RHOADS INDUSTRIES, INC. et al v. TRITON MARINE CONSTRUCTION CORP.

Filing 222

MEMORANDUM AND/OR OPINION. SIGNED BY MAGISTRATE JUDGE DAVID R. STRAWBRIDGE ON 9/2/22. 9/2/22 ENTERED AND COPIES E-MAILED.(mbh)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
RHOADS INDUSTRIES, INC., et al

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:
v.
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:
SHORELINE FOUNDATION, INC., et al :

CIVIL ACTION

RHOADS INDUSTRIES, INC., et al

CIVIL ACTION

v.
TRITON MARINE CONSTRUCTION
CORP.

NO. 15-921

:
:
:
:
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:

NO. 17-266

MEMORANDUM OPINION
DAVID R. STRAWBRIDGE
UNITED STATES MAGISTRATE JUDGE

September 2, 2022

Presently before the Court are Defendants’ Triton Marine Construction Corp. (“Triton”),
Shoreline Foundation Inc. (“Shoreline”), and TranSystems Corp. (“TranSystems”) (collectively
“Defendants”) Joint Motions in Limine. (Dkt. 17-266, Docs. 209, 210, 211, 212); (Dkt. 15-921,
Docs. 187, 188, 198, 190, 191, 192.) Plaintiffs Rhoads Industries, Inc. and Rhoads Marine
Industries, Inc. (collectively “Rhoads” or “Plaintiff”) filed Responses in Opposition to Defendants’
Motions (Dkt. 17-266, Docs. 213, 214, 215); (Dkt. 15-921, Docs. 202, 203, 204, 205, 206, 207),
to which Defendants filed respective Replies. (Dkt. 17-266, Docs. 219, 217, 218); (Dkt. 15-921,
Docs. 228, 229, 216, 217, 218, 219.) Plaintiff also filed Motions in Limine, (Dkt. 15-921, Docs.
193, 194, 195, 196, 197, 198, 199, 200), to which Defendants filed Responses in Opposition, (Dkt.
15-921, Docs. 215, 211, 209, 212, 213, 210), and Plaintiff filed respective Replies. (Dkt. 15-921,
Docs. 221, 222, 223, 224, 225, 226.)
1

I.

BACKGROUND
As the parties are familiar with the relevant facts and circumstances underlying these

motions, we provide here only a brief statement of background information. Rhoads commenced
these actions against Triton, Shoreline, and TranSystems following upon their completion of repair
and renovation work for the United States Navy (“Navy”) at the Philadelphia Naval Shipyard.
Rhoads alleges claims of negligence related to Defendants’ construction activity, principally
asserting that Defendants’ pile driving caused subsidence at Rhoads’s neighboring property, which
impaired the condition of its dry dock (“Dry Dock 2”), among other structures.
The parties have completed discovery and a trial date has been set for January 18, 2023.
(Dkt. 15-921, Doc. 231.) On July 2, 2021, we issued a decision resolving the parties’ respective
Daubert challenges to the admissibility of expert opinions. (Dkt. 15-921, Doc. 150.) On March 1,
2022, and March 10, 2022, we issued decisions resolving the parties’ motions for summary
judgment. (Dkt. 15-921, Docs. 180, 182.) The parties now move to exclude or otherwise limit
certain evidence from the jury’s consideration at trial. In this omnibus opinion, we address
separately the questions raised in the parties’ seventeen total motions in limine. For the following
reasons, Defendants’ motions are denied, and Plaintiff’s motions are granted, subject to the
exceptions and conditions articulated below.
II.

LEGAL STANDARD
Federal courts are guided by the Federal Rules of Evidence in determining the admissibility

of evidence at trial. See Fed. R. Evid. 101, 102. We note that “[t]he admission or exclusion of
evidence is a matter particularly suited to the broad discretion of the trial judge.” In re Merritt
Logan, Inc., 901 F.2d 349, 359 (3d Cir. 1990); see also Sprint v. Mendelsohn, 552 U.S. 379, 384
(2008) (“A district court is accorded a wide discretion in determining the admissibility of evidence

2

under the Federal Rules.”). In the event that any of these motions raise substantive legal questions
for our consideration, we will apply Pennsylvania law.
Several of the parties’ motions in limine involve arguments about the relevancy or the
prejudicial effect of certain evidence. As a general matter, Federal Rules of Evidence 401 and 402
govern the admissibility of “relevant” evidence. Evidence is relevant if: “(a) it has any tendency
to make a fact more or less probable than it would be without the evidence; and (b) the fact is of
consequence in determining the action.” Fed. R. Evid. 401; see also Fed. R. Evid. 402 (“Irrelevant
evidence is not admissible.”). Federal Rule of Evidence 403 allows the court to exclude relevant
evidence when the “probative value” of that evidence is “substantially outweighed by a danger of
one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue
delay, wasting time, or needlessly presenting cumulative evidence.” Fed. R. Evid. 403. To the
extent that the parties raise additional, more tailored, arguments as to the admissibility of evidence
in accordance with other Federal Rules of Evidence, we address those specific arguments below.
III.

DISCUSSION
We first discuss Defendants’ motions, which broadly seek the exclusion of evidence related

to pile driving and vibration monitoring standards, Plaintiff’s standing to sue, and Plaintiff’s
claimed damages. We then examine Plaintiff’s motions, which generally seek the exclusion of
evidence related to the Navy’s involvement in this litigation and past insurance or settlement
recovery. Plaintiff also requests we take judicial notice of certain government documents.
A. Defendants’ Motions in Limine
Defendants have submitted nine motions in limine for our consideration, seeking to
preclude the following evidence: (1) “Use of the Number of Refusal/Hard Hits Relative to the
Hammer Manufacturers’ Warranties” (Dkt. 17-266, Doc. 209); (2) “Testimony Regarding

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Whether Defendants Should Have Performed Additional Vibration Area Studies” (Dkt. 17-266,
Doc. 211); (3) “Certain Financial Damages Testimony Regarding Categories of Damages
Attributable to Each Sinkhole” (Dkt. 17-266, Doc. 212); (4) “Claim for Damages Related to
Replacement and/or Repair of Pumps and Other Equipment” (Dkt. 15-921, Doc. 187); (5) “Lay
Testimony Regarding Dry Dock Qualifications for Certifications and the Impact of Sinkholes on
the Certification Process” (Dkt. 15-921, Doc. 188); (6) “Additional Evidence Related to the
Alleged Assignment Between Plaintiffs and PAID” (Dkt. 15-921, Doc. 189); (7) “Plaintiff’s
Damages Due to Plaintiff’s Failure to Mitigate Damages” (Dkt. 15-921, Doc. 190); (8) “Plaintiff’s
Damages to the Lesser of Cost of Repair and the Diminution to the Fair Market Value of the
Property” (Dkt. 15-921, Doc. 191); and (9) “Plaintiff’s Damages as to Alleged Loss of Navy
Projects.” (Dkt. 15-921, Doc. 192.) After reviewing Defendants’ arguments, all nine of its motions
are denied, notwithstanding any exceptions or conditions articulated below.
i. Preclude Testimony Regarding the Use of the Number of Refusal/Hard
Hits Relative to the Hammer Manufacturers’ Warranties (Dkt. 17-266,
Docs. 209, 210, 213, 219) 1
Defendants argue that we should exclude the testimony of Plaintiff’s liability engineering
expert, Edward Garbin (“Garbin”), as they claim he improperly utilized the hammer
manufacturers’ warranty standard in his professional assessment of Defendants’ pile driving
activity. (Doc. 210-1 at 5.) Defendants assert that this evidence is not admissible at trial, as the
hammers’ manufacturer’s warranty standard is apparently “not an accepted standard by any
controlling organization or the U.S. Navy as to what the contractors were to comply with while

1

Defendants requested via praecipe that the Clerk’s Office substitute Doc. 210 for Doc. 209 due
to an error in its original submission. Accordingly, we refer to arguments made only Doc. 210,
which contains Defendants’ substituted version.
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performing their scope of work.” (Id. at 11.) Specifically, Defendants contend that Garbin conflates
the manufacturers’ warranty standard with a general industry safety standard, even though he
acknowledged in his report that these standards can vary from project to project. (Id. at 9-11.)
Accordingly, “any testimony by Garbin on this issue should be barred[,]” as his expert opinion is
allegedly “not substantiated” by “a standard that does not exist” and therefore runs afoul of Federal
Rule of Evidence 702. 2 (Id. at 13, 15.) Defendants also argue that, if we exclude Garbin’s
testimony, we must also exclude Plaintiff’s damages claims entirely, as “[a]bsent such expert
testimony, Rhoads cannot prevail at trial on these damages claims and preclusion of these claims
is appropriate.” (Id. at 15.)
Having reviewed Defendants’ current arguments in conjunction with our previous decision
as to the qualification, reliability, and “fit” of Garbin’s testimony, we are satisfied that this
evidence is admissible. At the outset, we agree with Rhoads’s characterization of Defendants’
motion as “a Daubert motion disguised as a motion in limine.” (Doc. 213 at 1.) As Plaintiff has
highlighted in its response briefing, we have already considered arguments by the parties as to the
admissibility of Garbin’s opinion and reviewed the sources upon which he relied in forming that
opinion. We confirmed in our prior Daubert decision that Garbin will be permitted to testify at
trial as to the “practical refusal criteria” he believes Defendants should have established, as well

