
142
ORDER granting in part and denying in part 122 Fourth Motion in Limine. Signed by Hon. H. Kenneth Schroeder, Jr on 5/23/2013. (KER)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
L.W. MATTESON, INC.,
Plaintiff,
10-CV-0168S(Sr)
v.
SEVENSON ENVIRONMENTAL
SERVICES, INC.,
Defendant.
DECISION AND ORDER
In accordance with 28 U.S.C. § 636(c), the parties have consented to
have the undersigned conduct all further proceedings in this case, including entry of
final judgment. Dkt. #100.
Currently before the Court is plaintiff L.W. Matteson, Inc.’s (“Matteson’s”),
fourth motion in limine seeking to exclude evidence or argument from defendant
Sevenson Environmental Services, Inc.’s (“Sevenson’s”), expert witnesses, Timothy
Harrington, P.E. and Michael Pisani, P.E. on the ground that their original expert
disclosure relates solely to issues of productivity, which are not relevant to the issues
remaining in this matter following the Court’s summary judgment decision, and to
exclude evidence or argument from Sevenson’s expert witness, Timothy Donegan,
P.E., concerning productivity. Dkt. #122. Matteson also seeks to exclude evidence or
-1-
testimony contained in the experts’ supplemental expert reports in accordance with this
Court’s Decision and Order (Dkt. #87), denying Sevenson’s motion to supplement their
expert disclosure. Dkt. #122.
Sevenson responds that it does not intend to call Michael Pisani, P.E. at
trial and agrees that the denial of its request to supplement its original expert witness
reports precludes reference by its expert witnesses of information which was not
contained in their original reports. Dkt. #129. With respect to Mr. Donegan, Sevenson
states that it will not offer testimony that most rental contracts have a minimal
production rate clause. Dkt. #129. With respect to Mr. Harrington, Sevenson states
that it will not offer testimony regarding the crack in the hull of the dredge. Dkt. #129,
p.14. However, Sevenson argues that testimony from Mr. Donegan and Mr. Harrington,
consistent with their original expert reports, “will assist the jury in understanding the
scientific methodologies employed in dredging, and is relevant to the primary disputed
fact of the case - that Matteson was not pumping material during . . . all times in which
it billed Sevenson at the 100% rate.” Dkt. #129, pp.12-13.
Mr. Donegan’s expert report sets forth the following opinions:
1. Matteson should have considered an employee
monitoring outflow at the rim ditch when the density
meter was not operating properly during dredging.
2. Matteson’s production decreased as a result of a
problem with the operation of the port spud on the
Little Rock dredge.
3. Over a 15-day period from 8/17/09 through 8/31/09,
-2-
the Little Rock dredge averaged approximately 5,650
cubic yards of daily production of fly ash on 11 days
of production. The Little Rock had no production on
the remaining four days. The basis of this opinion is
an inspection and review of data from WinOPS
software program aboard the Little Rock on
September 1 and 2, 2009. WinOPS is a dredging
software that is used for providing positional
information, data logging of dredging operations. The
WinOPS position (using a global positioning system)
output was overlaid with the hydrographic survey
performed by Sevenson (before dredge and after
dredge) to determine where the dredge was on a
particular day and how many cubic yards were
removed that day.
4. Review of the WinOPS data logged during the period
of 8/26/09 to 9/2/09 during my site visit on September
1 and 2, 2009 indicates that the density meter on the
Little Rock was either not working or the dredge was
pumping clean water. The WinOPS system logged
position and density of the slurry in the pipeline. If the
software had logged a “1" then the material in the
pipeline is just water. If the output from the density
meter is greater than 1, then it is pumping water.1
Dkt. #79-2, p.2.
Sevenson argues that Mr. Donegan’s opinion that Matteson should place
an employee at the rim ditch to monitor outflow goes to Matteson’s capacity to
determine whether the pump was moving material rather than water when it was billing
1
The Court refers the parties to its Decision and Orders precluding Mr.Donegan from
opining that the WinOPS data collected from the density meter during this time period
demonstrates that Matteson had not accurately recorded its 100% pay time. Dkt. ##87 & 141.
However, Mr. Donegan’s timely disclosed opinion, based upon his review of data and
observations during the course of his site visit, that the density meter was either not working or
the dredge was pumping clean water, cannot be deemed clearly inadmisible on all potential
grounds and is better addressed during the course of the trial.
-3-
100% time. Dkt. #129, p.13. Sevenson also argues that Donegan’s opinion that
Matteson’s production decreased as a result of a problem with the operation of the port
spud goes to whether Matteson spent more time than necessary repositioning the
dredge, thereby inflating the amount of 70% pay time. Dkt. #129, p.13. Finally,
Sevenson argues that Mr. Donegan’s opinion regarding the average cubic yards of daily
production and the density meter recording disputes Matteson’s claim that it was
moving material through the dredge pipe for the amount of time claimed in the dredge
logs because if Matteson was moving material through the pipe, productivity would have
been higher than the daily average. Dkt. #129, p.14.
