Global One Engineering, LLC v. SiteMaster, Inc.

Filing 54

OPINION AND ORDER by Magistrate Judge Frank H McCarthy ; denying 27 Motion in Limine (tjc, Dpty Clk)

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
GLOBAL ONE ENGINEERING, LLC,
Plaintiff,
vs.

Case No. 15-CV-583-CVE-FHM

SITEMASTER, INC,
Defendant.
OPINION AND ORDER
Defendant Sitemaster, Inc.’s Motion in Limine to Exclude Plaintiff’s Expert Michael
Berryman, [Dkt. 27], has been referred to the undersigned United States Magistrate Judge
for decision.
Background
In simplified terms, Plaintiff is seeking recovery of an amount exceeding $300,000
for work performed under the terms of a contract between Plaintiff and Defendant.
Defendant has counterclaimed, alleging damages of over $900,000 resulting from Plaintiff’s
breach of the contract. Among Defendant’s allegations are claims that Plaintiff: failed to
bring a qualified and sufficient team to the site; Plaintiff failed to meet quality control
standards; failed to meet the scope and specifications required on the project; and failed
to use proper materials. Defendant also alleges that Plaintiff misrepresented its knowledge
of Society for Protective Coatings (SSPC) standards and qualifications to complete the
project.
The Parties’ Assertions
Defendant seeks to exclude the testimony of Plaintiff’s expert witness, Michael
Berryman, from the trial of this case. Defendant asserts that Mr. Berryman does not

possess the necessary qualifications to provide expert testimony in matters that are critical
to the lawsuit. According to Defendant, Mr. Berryman cannot testify as an expert because,
although he has experience as a construction general contractor, he has no knowledge skill
and experience in the standards established by the SSPC; he has never worked on a
project overseas, or done a project for the U.S. Navy; he has no experience in determining
how long it should take to perform the activities necessary to prepare and paint a
communications tower; he has never prepped or painted a tower; he has never given an
opinion on SSPC Industry Standards; and has never climbed a tower in connection with his
work as a general contractor. Defendant also points out that Mr. Berryman is not a
member of several identified professional construction related organizations. [Dkt. 27, p.
8].
Plaintiff asserts that Mr. Berryman’s testimony is not intended to establish that
Plaintiff’s work met the standards of the SSPC. Rather his testimony relates to the industry
meaning of technical terms employed in the contract, billing practices in the commercial
construction industry, construction industry practices relating to payment to subcontractors,
and construction industry standards concerning dealing with construction delays and
changes in scope of work. According to Plaintiff, these issues are ones where the jury will
need the assistance of expert testimony. In addition, these issues are central to its claim
that over $300,000 remains unpaid and owed to Plaintiff. Plaintiff argues that Mr. Berryman
is qualified to testify on these subjects by having over 38 years of experience as a general
contractor.

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Analysis
Fed.R.Evid. 702 provides:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of
an opinion or otherwise 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 imposes upon the court an important “gate-keeping” function with regard
to the admissibility of expert opinions.

See generally Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). In order to
determine whether an expert’s opinion is admissible, the court undergoes a two-step
analysis. First, the court has to determine whether the expert is qualified by “knowledge,
skill, experience, training, or education” to render an opinion. See Fed.R.Evid. 702. Second,
if the expert is so qualified, the court determines whether the opinions are “reliable” under
the principles set forth under Daubert, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469, and
Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238
(1999).
Defendant’s objections that Mr. Berryman has no experience with surface
preparation and painting application standards set forth by the SSPC, overseas contracts,
Navy contracts, and climbing towers do not speak to the topics about which Mr. Berryman
intends to testify. The matters in this case are not as limited as Defendant has cast them

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in its motion in limine. The applicability of and compliance with SSPC standards are
certainly not the only relevant issues in this lawsuit. The court finds that opinions about
billing practices in the commercial construction industry, construction industry practices
relating to payment to subcontractors, and construction industry standards concerning
dealing with construction delays and changes in scope of work are relevant to the issues
raised in the Complaint.

In addition, under the applicable law concerning contract

interpretation, 15 Okla. Stat. § 161, the technical words of a contract are “interpreted as
usually understood by persons in the profession or business to which they relate,” thus the
industry meaning of technical terms employed in the contract are also relevant.
The court finds that, with over 38 years of experience as a general contractor, Mr.
Berryman is one qualified as an expert on these topics by reason of his knowledge and
experience. Defendant’s objections address the weight of Mr. Berryman’s testimony, but
not Mr. Berryman’s qualifications to testify under Rule 702.
Defendant argues that Mr. Berryman’s proposed testimony fails to meet the reliability
factors contained in Rule 702 and Daubert v Merrell Dow Pharmaceuticals, Inc., 509 U.S.
579 (1993) and its progeny. According to Defendant, Mr. Berryman’s testimony is not
based on industry standards. This assertion is predicated on Mr. Berryman’s lack of
knowledge about SSPC standards. However, as Plaintiff explained, Mr. Berryman’s
Proposed testimony does not relate to SSPC standards. Rather, as previously stated, Mr.
Berryman’s testimony addresses the industry meaning of technical terms employed in the
contract, billing practices in the commercial construction industry, construction industry
practices relating to payment to subcontractors, and construction industry standards
concerning dealing with construction delays and changes in scope of work. These are
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matters not within the knowledge of the average juror and are topics upon which expert
testimony will be helpful. The court finds that Mr. Berryman’s proposed testimony meets
the applicable standards of reliability.
To the extent Mr. Berryman’s expert report can be read to suggest that he will be
rendering any opinions other than about the industry meaning of technical terms employed
in the contract, billing practices in the commercial construction industry, construction
industry practices relating to payment to subcontractors, and construction industry
standards concerning dealing with construction delays and changes in scope of work, such
topics are beyond what Plaintiff represents as the purpose of Mr. Berryman’s testimony.
Mr. Berryman’s testimony will be limited to the topics listed.
Conclusion
Defendant Sitemaster, Inc.’s Motion in Limine to Exclude Plaintiff’s Expert Michael
Berryman, [Dkt. 27], is DENIED.
SO ORDERED this 31st day of October, 2016.

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