2

Federal Rule of Evidence 702 reads: 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. This standard has
also been articulated in, and applied in accordance with, Daubert v. Merrell Dow Pharm., 509 U.S.
579 (1993).
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as the materials he utilized to arrive at his conclusions—including the hammer manufacturers’
warranties:
In his report, Garbin discussed practical refusal at length and opined
that Defendants should have established “practical refusal criteria”
for their projects. Practical refusal criteria are standards that reflect
the number of hammer blows required to drive a pile a given
distance into the soil. Where a pile has been driven sufficiently deep
into the soil such that it requires an excessive number of blows to
move it a small distance deeper, practical refusal has been reached.
The precise standard for defining radical refusal may vary for each
individual project, but there are “several sources typically reference
as industry standards.” When practical refusal is reached, “pile
driving should be stopped to avoid damage and safety issues.”
Here, Garbin opines that Defendants should have established and
adhered to practical refusal criteria. He explained that the hammers
that Defendants were using to drive piles came with manufacturerspecified practical refusal criteria, and that Defendants drove piles
beyond the accepted safe point established by those criteria,
resulting in what [Garbin] refers to as “hard driving.’”
⸳⸳⸳
We acknowledge Garbin’s testimony that the practical refusal
concept may focus upon equipment damage and worker safety, but
that does not necessarily preclude its consideration here. […] At the
outset, we accept Defendants’ argument that practical refusal
criteria are not relevant to a factual dispute in this case to the extent
they are solely meant to protect workers and pile driving equipment.
We further acknowledge Garbin’s deposition testimony that
practical refusal criteria have only two purposes: to protect workers,
and to prevent damage to equipment. However, we also observe that
in his report, Garbin opined that “pile driving over the practical
refusal limit is considered excessive and damage to the equipment,
the piles, and/or the surroundings may result.” Therefore, to the
extent that Garbin opines that exceeding practical refusal criteria
poses a risk to areas surrounding the pile driving activity, that
testimony has the potential to assist the trier of fact.
Taken together, we conclude, in the exercise of our “broad
discretion,” that Garbin’s testimony regarding practical refusal
criteria is not precluded to the extent that he opines that exceeding
such criteria poses a risk to the soil and surrounding areas. We find
that this testimony could well assist the jury in understanding the
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evidence in this case and determining facts at issue. Accordingly,
we decline to grant Defendants’ motion as to Garbin’s testimony.
(Dkt. 15-921, Doc. 150 at 21-23) (internal citations omitted) (alterations in original).
In conclusion, we have already determined that Garbin is a qualified expert under the
standards set out by Daubert; we will not reconsider our previous determination as to the
admissibility of Garbin’s opinion under Rule 702, nor will we reexamine the bases upon which
Garbin’s opinion relies. Garbin will presumably be presented and cross-examined before the jury
at trial, at which point the Defendants will have the opportunity to raise the challenges to Garbin’s
opinion they have articulated here. For the above-stated reasons, and with deference to our prior
Daubert decision, Defendants’ motion is denied as to this issue.
ii. Preclude Testimony Regarding Whether Defendants Should Have
Performed Additional Vibration Area Studies (Dkt. 17-266, Docs. 211,
214, 217)
Defendants next seek to exclude any “expert opinion that that Defendants should have
recommended vibration monitoring or more expansive vibration monitoring to the Navy.” (Doc.
211 at 12.) Specifically, Defendants point to the report offered by Plaintiff’s causation expert,
David Wilshaw (“Wilshaw”), as lacking “any scientific or empirical testimony or data to support
the opinion that pile driving caused damage to the dry dock.” (Id.) They assert that “Wilshaw
cannot establish that pile driving conducted on adjacent Naval property resulted in readings that
exceed the safe levels for the pile driving to structures, [and] it follows that Wilshaw is unable to
opine that a certain type of vibration monitoring or any vibration monitoring would have recorded
the requisite levels of concern.” (Id. at 12-13) (emphasis in original). Defendants also claim that
Wilshaw’s testimony on this issue is inappropriate due to the fact that the parties were never
required by contract, or otherwise expected, to perform such testing for the Navy. (Id. at 13-14.)
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As Wilshaw apparently “offers unsubstantiated opinions, without any factual basis, that further
vibration monitoring should have been recommended[,]” Defendants claim that his testimony
would violate Rule 702. (Id. at 16-17.) Additionally, Defendants challenge the admissibility of
Garbin’s testimony on vibration monitoring, similarly claiming that Garbin’s testimony is not
admissible, as “Plaintiff is unable to cite a basis for [Garbin’s] opinion.” (Doc. 211 at 14.)
We cannot ascertain why Defendants filed a motion to preclude testimony by Wilshaw that
we have already deemed precluded. Nor can we understand why they seek to preclude testimony
by Garbin that we have already deemed admissible. Indeed, Defendants presented these exact same
arguments for our review over a year ago, which we analyzed and subsequently resolved in our
Daubert decision. 3 We reiterate our previous holding as to the admissibility of vibration
monitoring testimony by both Wilshaw and Garbin:
Wilshaw has not offered the opinion Defendants seek to preclude.
Indeed, while Defendants assert that Wilshaw opined that they
should have recommended vibration monitoring “in his reports,”
they provide no citation as to where in his reports he is supposed to
have offered this opinion. Further, Rhoads clarifies in its response
that only its other causation expert, “Dr. Garbin, not Mr. Wilshaw,
opined about recommending vibration monitoring.” Moreover, our
review of Wilshaw’s reports and deposition testimony further
confirmed that no opinions as to whether Defendants should have
recommended vibration monitoring are contained therein. To the
contrary, to the extent that whether Defendants “should have”
recommended vibration monitoring bears on the standard of care,
Wilshaw expressly stated that he does not intend to offer any such
opinion[.]
⸳⸳⸳
Accordingly, Defendants’ motion is granted on the narrow point that
Wilshaw is precluded from offering an opinion that Defendants

3

It bears noting that, as Plaintiff pointed out in its response briefing, Defendants “literally copied
and pasted nearly the entirety of their Daubert motion to preclude David Wilshaw into this Motion
[in limine].” (Doc. 214 at 1.)
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should have recommended vibration monitoring or expanded
vibration monitoring by the Navy.
⸳⸳⸳
We find that Garbin’s opinion as to whether Defendants should have
recommended vibration monitoring is reliable. First, we have
discussed at length above that Garbin has “good grounds” for his
opinion that vibrations from the pile driving reached the dry dock.
Therefore, Defendants’ argument that Garbin should be precluded
from testifying that vibration monitoring should have been
performed must fail to the extent it is predicated solely on an alleged
lack of evidence that vibrations would have reached the dry dock.
Moreover, even setting aside the question of whether vibrations
reached the dry dock, we find that Garbin has “good grounds” for
his opinion that more expansive vibration monitoring should have
been recommended. In support of this opinion, Garbin considered
the Federal Highway Administration’s “Design and Construction of
Driven Pile Foundations” publication, which “warns that the
distance [for continual vibration monitoring] should be increased to
500 feet for ‘older structures, structures or utilities in poor condition,
or highly vibration sensitive equipment.’” In light of this guidance,
Garbin further considered the “age, condition and sensitivity of the
structures and utilities near the work area,” in concluding that
“TranSystems, Shoreline, and Triton had an obligation
to…complete…continual vibration monitoring.” Garbin’s opinion
is thus based upon more than what Defendants characterize as his
subjective beliefs or conjecture. We therefore conclude, in
accordance with the liberal admissibility standards embodied in
Fed.R.Evid. 702, that Garbin has “good grounds” for his opinion
which could be seriously tested by the adversary process.
(Doc. 150 at 19-20, 28-30) (internal citations omitted) (alterations in original).
In sum, we already determined that Wilshaw is not permitted to offer affirmative testimony
regarding vibration monitoring at trial, as he did not purport to offer any opinion on this issue in
his expert report. In a footnote, we clarified that our determination “does not necessarily foreclose
the possibility that Wilshaw could be permitted to offer rebuttal testimony on this subject in the
event that Defendants’ experts’ testimony opens the door to it, pursuant to Fed.R.Evid. 703. (Doc.
150 at 30, n.4) (citing Hill v. Reederei F. Laeisz G.M.B.H., Rostock, 435 F.3d 404, 423 (3d Cir.

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2006)). Our decision on the admissibility of Wilshaw’s testimony, including this caveat, has not
changed. We also determined that Garbin’s opinion on vibration monitoring is reliable and
therefore admissible. Accordingly, to the extent Defendants seek to challenge Garbin’s testimony
on this issue, they may do so on cross-examination. For the above-stated reasons, and with respect
to our previous decision determining the admissibility of expert testimony on vibration monitoring,
Defendants’ motion is denied. 4
iii. Preclude Certain Financial Damages Testimony Regarding Categories
of Damages Attributable to Each Sinkhole (Dkt. 17-266, Docs. 212, 215,
218)
Defendants also challenge the admissibility of testimony by Plaintiff’s financial damages
expert, Gregory Cowhey (“Cowhey”), “regarding specific categories of damages attributed to each
sinkhole due to lack of foundational support” on the basis that “he is unqualified to give an opinion
on causation.” (Doc. 212 at 3.) Defendants assert that, “while [Cowhey] may offer financial
opinions that at a certain time period, damages increase, or state [his calculations], or what the
damages were, he cannot offer opinions or any testimony as to categories of damages attributable
to each sinkhole.” (Id. at 15) (emphasis added). Defendants appear to contest the allocation of
damages that Cowhey assigned to each sinkhole in his expert report. In doing so, Defendants claim
that Cowhey’s expert opinion also impermissibly crosses into an unsubstantiated expert opinion

4

In their reply brief, Defendants clarify that they “seek broader relief to preclude any and all
testimony regarding whether [D]efendants should have performed additional vibration monitoring
[…] [t]his not only includes any testimony by Wilshaw, including rebuttal testimony, as well as
by any other witness that may testify at the time of trial.” (Doc. 217 at 1-2) (emphasis added). To
the extent a lay witness, or an expert which we did not approve at the Daubert stage to testify on
this issue, seeks to offer any statement beyond the scope of their knowledge or expertise, we will
entertain an objection on this basis at trial.
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on causation, which Defendants contend is outside the scope of Cowhey’s financial expertise. (Id.
at 13-15.)
Once again, Defendants attempt to subvert the conclusions made in our prior Daubert
decision by challenging the admissibility of expert testimony with a motion in limine. We
emphasize our previous holding on the admissibility of Cowhey’s testimony:
First, it is clear that Cowhey does not purport to offer any opinions
as to causation, despite Defendants assertions otherwise. To be sure,
his damages report is predicated on the assumption that Rhoads will
prevail on issues of liability, including causation. […] Operating
under that assumption, however, is not tantamount to offering an
opinion as to causation. In fact, “[a]ll damages expert opinions are
dependent…on the assumption that liability has been proven.”
⸳⸳⸳
Specifically, Defendants take issue with Cowhey’s assumption that
nearly all of the repair costs resulted from the second sinkhole,
which occurred following Triton’s pile driving activities, as opposed
to from the first sinkhole, which appeared after TranSystems’ and
Shoreline’s pile driving. They contend that his opinion as to these
costs unreliably fails to account for damage that was present prior to
any pile driving, and fails to separate damage that allegedly occurred
from TranSystems’ and Shoreline’s pile driving, thereby pinning the
entire cost on Triton.
Here again, Defendants seem to have blurred the line between
Cowhey’s assumptions as to causation and his opinions as to
damages. Indeed, Cowhey himself does not opine as to whether the
first or second sinkhole caused specific damage to Rhoads’ property.
Rather, his opinion rests on “an assumed set of facts” (i.e., that the
majority of the cost of repairs resulted from the second sinkhole), as
is permissible, “so long as those assumed facts are reasonably based
on the evidence in the record.” Here, the facts upon which Cowhey’s
opinion relies are clearly based on evidence in the record. In fact,
his calculations as to repair costs are directly based on Rhoads’
actual, dated invoices for the repair activities, which are appended
to his report, as well as his interviews with Rhoads management.
⸳⸳⸳