Matteson replies that there is no evidence that Sevenson ever requested
that Matteson place an employee at the rim ditch or that any such employee could have
visually detected fly ash with a density of as little as 1.001 and notes that Sevenson
placed one of its own employees at the rim ditch. Dkt. #138, pp.2-3. Matteson also
replies that the contract did not limit the amount of 70% pay time and that Sevenson’s
remedy for displeasure with Matteson’s efficiency was to terminate the contract. Dkt.
#138, pp.3-4. Matteson replies that Mr. Donegan’s opinion as to the amount of material
dredged is irrelevant and that his opinion regarding the density meter undermines
Sevenson’s contention that the density meter was working properly and that WinOPS
was properly recording data from the density meter. Dkt. #138, p.4.
Mr. Harrington’s expert report sets forth the following opinions:
1. The unusable condition of the port spud on the Little
Rock dredge negatively impacted dredging production
on this project.
-4-
2. The step times of the Little Rock dredge were
unusually long, resulting in a loss of production time
on this project.
3. The anchor re-positioning time on the Little Rock was
unusually long resulting in a loss of production on the
project.
4. The Little Rock dredge positioned its cutterhead too
deep at times, resulting in a loss of production on this
project.
5. The speed on the cutterhead may have been too slow
for the advance rate, resulting in loss of production on
this project.
Dkt. #79-2, p.6.
Sevenson argues that his opinions regarding the port spud, the step times
(relocating the dredge) and anchor repositioning time are relevant to Matteson’s
entitlement to the 70% pay rate. Dkt. #129, pp.14-15. Moreover, Mr. Harrington’s
observation that the cutterhead was positioned too deep at times, thereby preventing
the pumping of material, despite the fact that the pump was engaged, and the speed of
operation on the cutterhead may have been to slow for the dredge’s advance rate,
thereby preventing the capture of the fly ash slurry, is relevant to whether the dredge
was pumping material as required to justify 100% pay time hours. Dkt. #129, p.15.
Matteson replies that each of Mr. Harrington’s opinions relate solely to the
rejected claim that Matteson failed to meet its 12,000 cubic yard per day production
requirement because of alleged problems with its dredge or its dredging technique.
Dkt. #138, p.5. Matteson notes that the contract requires Sevenson to pay Matteson
-5-
when it is repositioning a dredge, regardless of how long it takes or how efficient
Matteson is in the process. Dkt. #138, p.5. Matteson also notes that it has a financial
incentive to minimize the time repositioning the dredge because the more time it takes
on this function, the less opportunity it has to earn 100% pay time for dredging
material.” Dkt. #138, p.5.
“The purpose of an in limine motion is to aid the trial process by enabling
the Court to rule in advance of trial on the relevance of certain forecasted evidence, as
to issues that are definitely set for trial, without lengthy argument at, or interruption of,
the trial.” Palmieri v. Defaria, 88 F.3d 136, 141 (2d Cir. 1996). “Although the Federal
Rules of Evidence do not explicitly authorize in limine rulings, the practice has
developed pursuant to the district court’s inherent authority to manage the course of
trials.” Luce v. United States, 469 U.S. 38, 41 n.4 (1984). “The trial court should
exclude evidence on a motion in limine only when the evidence is clearly inadmissible
on all potential grounds.” United States v. Ozsusamlar, 428 F. Supp.2d 161, 164
(S.D.N.Y. 2006). “Indeed, courts considering a motion in limine may reserve judgment
until trial, so that the motion is placed in the appropriate factual context.” Scott v. City
of New York, 591 F. Supp.2d 554, 557 (S.D.N.Y. 2008).
Although it is obvious that the expert opinions at issue were originally
proffered in support of Sevenson’s theory that Matteson was not meeting production
requirements – a theory that is no longer a viable defense to this action – it cannot be
said that these opinions, and the facts upon which they are based, may not be relevant
-6-
to the issue of whether Matteson accurately recorded 100% pay time, to wit, is there
evidence that Matteson was charging 100% pay time when the dredge was pumping
water as opposed to fly ash, and whether Matteson’s recording of 70% pay time was
inflated due to, e.g., lack of manpower or sufficiently trained employees or improperly
maintained equipment. Accordingly, Matteson’s fourth motion in limine is denied.
SO ORDERED.
DATED:
Buffalo, New York
May 23, 2013
s/ H. Kenneth Schroeder, Jr.
H. KENNETH SCHROEDER, JR.
United States Magistrate Judge
-7-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?