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Given the foregoing, we conclude that Cowhey’s opinion regarding
the cost of repairs rests on a sufficient factual basis to support its
admissibility and that any deficiencies can be explored on cross
examination.
(Doc. 150 at 65, 71-72) (internal citations omitted).
After reviewing our previous decision, it appears we have already determined that Cowhey
does not impermissibly offer causation evidence, nor does he improperly attribute certain damages
to the sinkholes. Defendants concede that the admissibility of Cowhey’s expert opinion was
previously litigated: “While it is true that Cowhey was not precluded as an expert outright at [the
Daubert stage], Defendants are entitled to seek relief in the form of a motion in limine to narrow
the scope of his testimony.” (Doc. 218 at 1.) We do not disagree that Defendants may seek to limit
an approved expert’s testimony, especially if portions of that testimony are likely to be irrelevant,
misleading, or otherwise prejudicial. Defendants here, however, have simply failed to articulate
how or why Cowhey’s testimony should be narrowed. In fact, their suggested scope of
“narrowing” seems to eviscerate Cowhey’s expert opinion entirely, as they admittedly “seek to
preclude any and all testimony by Cowhey regarding financial damages[.]” (Id. at 2) (emphasis
added). We will not reconsider our previous decision as to Cowhey’s admissibility as a financial
damages expert. To the extent Defendants contest Cowhey’s methods and opinions, they will be
free to challenge him at trial on cross-examination. For the above stated reasons, and with regard
to our prior Daubert decision on this issue, Defendants’ motion is denied.
iv. Preclude a Claim for Damages Related to Replacement and/or Repair
of Pumps and Other Equipment (Dkt. 15-921, Docs. 187, 202, 228)
In anticipation of a possible claim by Rhoads for damages related to the “replacement
and/or repair of pumps and other equipment for Dry Dock 2,” Defendants assert that no evidence
has been produced in this case that would support such a claim, and so the claim must be precluded.
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(Doc. 187 at 8.) Defendants acknowledge that Plaintiff’s corporate designee, Robert Orbaugh
(“Orbaugh”), testified about “an increased amount of mud, dirt, and debris in the area of Dry Dock
2, and the use of dumpsters and maintenance pumps to address these issues.” (Id. at 6.)
Specifically, Orbaugh asserted that the maintenance pump now runs “24/7” and that several
dumpsters are used each year to remove debris from Dry Dock 2. (Id.) In spite of this evidence,
Defendants claim that Orbaugh’s lay witness testimony would be “insufficient to support a claim
for damages […] because he has no specialized knowledge or technical personal knowledge
regarding [causation]” under Federal Rules of Evidence 602 and 701. 5 (Id. at 7.) Defendants
further contend that “[n]o expert report or testimony has been adduced […] that specifically
attributes an increased amount of debris to Defendants’ conduct in the area of the aged Dry Dock
2.” (Id.) According to Defendants, the record is devoid of any affirmative expert testimony
regarding damages related to the repair and replacement of maintenance pumps. (Id. at 7-8.) They
contend that awarding damages on this basis would be improper, and the claim should be excluded.
(Id.)
Contrary to Defendants’ assertion, and as set out by Rhoads in its response briefing, there
is sufficient expert testimony in the record to support a claim for damages related to the repair and
replacement of the maintenance pumps. Specifically, causation expert Garbin opined in his report
that, “existing cracks in the bottom slab [of Dry Dock 2] widened in response to vibrations from

5

Federal Rule of Evidence 602 reads in relevant part: “A witness may testify to a matter only if
evidence is introduced sufficient to support a finding that the witness has personal knowledge of
the matter. Evidence to prove personal knowledge may consist of the witness's own testimony.”
Fed. R. Evid. 602. Federal Rule of Evidence 701 reads: “If a witness is not testifying as an expert,
testimony in the form of an opinion is limited to one that is: (a) rationally based on the witness's
perception; (b) helpful to clearly understanding the witness's testimony or to determining a fact in
issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope
of Rule 702.” Fed. R. Evid. 701.
13

pile driving, allowing more water and sediment to flow through.” (Doc. 208-1, Pl. Ex. 1, Garbin
Rep. at 2.) Further, damages expert Cowhey attributed a monetary value to the cost of mud removal
and pump repair related to Dry Dock 2, as part of “extra expenses” arising out of the subsidence
allegedly caused by the sinkholes. 6 (Doc. 208-2, Pl. Ex. 2, Cowhey Rep. at 14.) We agree with
Rhoads that this record evidence “belies” Defendants’ assertion that Plaintiff’s claim for damages
related to the maintenance pumps is unsupported by expert opinion. (Doc. 202 at 4.) We also
remind Defendants that they challenged Cowhey’s calculation of these “extra expenses” with a
Daubert motion, and we rejected their arguments:
Defendants assert that Cowhey’s calculations resulted in figures that
are “overstated, inappropriate and/or unsupported.” They contend
that this deficiency results from “a lack of objective data,” for
example, regarding “the historical frequency and volume of mud
removal.” We find that this contention is without merit. As set out
above, Cowhey relied on documentation including invoices from
repair activities to determine expenses. To the extent that
Defendants dispute that data underpinning his calculations, they
have articulated a challenge to the weight of Cowhey’s opinions, not
their admissibility
(Doc. 150 at 72, n.13) (internal citations omitted) (emphasis added).
As to the admissibility of Orbaugh’s lay testimony on this issue, we do not disagree that
Orbaugh cannot opine on complex issues such as causation and damages calculations, which

6

Specifically, Cowhey itemized the damages as follows:
1. Mud Removal – The sinkholes caused “expansion cracks” in the floor of Dry Dock 2 which
allowed thousands of tons of dissolved clay and mud to migrate to the bottom of Dry Dock
2. The mud needs to be periodically removed from the Dry dock using cranes and caused
thousands of man hours to be expended for mud removal.
2. Dry Dock Pump Repair – The Dry Dock 2 de-watering pumps have incurred significant
costs related to repairs caused by the sinkholes. This was due to the heavy mud content of
the water being pumped out of Dry Dock 2 since January 2015.

(Doc. 208-2, Pl. Ex. 2, Cowhey Rep. at 14.)
14

require professional expertise. He may, however, testify as to his personal knowledge about the
condition of Dry Dock 2 and Rhoads’s maintenance activities. Indeed, we are satisfied that
Orbaugh’s own observations and experience with the continuous operation of the pumps would
fall squarely within the bounds of lay testimony permitted by Federal Rules of Evidence 602 and
701. 7 In fact, we previously addressed the propriety of Orbaugh’s lay testimony in the context of
reviewing Garbin’s opinion in our Daubert decision:
Garbin relied on the testimony of Rhoads’ then-Director of
Operations [Orbaugh], in which he “report[ed] a substantial increase
in the amount of mud (silt) accumulating in [the dry dock] that began
after the west side subsidence occurred, and that the water pumps
used to keep [the dry dock] dry had to be switched from intermittent
to continuous operation.” Orbaugh testified that he was responsible
for maintenance activities including “mud removal” and overseeing
the soil piping system. He further testified that, as part of his job
position, he was “on site every day,” and that the amount of mud
infiltrating the dry dock “increased considerably” following the pile
driving activities. Clearly, the amount of soil piping and mud
accumulation in the dry dock is within Orbaugh’s “competency and
personal knowledge,” and it was permissible for Garbin to consider
this testimony in combination with the other data he reviewed and
his knowledge and experience.
(Doc. 150 at 17-18) (internal citations omitted).
Finally, we disagree with Defendants’ position that “any” lay testimony would be
“insufficient” to support these claimed damages. (Doc. 187 at 8.) We see no reason why Orbaugh’s
testimony, in conjunction with Garbin and Cowhey’s, could not be considered by the jury in

7

In filing this motion, Defendants assume that Orbaugh will offer, or that Plaintiff will solicit,
improper lay testimony as to causation or damage calculations. This objection is premature. If
Orbaugh attempts to testify to matters outside the scope of his personal knowledge at trial, we will
then entertain an objection by Defendants on that basis. To the extent Plaintiff intends to introduce
“additional trial witnesses with firsthand knowledge of the increase in debris and mud following
Defendants’ activities and the required pump repairs,” lay testimony similar to that of Orbaugh’s
will likely be permitted so long as it stays within the parameters of Federal Rule of Evidence 701.
(Doc. 202 at 6.) That said, we withhold any decision on the admissibility of testimony from these
“additional trial witnesses” until they have been formally identified and presented to the Court.
15

determining the valuation of these losses. For these reasons, we are satisfied that there is sufficient
evidence, in the form of both lay observation and expert opinion, to support Plaintiff’s claim for
damages related to the replacement or repair of the pump equipment. Defendants’ motion is denied.
v. Preclude Lay Testimony Regarding Dry Dock Qualifications for
Certifications and the Impact of Sinkholes on the Certification Process
(Dkt. 15-921, Docs. 188, 203, 229)
Next, Defendants seek to preclude any lay testimony regarding Plaintiff’s “alleged inability
to obtain certain dry dock certifications because of subsidence issues in the area of Dry Dock 2.”
(Doc. 188 at 6.) Specifically, Defendants note that Daniel Rhoads (“Mr. Rhoads”) has offered past
testimony about special certifications that were sought or required for certain projects and were
ultimately not obtained. (Id.) Defendants claim that this lay testimony is the “predicate for
[Plaintiff’s] damages claim associated with the loss of use of Dry Dock 2 stemming from an alleged
lack of certain certifications that required Rhoads to forgo unspecified dry dock projects.” (Id. at
7.) We note that Mr. Rhoads previously attributed the lack of a Master Ship Repair Approval
(“MSRA”) certification to the subsidence issues around Dry Dock 2, which Cowhey then
considered when calculating Plaintiff’s damages. (Id.) Defendants contend that this testimony is
improper, as Mr. Rhoads “has limited knowledge regarding the pre-requisites for an MSRA
certification or any other certification standards in the dry-docking industry as it pertains to soil
conditions or otherwise.” (Id.) Defendants argue that, as Mr. Rhoads “lack[s] specialized
knowledge based on personal experience in the dry-docking industry,” he should not be permitted
to testify to “Dry Dock 2’s qualifications for certifications and the effect of sinkhole damage on
Rhoads’ ability to obtain certifications,” without violating Federal Rule of Evidence 702.

16

Defendants raised this very issue at the summary judgment stage, claiming that, as a
layperson, Mr. Rhoads’ testimony as to Dry Dock 2’s certification eligibility would be improperly
speculative and therefore insufficient to support a claim for “loss of use” damages. (Dkt 15-921,
Doc. 199 at 3.) In response to that argument, we held the following:
[A]lthough we have determined that Rhoads’s “loss of use”
calculations require expert assessment, we do not accept that certain
foundational information about Dry Dock 2’s past and current
certification eligibility, certification requirements in general, or
customs and practices in the dry-docking business, also require
expert testimony. As we explicitly stated in our Daubert decision
precluding Defendants’ proffered expert John Vitzthum
(“Vitzthum”), Dry Dock 2’s certification status does not require the
“opinion” of an expert: “[I]t is not an ‘opinion’ whether the dry dock
‘had any form of certification’ since 1994. It either did have
certifications or it did not.” In precluding Vitzthum, we commented
that much of the evidence as to Dry Dock 2’s certification history,
status, and eligibility could be introduced “with fact witnesses.”
We acknowledge that certain information about certifications or dry
docking may be outside of the average juror’s usual knowledge or
realm of experience. We also note that lay witnesses may offer
opinions on technical matters without qualifying as an expert under
Rule 702. See Asplundh Mfg. Div. v. Benton Harbor Eng'g, 57 F.3d
1190, 1201 (3d Cir. 1995). (“[A] lay witness with first-hand
knowledge can offer an opinion akin to expert testimony in most
cases, so long as the trial judge determines that the witness possesses
sufficient and relevant specialized knowledge or experience to offer
the opinion.”). Lay witnesses who are personally familiar with Dry
Dock 2’s certification history, who have personally carried out the
certification process, or who have experience within the drydocking industry, can sufficiently recount this information to a
factfinder.[8] In short, we agree that Rhoads will be able to establish
the appropriate background information for its “loss of use” damage
with lay testimony by qualified personnel who are acquainted with
the relevant facts.
[8] Specifically, Defendants claim that any lay testimony by
Rhoads’s corporate representative, Daniel Rhoads, is “self-serving”
and “based upon conjecture as opposed to the realities of bidding for
government contracts within the dry-docking industry.” On the
contrary, it seems likely to us that Daniel Rhoads, the owner and
CEO of Rhoads Industries, Inc., would be able to testify as to the
17

“realities” of the dry-docking industry, considering that industry is
the same one in which he operates his own business. Defendants
may address any concerns that Daniel Rhoads’s testimony may be
“self-serving” on cross-examination at trial.
(Dkt. 15-921, Doc. 182 at 10-11, 11, n.8) (internal docket citations omitted).
We acknowledge, as Defendants point out, that our prior “denial of summary judgment”
as to Plaintiff’s “loss of use” damages claim was not a definitive ruling on the admissibility of any
witness testimony on this issue. (Doc. 229 at 23.) Even so, we find that the reasoning from our
summary judgment decision is instructive here. Fact witnesses who have personal experience in
the dry-docking industry and the certification process, such as Mr. Rhoads, may offer lay testimony
regarding Dry Dock 2’s certification history, status, and eligibility in accordance with Federal
Rules of Evidence 602 and 701. To the extent that Mr. Rhoads, or any other lay witness, attempts
to testify at trial to matters that require professional expertise outside the scope of a layperson’s
understanding, we will entertain an objection to this testimony. For now, in accordance with our
previous summary judgment opinion, we affirm that lay testimony regarding Dry Dock 2’s past
and current certification eligibility, certification requirements in general, or customs and practices
in the dry-docking business, is admissible. Defendants’ motion is denied.
vi. Preclude Additional Evidence Related to the Alleged Assignment
Between Plaintiffs and PAID (Dkt. 15-921, Docs. 189, 204, 216)
Defendants next seek to prohibit Plaintiffs from offering “any additional evidence not
previously produced during discovery related to the alleged assignment between Plaintiffs and
PAID.” (Doc. 189-2 at 1). Defendants claim that the “only” evidence of an assignment offered by
Plaintiff during discovery was: “(1) correspondence between counsel for Rhoads and PAID dated
years after the alleged assignment was given; (2) the deposition testimony of Dan Rhoads; and (3)
a declaration from a representative of PAID authored years after the alleged assignment.” (Id. at
18

2.) Defendants correctly note that a party is required to produce all evidence that might be used to
support its claims or defenses during discovery, and a failure to comply with this requirement
precludes the use of that evidence at trial. See Fed. R. Civ. P. 26, 37. 8 Defendants assert that
Plaintiff did not disclose any other information beyond the three items cited here to support
Rhoads’s alleged assignment with PAID. (Doc. 189-2 at 3-4.) Defendants request that “Plaintiff
must be limited to only this evidence” and that we preclude Plaintiff from “offering any other
documentary or testimonial evidence that was not previously produced prior to summary
judgment,” on the basis that “new or additional documents would be highly prejudicial and
constitute unfair surprise to Defendants.” (Id.)
To be sure, we do not disagree with Defendants that a party’s failure to timely disclose or
supplement evidence precludes the use of that evidence at trial, and we are prepared to issue the
“automatic sanction” of preclusion when it is warranted. Fed. R. Civ. P. 37(c), Advisory
Committee’s Note to 1993 Amendment. We simply do not agree that such a sanction is justified
here, where Defendants have failed to specify what evidence Plaintiff did not disclose during
discovery or identify any improper or otherwise insufficient supplemental disclosures. Rather, they
offer vague and conclusory allegations that Plaintiff produced “only” three pieces of evidence to
prove the existence of its assignment with PAID, and that we should exclude “any other” evidence

8

Federal Rule of Civil Procedure 26 reads in relevant part: “A party must, without awaiting a
discovery request, provide to the other parties: all documents, electronically stored information,
and tangible things that the disclosing party has in its possession, custody, or control and may use
to support its claims or defenses, unless the use would be solely for impeachment. A party […]
must supplement or correct its disclosure or response […] if the party learns that in some material
respect the disclosure or response is incomplete or incorrect, and if the additional or corrective
information has not otherwise been made known to the other parties during the discovery process
or in writing.” Fed. R. Civ. P. 26(a),(e). Federal Rule of Civil Procedure 37 reads in relevant part:
“If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the
party is not allowed to use that information or witness to supply evidence on a motion, at a hearing,
or at a trial, unless the failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c).
19

that was not disclosed. (Doc. 189-2 at 3.) Defendants have not identified the “undisclosed”
evidence to which they are referring. We are not inclined to levy sanctions against Plaintiff based
on unspecified accusations, especially when we consider that Plaintiff vehemently contests these
claims. Rhoads asserts that it “complied with its discovery obligations” and “disclosed the
assignment between Rhoads and PAID during discovery.” (Doc. 204 at 4.) Plaintiff directs our
attention to evidence that it claims supports the existence of its assignment with PAID and was
disclosed to Defendants during discovery. 9 (Id. at 2, n.2.) We cannot discern, nor have Defendants
pointed us to, any factual basis for their assertion that Rhoads failed to disclose or supplement
evidence during discovery, or that Rhoads possesses only “three” pieces of evidence that would
prove its assignment with PAID. Defendants insist that they “are asking for a very simple in limine
ruling: if the document did not exist and was not produced by [the close of discovery], it is
inadmissible at trial.” (Doc. 216 at 3.) We will enter this “simple” ruling only if it is warranted

9

Regarding the “letter” and the “declaration” that Defendants previously identified, Plaintiff
specifies them as follows: “The “letter” is the correspondence from Andrew Gowa (Rhoads) to
Ilene Burak (PAID) dated May 29, 2019. […] The “declaration” is the sworn Declaration of Ilene
S. Burak, Esquire, Senior Vice President & General Counsel of Philadelphia Industrial
Development Corporation, dated October 21, 2021 […].” (Doc. 204 at 2, n.2.) Defendants also did
not articulate any reason to preclude Plaintiff from offering Daniel Rhoads’s deposition testimony
at trial, where appropriate. (Id. at 5.) Furthermore, Plaintiff explains that: “Defendants do not refer
to the other discovery Rhoads submitted in opposition to Defendants’ Standing Motion: (a)
deposition testimony by Robert Gorgone (corporate representative of PIDC/PAID) dated 12/11/19
(e.g., 88:21-24); (b) email from Robert Gorgone to the Navy dated 2/27/13; and (c) deposition
testimony by John P. Leggette (corporate representative of PAID) dated 12/11/19 (e.g., 19:1320:11)[.] Defendants also do not reference other discovery produced in this case, e.g., 12/30/2016
letter from A. Gowa (Rhoads) to I. Burak (PAID) (RhoadsEast138804-05), relating to the
assignment. It is unclear whether Defendants seek to preclude Rhoads from introducing all of this
permissible evidence which was already produced in discovery.” (Id.) Defendants have not raised
any particularized objections as to this specific evidence in their motion.
20

upon our examination of Defendants’ particularized claims. 10 For now, we will not issue a blanket
ruling as to the admissibility of as-yet unspecified evidence.
Moreover, we cannot imagine why, as Defendants contend, Plaintiff would need to present
evidence to prove its assignment with PAID at trial, as we have already determined that a valid
assignment exists. Defendants argue that at the summary judgment stage, we apparently “did not
hold that [an assignment] agreement [between Rhoads and PAID] exists” and that we “ruled that
the alleged assignment remains a question of fact.” (Doc. 189-2 at 2-3.) Accordingly, they assert
that because we “did not affirmatively rule that Rhoads had met its burden of proof that it has a
valid assignment from PAID[,]” Plaintiffs must prove the existence of the assignment at trial. (Doc.
216 at 2.) Defendants mischaracterize our previous holding. We concluded that Rhoads could

10

We take issue with Defendants’ request to exclude documents that “did not exist” by the close
of discovery, especially when we consider that Rule 26 provides an exception for the disclosure of
supplemental material that “has not otherwise been made known to the other parties during the
discovery process[.]” Fed. R. Civ. P. 26(e). Rhoads admits that it seeks to introduce at least one
piece of evidence that was disclosed beyond the discovery period: a letter from Andrew Gowa, a
representative of Rhoads, to Ilene Burak, a representative of PAID, dated November 1, 2021. (Doc.
208-6, Ex. 6, Levin Opp. Dec.) The contents of the letter outline the terms of the assignment with
PAID and reflect a confirmation of those terms by PAID on November 2, 2021. (Id.) Plaintiff
acknowledges that this evidence was produced beyond the discovery period but reports that it
provided Defendants with this document under its obligation to supplement per Rule 26(e). (Doc.
204 at 4-5.). Basic logic suggests that a letter written after the close of discovery could not possibly
have been disclosed during discovery. Given that it was unable to provide this document before it
was drafted on November 1, 2021, Plaintiff has represented that it otherwise provided this evidence
to Defendants in a timely manner in accordance with the requirements set out by Rule 26(e).
Facially, it appears that this information is “material” to the completeness of Plaintiff’s previous
disclosures regarding the assignment between PAID and Rhoads is therefore a proper supplement.
Fed. R. Civ. P. 26(e). At present, we also cannot ascertain how Defendants could have been
prejudiced by this late disclosure such that it would warrant the exclusion of the letter under Rule
37. Finally, we note that one of the “three” pieces of evidence Defendants seek to limit Plaintiff to
using is the sworn declaration of Ilene Burak, PAID’s representative, which was issued on October
21, 2021, after the close of discovery. By including this declaration in the “three” pieces of
evidence that Defendants identified as being properly disclosed, Defendants appear to have
conceded that this evidence is admissible, despite being produced after the discovery deadline.
21

survive a challenge of standing on summary judgment upon finding that, as a matter of law,
Rhoads and PAID executed a valid assignment:
[T]he terms of Rhoads’s lease agreement demonstrate that PAID, as
the lessor, bears the costs of repairing and replacing the property. It
follows that Rhoads has not suffered an “injury-in-fact” as to the
damage to the property itself, as Rhoads is not responsible for those
costs.
We cannot, however, end our inquiry as to Rhoads’s standing here.
The next question is whether PAID assigned the right to seek repair
costs for the damaged property to Rhoads. A legal assignment is “a
transfer or setting over of property, or of some right or interest
therein, from one person to another, and unless in some way
qualified, it is properly the transfer of one whole interest in an estate,
chattel, or other thing.” Consideration is not necessary to effect a
valid assignment, the only legal requirement is that “the assignor
must at the time of the assignment have a present intent to transfer
or divest himself of his rights.” As evidence of PAID’s assignment,
Rhoads points to a letter written and signed by a representative of
PAID on May 29, 2019. The letter specifically states: “This [letter]
will also confirm our agreement made shortly after the discovery of
the ‘sink-hole’ or subsidence damage that PAID authorizes Rhoads
to assert and prosecute the claims and litigation with respect to those
damages.” Defendants hotly contest the validity of this assignment,
arguing that PAID did not exercise a “present intent” to transfer its
right to sue, as the letter was signed approximately 4 years after
Rhoads filed this litigation.
In our view, Rhoads has clearly demonstrated that PAID divested
itself of its right to seek repair costs for the property damage and
then transferred that right to Rhoads. Rhoads has presented
deposition testimony evidence from its own corporate
representative, as well as statements by PAID’s representative,
which confirm that the parties made an informal agreement that
assigned PAID’s right to seek property damages to Rhoads.
⸳⸳⸳
Thus, it appears that the May 29, 2019 correspondence between
Rhoads and PAID is merely a written memorialization of PAID’s
previously-exercised “present intent” to assign.[15]
We accept that Rhoads received a valid assignment of PAID’s right
to pursue claims related to the damage of PAID’s property. Thus,
22

we are satisfied that Rhoads has sufficiently set forth “specific facts”
to demonstrate an “injury-in-fact,” as is required to survive a
challenge of standing on summary judgment. That is, Rhoads will
incur the costs of repair or replacement to the leased premises and
has thereby suffered a “palpable and distinct harm” as it relates to
its interest in the property. Accordingly, summary judgment is
denied as to this issue.
[15] Defendants claim that this oral assignment involved a transfer
of an interest in property and is therefore subject to the Statute of
Frauds. Under Pennsylvania law, the Statute of Frauds requires that
“a lease of real property for a term of more than three years must be
made in writing and signed by the parties.” The assignment of a right
to sue, however, is not a transfer of property. In any event,
representatives for Rhoads and PAID have “admitted under oath that
a contract was formed,” and therefore satisfied an exception to the
Statute of Frauds.
(Doc. 182 at 20-23, n.15) (internal citations omitted).
We acknowledge that “the standard for determining standing is not static,” and that
“elements of Article III standing must be supported in the same way as any other matter on which
the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the
successive stages of litigation.” Pennsylvania Prot. & Advoc., Inc. v. Houston, 136 F. Supp. 2d
353, 360 (E.D. Pa. 2001) (citing Bennett v. Spear, 520 U.S. 154, 167 (1997)). At the summary
judgment stage, the plaintiff must “set forth by affidavit or other evidence specific facts” to
demonstrate standing, and “at the final stage, those facts (if controverted) must be supported
adequately by the evidence adduced at trial.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992)
(emphasis added) (internal citations and quotation marks omitted). Defendants are, of course,
within their right to challenge Plaintiff’s standing at trial, at which point Plaintiff will be subject
to the appropriate standard of proof. But in light of our previous determination that PAID assigned
its right to sue to Rhoads, we fail to see how Defendants could succeed on such a challenge. We
remind Defendants of a basic legal principle we laid out in our summary judgment decision: “In

23

Pennsylvania, contract construction and interpretation are questions of law for the court to decide.”
(Doc. 182 at 18) (quoting Profit Wize Marketing v. Wiest, 812 A.2d 1270, 1274 (Pa. Super. 2002)).
To be clear, our determination as to Rhoads’s standing at the summary judgment stage was
predicated upon our legal finding that it executed a valid assignment with PAID. Despite
Defendants’ assertion that it would not have been “appropriate” for us to enter “affirmative relief”
on this issue on summary judgment (Doc. 216 at 2), we rely on our neighboring district to explain
a court’s role in this regard:
Defendant's main contention, that the determination of whether the
agreement constituted an assignment […] is a jury question, is not
well founded in the law; particularly in light of defendant's
admissions. […] [T]he general rule has been that the interpretation
of a writing is for the court and such interpretation has largely been
withdrawn from the jury. […] Defendant has conceded that there are
no extrinsic facts or oral testimony that conflict with or place in issue
any of the terms of the contract. What defendant disagrees with is
the classification of the agreement[.] As pointed out above,
however, under these circumstances the determination of whether
the agreement is [an] assignment is purely a question of law to be
determined by the court and is not a jury question. Admittedly, the
court's determination is based upon facts, but these facts are clear
and uncontested. […] The only question to be resolved in the instant
case is a question of law to be determined from uncontested facts.
Capital Blue Cross v. Paid Prescriptions, Inc., 496 F. Supp. 223, 225-27 (M.D. Pa. 1980) (internal
citations omitted.)
The circumstances present in Capital Blue Cross were identical to those before us on
summary judgment. We did not detect any genuine or material factual disputes as to the formation
of the assignment between Plaintiff and PAID. As we stated in our summary judgment decision,
Defendants “hotly contest[ed] the validity of this assignment,” but the parties did not contest the
events underlying the execution of the agreement. (Doc. 182 at 21) (emphasis added). Indeed,
Defendants relied on various legal arguments challenging the legitimacy of the assignment,

24

maintaining that PAID’s 2019 letter did not reflect a “present intent” to transfer its right to sue,
and that any oral agreement between the parties was unenforceable under the Statute of Frauds.
(Id. at 21-22.) As explained for the reasons recounted above, we rejected those arguments. (Id.)
Accordingly, it was proper for us to decide “a question of law” from “uncontested facts.” Capital
Blue Cross, 496 F. Supp. at 227. The fact that Defendants disagree with our legal characterization
of Plaintiff and PAID’s agreement as an “assignment” is not reason enough to allow them to
challenge that characterization before a jury at trial, and Defendants will be precluded from doing
so. We do not dispute that Defendants may challenge Plaintiff’s standing at trial, as it is a
“jurisdictional requirement that can be raised at any time by any party, or by the court sua sponte.”
(Doc. 182 at 16) (citing Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 280 (3d Cir. 2014)). That
said, we do not accept that any “facts” remain “controverted” such that Defendants could succeed
on this issue at trial, as our finding that an assignment exists between Rhoads and PAID will not
be extinguished. 11 Lujan, 504 U.S. at 561. For these reasons, Defendants’ motion is denied.

11

In opposition to Plaintiff’s motion to “Preclude Evidence of the 2021 Navy Project and the
October 28, 2021 Site Visit” (Doc. 193), which we discuss further below, Defendants argue that,
“should the Court find that a valid assignment exists, then Rhoads stands in the shoes of the
PAID/City and any work done and authorized by the City (i.e. the 2021 pile driving project) is
now certainly admissible as against PAID/City of Philadelphia[.]” (Doc. 215-1 at 14.) Defendants
fundamentally misunderstand the function of an assignment. An assignment is “a transfer of [a
right] from one person to another, and unless in some way qualified, it extinguishes the assignor's
right to performance by the obligor and transfers that right to the assignee.” Emps. Ins. of Wausau
v. Com., Dep't of Transp., 865 A.2d 825, 830 (Pa. 2005). In this case, we found that PAID
transferred its lawful right to sue Defendants for property damage to Rhoads, which “extinguished”
that particular right as to PAID. Although Plaintiff can now enforce this specific right on behalf of
PAID, PAID has otherwise not been released from its burdens and obligations as the property
owner, and Rhoads has not been substituted for PAID in connection with any of PAID’s other
responsibilities at the Philadelphia Naval Yard. The rights and benefits of a contract may be
transferred by an assignment, but the obligations, burdens, and liabilities of a contract may only
be transferred upon a novation. Compare Restatement (Second) of Contracts § 317 (1981) (“An
assignment of a right is a manifestation of the assignor’s intention to transfer it by virtue of which
the assignor's right to performance by the obligor is extinguished in whole or in part and the
assignee acquires a right to such performance.”) with Restatement (Second) of Contracts § 280
25

vii. Limit Plaintiff’s Damages Due to Plaintiff’s Failure to Mitigate
Damages (Dkt. 15-921, Docs. 190, 205, 217)
Defendants next request that we preclude Plaintiff’s claim for “lost business damages” due
to Plaintiff’s alleged failure to mitigate its losses and allow Defendants to present evidence of
Plaintiff’s previous settlements in support of their mitigation defense. (Doc. 190-2 at 1.) According
to Defendants, Plaintiff was obligated under Pennsylvania law to “minimize the harm stemming
from the defendants’ misconduct,” which it apparently failed to do. (Id. at 4) (citing Bartunek v.
Koch, 170 A.2d 563, 564-65 (Pa. 1961)). Defendants assert that they are not responsible for paying
the cost of Rhoads’s “avoidable consequences” in the form of lost profits, as “[t]he facts show that
[Rhoads has] received large sums of money in settlement of [its] claims from [its] insurance
carriers and the United States Navy, but [has] made no effort to use those funds, yet alone any
funds, to repair the damage which [it claims] is allegedly causing an ongoing loss of business
revenue.” (Id. at 5.) Defendants seek to limit Plaintiff’s recovery by presenting evidence of
Plaintiff’s alleged failure to utilize settlement funds for necessary repairs that would have mitigated
its losses. (Id.) To that end, Defendants also assert that “[Plaintiff] must disclose the amounts [it]
received in settlement” with its insurers and with the Navy, as those funds are “directly relevant”
to Defendants’ defense and would be “admissible at trial.” (Id. at 3-4.) Defendants seek to compel
disclosure of confidential settlement agreements, which Plaintiff has apparently “steadfastly
refused” to provide. (Id. at 3.)

(1981) (“A novation is a substituted contract that includes as a party one who was neither the
obligor nor the obligee of the original duty.”). Defendants apparently believe that our finding of
an assignment as to a specific right means that Rhoads now “stands in the shoes” of PAID and is
responsible for “any work done and authorized by the City.” (Doc. 215-1 at 14.) This is not only a
overstatement of our decision, but improperly conflates the concept of an assignment with a
novation. To clarify, Rhoads “stands in the shoes” of PAID only for the purposes of bringing a
claim for property damage against Defendants for injury incurred through 2019.
26

In considering Defendants’ motion, we cannot ignore Federal Rule of Evidence 408, which
generally prohibits the introduction of settlement agreements into evidence. 12 The rule is
“motivated by strong public policy favoring the amicable resolution of disputes,” and therefore
“precludes the admission of settlement agreements when used to prove or disprove the validity or
amount of a disputed claim.” Sikkelee v. Precision Airmotive Corp., 522 F. Supp. 3d 120, 143
(M.D. Pa. 2021) (internal quotation marks omitted) (quoting Trout v. Milton S. Hershey Med. Ctr.,
572 F. Supp. 2d 591, 600 (M.D. Pa. 2008)). Nevertheless, settlement evidence may be admissible
“where offered for another purpose, such as proving a witness’s bias or prejudice, negating a
contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.”
Id. at 144 (quoting Fed. R. Evid. 408). When determining the limited admissibility of this evidence,
“[i]t is especially important to examine the policy goals underlying Rule 408.” Id. In accordance
with this policy, “federal courts frequently exclude evidence of settlements reached between a
plaintiff and a former defendant or between a plaintiff and a non-defendant who is responsible for
a portion of plaintiff's damages.” Trout, 572 F. Supp. 2d at 599. Finally, we observe that the
question of whether settlement evidence should be admitted for another purpose is “squarely

12

Federal Rule of Evidence 408 reads: “(a) Evidence of the following is not admissible—on behalf
of any party—either to prove or disprove the validity or amount of a disputed claim or to impeach
by a prior inconsistent statement or a contradiction: (1) furnishing, promising, or offering—or
accepting, promising to accept, or offering to accept—a valuable consideration in compromising
or attempting to compromise the claim; and (2) conduct or a statement made during compromise
negotiations about the claim—except when offered in a criminal case and when the negotiations
related to a claim by a public office in the exercise of its regulatory, investigative, or enforcement
authority. (b) The court may admit this evidence for another purpose, such as proving a witness's
bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal
investigation or prosecution.” Fed. R. Evid. 408. This rule applies to settlements with third parties;
former co-defendants and settlements with insurance companies. See 2 D. Louisell & B. Mueller,
Federal Evidence § 171 at 289 (1978) (“The very terms of Rule 408 leave no doubt that […] a
defendant cannot prove the invalidity or amount of a plaintiff's claim by proof of plaintiff's
settlement with a third person, nor can plaintiff show the defendant's liability or extent of liability,
by proof of defendant's settlement with a third person.”)
27

within a district court’s discretion,” and that “when the issue is doubtful, the better practice is to
exclude evidence of compromises or compromise offers.” Sikkelee, 522 F. Supp. 3d at 144.
Defendants claim that evidence of Rhoads’s previous settlements should be admitted for
the limited purpose of demonstrating that Plaintiff had the financial capacity to minimize its
damages, as Rhoads possessed the requisite funds to pay for repairs. (Doc. 190-2 at 5.) Without
this information, Defendants assert that the jury would be “misled” and “presented with an
incomplete and inaccurate understanding of the history of the alleged damages allegedly at issue.”
(Doc. 217 at 2.) In light of these arguments, we turn to Young v. Allsteel Press Co., 539 F. Supp.
193 (E.D. Pa. 1982) for guidance. Like Defendants in this case, the defendant in Young also
claimed that its express purpose in seeking to introduce evidence of the plaintiff’s settlement with
a former co-defendant was “not to prove the validity or invalidity of the claim or its amount,” but
rather to “minimize its potential exposure in damages.” Id. at 194-95. The defendant argued that
without evidence of the plaintiff’s prior settlement, the jury would be “kept in the dark” and
“misled into thinking that [defendant] was the only possible source of funds to compensate plaintiff
for his injuries.” Id. at 195. The court rejected the defendant’s position, explaining that this
evidence could not be admitted without violating the fundamental purpose of Rule 408:
Taking [the defendant] at its word; i.e., that it wishes to prevent the
jury from believing that [the defendant] would be the only source of
a plaintiff's recovery, it is still not possible to see how this is not
precisely the forbidden fruit excluded by operation of Rule 408. It is
difficult to understand how [the defendant] is not, by its own
admission, seeking to introduce such evidence to mitigate the
amount of any possible jury award by informing the jurors that
plaintiff has already received a measure of compensation for his
injuries. Thus, upon more circumspect analysis it is clear that [the
defendant’s] argument is merely an attempt to circumvent the
express prohibition of Rule 408.
Id.

28

We find that the reasoning employed by the court in Young is instructive here. The soughtafter result of Defendants’ request would almost certainly violate Rule 408. 13 Despite Defendants’
insistence this information is necessary to their mitigation defense, we do not see how this
justification could validly constitute “another purpose” under Rule 408 without implicating its ban
on settlement evidence for “proving or disproving the validity or amount of the disputed claim.”
Fed. R. Evid. 408. Although we lack Third Circuit guidance on this question, other circuits have
construed Rule 408(b) to exclude settlement evidence when it is offered for “limited purposes”
that are “inseparable” from the prohibited purpose of “proving or disproving the validity or amount
of the disputed claim.” See Macsherry v. Sparrows Point, LLC, 973 F.3d 212, 224–25 (4th Cir.
2020) (explaining that a court must “consider whether a limited purpose is inseparable from one
foreclosed under Rule 408(a)”); Weems v. Tyson Foods, Inc., 665 F.3d 958, 966 (8th Cir. 2011) (a
written agreement was not admissible to prove the defendant's “lack of good faith” because such
a purpose “directly established” the defendant's liability for the plaintiff's bad faith claim);
Stockman v. Oakcrest Dental Ctr., P.C., 480 F.3d 791, 798 (6th Cir. 2007) (evidence of a
compromise offer was not admissible under Rule 408(b) to show a failure to mitigate damages
because such a purpose “goes to the amount of the claim”); Trebor Sportswear Co. v. The Ltd.
Stores, Inc., 865 F.2d 506, 510 (2d Cir. 1989) (evidence inadmissible to show compliance with the
statute of frauds as purpose was “closely intertwined” with proving validity of the claim). In our
view, admitting Rhoads’s receipt of settlement funds from other parties for the limited purpose of
minimizing Defendants’ damages exposure is “inseparable” from the impermissible purpose of

13

In opposition to this motion, Plaintiff also claims that the admission of its settlements would
violate the collateral source rule under Pennsylvania law. (Doc. 205 at 4, n.2.) We address these
arguments below. See infra Section III.B.iii.
29

proving or disproving the amount of Defendants’ damages. Accordingly, this evidence is
inadmissible under Rule 408. 14
It follows that Defendants’ secondary request, to compel the disclosure of Plaintiff’s
confidential settlement agreements, is also denied. Confidential settlement agreements may be
disclosed only if the moving party can make a “particularized showing” that “the documents
relating to the settlement negotiations are relevant and likely to lead to the discovery of admissible
evidence.” Fid. Fed. Sav. & Loan Ass'n v. Felicetti, 148 F.R.D. 532, 534 (E.D. Pa. 1993). In order
to meet the “particularized showing” standard, our court has required that, “[a]t minimum,” a party
must demonstrate that “the settlement agreement is likely to be admissible for a permitted purpose
under Rule 408.” Spear v. Fenkell, No. CIV.A. 13-02391, 2015 WL 3947559, at *2 (E.D. Pa. June
26, 2015); see also Burlington v. News Corp. (“Burlington I”), No. CIV.A. 09-1908, 2015 WL
2070063, at *3 (E.D. Pa. May 4, 2015) (refusing to compel the production of a confidential
settlement agreement on the basis that the agreement was “relevant to issues concerning mitigation
of damages”). As we have already explained for the reasons set out above, evidence of Plaintiff’s
confidential settlement agreements is not admissible for any purpose under Rule 408. Therefore,
Defendants cannot meet the requisite standard to warrant the mandatory production of these

14

We are also satisfied that this evidence is inadmissible under Rule 403. See Trout, 572 F. Supp.
2d at 599 (“Regardless of admissibility under Rule 408, the court may exclude [settlement
agreements] if their “probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury [under Federal Rule of Evidence 403.]”). In our
view, introducing evidence that Rhoads has received settlement funds from its insurer and from
the Navy would have a “high risk” of confusing the jury and would prejudice Rhoads. Sikkelee,
522 F. Supp. 3d at 145. Especially when we consider that Defendants plan to present evidence of
the Navy’s culpability at trial and have sought to include them on the verdict sheet as a settled codefendant, it is likely that a jury may infer that Rhoads settled with the Navy because the Navy
was, in fact, liable. Accordingly, the jury may be inclined to reduce Defendants’ liability, which
would only “serve to punish” Rhoads for settling a portion of its claims. Id. This result would not
only run afoul of the policy considerations underlying Rule 403, but also the purpose of Rule 408.
30

documents. Furthermore, we cannot ascertain how this disclosure could “lead to the discovery of
admissible evidence,” as the parties’ discovery period has now passed. Felicetti, 148 F.R.D. at
534. This illuminates another problem with Defendants’ request—it is untimely. As Plaintiff noted
in its response briefing, fact discovery closed over two years ago. 15 Defendants did not seek
information about Plaintiff’s settlement agreements at the appropriate time, and we will not permit
Defendants to now employ a motion in limine as a belated discovery device. 16

15

In a previous scheduling order, we stated: “All depositions […] and all remaining discovery
shall be completed by April 30, 2020. Depositions shall be limited to those of witnesses presented
by or formerly with the Navy.” (Dkt. 15-921, Doc. 107.) We subsequently amended this order to
extend certain deposition deadlines and expert discovery deadlines, but those later amendments
did not affect our deadline for “all remaining discovery,” which included documentary exchanges
and related motion practice.
16

Defendants cite to Siegfried v. City of Easton, 146 F.R.D. 98, 99 (E.D. Pa. 1992) for the
proposition that a court may grant a discovery request beyond the discovery period. (Doc. 217 at
1.) We find the facts in Siegfried distinguishable from the circumstances presently before us. In
that case, the plaintiffs previously made a request for the psychological records of a police officer
“[d]uring the discovery phase,” at which point defendants objected on the basis of privilege. Id.
The plaintiffs then renewed their request for production of those same records before the court at
the motion in limine stage, via a “Motion in Limine in the Nature of Motion to Compel,” which
was granted, pending the court’s review in camera. Id. From our review of the record, it appears
that this motion in limine is the first time that Defendants have raised this particular discovery
dispute. Defendants boldly state, without citation to any evidence to support their claim, that
“[b]oth the Navy and American Home have advised Defendants that they had no objection to
producing the settlement agreements/disclosing the settlement terms but could not do so without
Plaintiff’s approval.” (Doc. 190-2 at 2-3.) Plaintiff denies that Defendants ever sought to obtain
the settlement agreements during discovery. (Doc. 205 at 3) (“If Defendants believed they were
entitled to these settlement agreements […] then they should have filed motions to compel before
the close of fact discovery […]. They did not.”). We will not grant a request for production that is
both untimely and seeks the disclosure of evidence we have already deemed inadmissible. See
Droughn v. FMC Corp., 74 F.R.D. 639, 642 (E.D. Pa. 1977) (denying plaintiff’s motion
challenging defendant’s discovery objections where “plaintiff waited until discovery was closed”
to file the motion); McCullough v. Dairy Queen, Inc., 195 F. Supp. 918, 919 (E.D. Pa. 1961)
(denying motion for production of documents, even where request was relevant and properly
limited in scope, because the motion was made beyond the discovery period “on the eve of trial”).
Furthermore, Defendants claim that “there is nothing in the rules prohibiting a Motion in Limine
in the form of a motion to compel.” (Id.) While that may be true, Federal Rule of Civil Procedure
26(d) “make[s] clear and explicit the court’s power to establish priority [of discovery deadlines]
by an order[.]” Fed. R. Civ. P. 26, Advisory Committee’s Note to 1970 Amendment. As stated
31

In sum, we will not preclude Plaintiff’s claim for lost business damages, nor will we allow
Defendants to present evidence at trial of Plaintiff’s alleged failure to utilize settlement funds
recouped in connection with this case. Defendants are also not entitled to the mandatory disclosure
of Plaintiff’s confidential settlement agreements at this late stage in the litigation. Our decision
should not be interpreted as forestalling Defendants from pursuing any kind of mitigation defense
at trial—they simply may not reference Plaintiff’s receipt of settlement funds by its insurers or by
the Navy in connection with this matter. 17 Furthermore, like the court in Young, we emphasize that
“[n]othing prevents [the defendant] from introducing whatever probative evidence of [the former
co-defendant’s] culpability it may otherwise have offered with [the former co-defendant] present
at trial.” 539 F. Supp. at 198, n.18. As we stated at the summary judgment stage, Defendants will
be permitted to present facts at trial to prove a prime facie case of negligence against the Navy,

above, we ordered that all remaining discovery (excluding certain depositions and expert-related
discovery) was to be completed by April 30, 2020. (Doc. 107.) The last motion to compel in this
case was resolved on April 15, 2020. (Doc. 108.) We cannot imagine why, over two years after
that deadline expired, we are now faced with a motion to compel a documentary production.
17

We remind Defendants that: “Mitigation of damages is an affirmative defense that the defendant
bears the burden of proving. To prove a failure to mitigate, a defendant must show: (1) what
reasonable [actions] the plaintiff ought to have taken; (2) that those actions would have reduced
the damages; and (3) the amount by which the damages would have been reduced.” Deere & Co.
v. Reinhold, No. CIV. A. 99-CV-6313, 2000 WL 486607, at *8 (E.D. Pa. Apr. 24, 2000) (citing
Koppers Co., Inc. v. Aetna Cas. & Surety Co., 98 F.3d 1440, 1448 (3d Cir. 1996)). “Whether a
plaintiff has met the duty to mitigate damages is a question of fact, and therefore properly reserved
for the jury where there is a genuine dispute of material over plaintiff's mitigation efforts.” Ngai
v. Urban Outfitters, Inc., No. CV 19-1480, 2021 WL 1175155, at *20 (E.D. Pa. Mar. 29, 2021).
Further, we acknowledge that Rhoads’s settlement agreements may be relevant to the issue of a
damages offset, but “to the extent the question of an offset of damages arises, it will not arise
unless and until a jury returns a verdict in favor of Plaintiff.” Burlington I, No. CIV.A. 09-1908,
2015 WL 2070063, at *4. “Even then, the settlement would not be evidence relevant to any issue
in this case other than the ministerial apportionment of damages, a mathematical computation
which the Court rather than the jury will perform.” Id. (internal citation omitted). This issue is not
presently before us, however, and we reserve the right to decide on this question should it arise
post-trial.
32

which may warrant the Navy’s inclusion on the verdict form. (Doc. 180 at 23). For the reasons
stated above, Defendants’ motion is denied.
viii. Limit Plaintiff’s Damages to the Lesser of Cost of Repair and the
Diminution to the Fair Market Value of the Property (Dkt. 15-921,
Docs. 191, 206, 218)
Defendants’ penultimate motion in limine seeks to limit Plaintiffs’ recovery for their
alleged property damage claims to “the lesser of repair of the damaged property or the decrease in
the fair market value of the property[.]” (Doc. 191-2 at 1.) At the outset, Defendants point to
Pennsylvania law for the proposition that the value of property damage is determined according to
“the cost of repairs where that injury is repairable; however, where the injury is characterized as
permanent, the measure of damages becomes the decrease in the fair market value of the property.
(Id. at 2) (quoting Babich v. Pittsburgh & New England Trucking Co., 563 A.2d 168, 170 (Pa.
Super. 1989)). Defendants claim that the evidence in the record does not support a payment of
repairs for a “brand-new dry dock […] [r]ather, Defendants are only responsible for restoring the
property to its former condition[,]” which they claim was already in a dilapidated state when
Rhoads began to occupy the property. (Id. at 6) (emphasis in original). Furthermore, Defendants
request that we preclude any attempt by Plaintiff to introduce the damages theory that Dry Dock
2 is a “special purpose property,” as “Rhoads has not set forth any evidence that the dry dock is
‘special’ in any way.” (Id. at 9.)
Defendants seem to ignore the existence of our summary judgment decision on this issue
and choose to reiterate arguments we have already rejected. Specifically, we concluded that the
measure of Rhoads’ alleged property damages should be presented to the jury for resolution:
Defendants next argue that the appropriate measure of damage to
Dry Dock 2 is “the cost of repairs or the decrease in the fair market
33

value of the property, whichever is lesser.” In response, Rhoads
contends that Dry Dock 2 qualifies as a “special purpose property”
under Pennsylvania law and is thus entitled to the cost of “full
repairs” to the dry dock, regardless of its fair market value. We
accept that damages to real property are usually based on the “lesser
of the cost of repair or the market value of the affected property.”
Pa. Dep’t. of Gen Servs. v. U.S. Mineral Prods. Co., 898 A.2d 590,
596 (Pa. 2006) (citing Lobozzo v. Adam Eidemiller, Inc., 263 A.2d
432, 437 (Pa. 1970)). An exception to this general rule exists for
“special use property,” for which damages must be calculated based
on “the complete cost of replacement.” Commonwealth Dep’t. of
Transp. v. Estate of Crea, 483 A.2d 996, 1002 (Pa. Commw. Ct.
1977).
⸳⸳⸳
As both parties acknowledge, this exact issue was previously briefed
for the Court two years ago, after Rhoads filed a motion requesting
formal recognition of Dry Dock 2 as a “special purpose property.”
Following upon our review of the parties’ arguments, we held that:
“We appreciate that the record is not complete and the parties are
likely to produce expert reports that may be relevant to this question,
but we must conclude that there are factual disputes integral to the
“special use” determination, leaving us to conclude—at least at this
stage—that this determination must be left to the jury.”
⸳⸳⸳
The time for discovery is over, and Defendants now claim that the
undisputed facts in the record support their position that Dry Dock
2 is not a special purpose property as a matter of law. We disagree.
Having reviewed Defendants’ current arguments in conjunction
with our prior decision, it appears that the disputed facts we
identified then remain in dispute now. Defendants fail to identify
any fresh record evidence that resolves the factual conflicts we
previously highlighted. […] In short, lingering disputed facts in the
record preclude the resolution of this issue as a matter of law.
The evidence in the record demonstrates that questions of fact
remain as to Dry Dock 2’s qualification as a “special purpose
property.” We are unconvinced that this question can be resolved as
a matter of law. Defendants have not produced any new facts or new
law since our prior decision that would allow us to dispose of this
issue at this stage. Therefore, we reiterate our previous holding that

34

this determination should be left to the jury. Accordingly, summary
judgment is also denied as to this issue.
(Doc. 182 at 11-15) (emphasis in original) (internal docket citations omitted).
We are at a loss as to why this issue is before us again. 18 Defendants ask us once more to
limit Plaintiff’s damages to either the cost of repairs or the decrease in the fair market value of the
property, and also to preclude Plaintiff’s damages claim in its entirety, arguing that the evidence
is insufficient to support Plaintiff’s “special purpose property” theory. We will not grant a motion
in limine based on contentions that we have already expressly dismissed. 19 For these reasons, and
in accordance with our previous decisions on this issue, Defendants’ motion is denied.
ix. Limit Plaintiff’s Damages as to Alleged Loss of Navy Projects (Dkt. 15921, Docs. 192, 207, 219)
Finally, Defendants seek to limit any evidence related to Plaintiff’s claim that “due to the
damages at the dry dock [Rhoads] lost bids or the ability to bid on Navy projects.” (Doc. 192-2 at
2.) They allege that Plaintiff has offered “no evidence” to support the claim that Rhoads lost
government bids “because of the dry dock damage.” (Id. at 3.) In fact, according to Defendants,

18

Before we considered this question during the summary judgment stage, it was first presented
to the Court two years ago, at which point we also determined that it should be reserved for the
jury. (Dkt. 15-921, Doc. 88).
19

Rather than attempting to limit the evidence they expect Plaintiff to present in support of this
claim at trial, Defendants instead renew their already-rejected argument that Plaintiff “lacks”
evidence in support of this claim entirely. This strategic choice is especially confusing when we
consider that Plaintiffs have presented ample evidence on this issue through three different experts.
(Doc. 206 at 4.) In fact, Plaintiff claims that it is Defendants who have not adduced sufficient
evidence to satisfy their fair market value damages theory, as “Defendants never disclosed an
expert on market value.” (Id. at 5.) Accordingly, Plaintiff asserts that Defendants have not satisfied
their burden in proving an alternative damages theory. (Id.) Again, as we have stated, the jury will
be presented with the available evidence and the parties’ respective arguments on this issue, at
which point they will determine how to measure Plaintiff’s alleged property damage.
35

Plaintiff “can point to no specific project or contract that they lost as a result of the issues in this
case” and “[t]here is no plausible basis on which to establish that Rhoads was unable to win certain
bids, or how many bids Rhoads would have obtained but for the claimed damage to the Dry Dock
and surrounding areas.” (Id.) Defendants claim that the only witness Plaintiff has produced to
address this claim is Mr. Rhoads, who apparently admitted that “he had no information as to the
other bids or how the other bids were calculated” and that “the Navy never provided any
explanation as to why Rhoads was not awarded the project.” (Id. at 3-4.) Accordingly, Defendants
seek to preclude Plaintiff’s claim for damages on this basis, as any “speculative” evidence
produced by Plaintiff has not established these damages with a “reasonable certainty” under
Pennsylvania law. (Id. at 4) (citing Ware v. Rodale Press, Inc., 322 F.3d 218, 226 (3d Cir. 2003)). 20
Upon reviewing the available record, we simply disagree with Defendants’ assertion that
Plaintiff has offered “no evidence” in support of its claimed damages related to unsuccessful Navy
project bids. First, we are not convinced that Mr. Rhoads’s testimony is entirely inadmissible in
support of these alleged losses. Although Mr. Rhoads may not be considered an expert on causation
or damages, he is the owner and CEO of Rhoads Industries, Inc., and possesses the requisite
personal knowledge under Federal Rules of Evidence 602 and 701 to testify as to the history of
Plaintiff’s bidding activities, including bids that were accepted or rejected by the Navy. Despite

20

Defendants also cite to precedent from the Ninth Circuit, Matson Plastering Co. v. Plasterers &
Shophands Local No. 66, 852 F.2d 1200 (9th Cir. 1988), for the proposition that, “courts that have
considered the issue of lost profits resulting from the lost opportunity to bid on subsequent
contracts have found proof of such damages too speculative and uncertain.” Id. at 1203. We agree
with Plaintiff that Defendants’ reliance on this case is “misplaced,” as Matson addressed the
availability of lost profits under a specific provision of the Labor Management Relations Act,
which is inapposite here. (Doc. 207 at 4.) Furthermore, as Plaintiff points out, the Ninth Circuit
has clarified that lost profit damages are “necessarily an estimate” and can be awarded when
“supported by substantial evidence.” (Id.) (citing Humetrix, Inc. v. Gemplus S.C.A., 268 F.3d 910,
919 (9th Cir. 2001)). In any event, we are not bound by Ninth Circuit precedent.
36

the fact that Mr. Rhoads is not privy to the Navy’s reasons for denying Rhoads’s bids, his testimony
as to Rhoads’s efforts in those bids is undoubtedly relevant and probative to determining Rhoads’s
alleged losses. Second, we emphasize that Mr. Rhoads’s testimony is also buttressed by the
professional calculations performed by Plaintiff’s damages expert, Cowhey. In his report, Cowhey
explained that he “independently researched industry trends, federal contracts, interviewed
Rhoads’ management and customers, and analyzed supporting records to identify historical
commercial and government contracts from 2013 to 2019 which either Rhoads lost the bid, or did
not submit a bid, due to the various limitations and higher operating costs cause by the sinkholes[.]”
(Doc. 208-2, Pl. Ex. 2, Cowhey Rep. at 6). In particular, Cowhey identified “specific actual
projects that Rhoads missed out on due to the sinkholes[,]” and calculated Rhoads’ lost revenue in
a section of his report entitled “Missed Potential Projects.” (Id. at 8-9) (emphasis added). As we
have explained, we approved Cowhey’s methods and opinions as a financial expert under Federal
Rule of Evidence 702 in our prior Daubert opinion.
In sum, it can hardly be said that Rhoads’s damages claim against Defendants regarding
Navy project losses should be precluded based on Rhoads’s reliance on “speculative” evidence.
We find that Mr. Rhoads and Cowhey’s testimony is sufficient on this issue. To the extent that
Defendants contest Cowhey’s testimony, they may challenge him on cross-examination. Similarly,
Defendants may highlight any purported deficiencies in Mr. Rhoads’s testimony when he takes
the stand at trial. The jury will assess the credibility of these witnesses and determine the
appropriate weight to give their testimony in measuring Plaintiff’s alleged lost profits as they
pertain to Navy bids. For the above stated reasons, Defendants’ motion is denied.

37

B. Plaintiff’s Motions in Limine
Plaintiff has submitted eight motions in limine for our consideration, seeking to preclude
the following evidence: (1) “Evidence of the 2021 Navy Project and the October 28, 2021 Site
Visit” (Dkt. 15-921, Doc. 193); (2) “Reference to the Opinions of John Vitzthum or Any
Representative of DM Consulting” (Dkt. 15-921, Doc. 194); (3) “Evidence of Rhoads’ Recovery
of Insurance Proceeds from American Home Assurance Company or Hartford Fire Insurance
Company” (Dkt. 15-921, Doc. 195); (4) “Any Reference to the Lawsuits filed by Plaintiffs Against
the U.S. Navy and Settlement of Those Lawsuits” (Dkt. 15-921, Doc. 196,); (5) “Reference to the
Appraisals of Rhoads’ Property by Dunkin Real Estate Advisors” (Dkt. 15-921, Doc. 197); (6)
“Arguments or Opinions that Plaintiffs Can Keep Any Verdict and Not Perform Any Repairs to
the Property” (Dkt. 15-921, Doc. 198); (7) “Any Argument that Duffield Associates, Inc. and/or
HDR Engineering, Inc. Should Be Included on the Verdict Sheet” (Dkt. 15-921, Doc. 199); and
(8) “Take Judicial Notice of Three Government Documents.” (Dkt. 15-921, Doc. 200.) After
reviewing Plaintiff’s arguments, all eight of its motions are granted, subject to any exceptions or
conditions articulated below.
i. Preclude Evidence of the 2021 Navy Project and the October 28, 2021
Site Visit (Dkt. 15-921, Docs. 193, 215, 221)
Plaintiff first asks us to preclude any evidence of, or reference to, the Navy’s construction
activities at the site in 2021 and the parties’ joint site visit on October 28, 2021. (Doc. 193-2 at 2.)
For context, Plaintiff contacted the Court and the parties on June 24, 2021, notifying them that the
Navy had resumed pile driving activity near Rhoads’s property in connection with a new
construction project. (Doc. 201-1, Ex. 1, Rhoads Inc. Dec. at 2.) In its correspondence, Plaintiff
indicated that despite its warnings to the Navy to cease pile driving, the Navy continued, and

38

Rhoads personnel subsequently noticed “an increase in water and sediment flowing from the floor
of the dry dock.” (Id.) On June 28, 2021, we held a telephone conference with counsel for the
parties to discuss the impact of the Navy’s construction project on this case and ordered them to
submit briefs detailing their respective positions on “whether to reopen expert discovery related to
the new pile driving.” (Dkt. 15-921, Doc. 156 at 2.) On August 6, 2021, after reviewing the
arguments presented in counsels’ briefs and oral argument, declined to reopen expert discovery as
to this issue. (Id.) Our decision notwithstanding, Plaintiff allowed Defendants to conduct a site
visit with their experts on October 28, 2021. 21 Defendants subsequently submitted “supplemental”
expert reports reflecting their observations from that visit. 22 Plaintiff now asserts that these reports,
and any evidence pertaining to the above-stated events, should be inadmissible at trial as irrelevant,
confusing, and prejudicial. (Doc. 193-2 at 7.)
In assessing Plaintiff’s request to preclude this evidence, we start by reviewing particularly
relevant excerpts from our prior decision, declining Defendants’ request to reopen expert discovery
for the purpose of investigating the impact of the Navy’s new pile driving activity:
Our concern with the Defendants’ request to reopen is that we are
unconvinced that the information sought is relevant or, even if it is,
would be admissible under Fed.R.Evid. 403. We also conclude that
the scope of the request is disproportionate to the needs of the case.
[…] [We] must take into account, here, the question of its relevance
to the pile driving in 2013 and 2015. We accept that the information
concerning this question was promptly brought to the attention of
the Court and opposing counsel. We are unwilling, however, to
characterize it as supported by good cause given the tenuous
21

In addition to Defendants’ October 28, 2021, site visit with their experts, the parties also
conducted a joint “counsel-only” visit to the site on July 12, 2021.
22

Plaintiff objected to these supplemental reports at the time they were submitted as a blatant
violation of our decision not to reopen expert discovery for the purpose of investigating the impact
of the Navy’s new construction project. On November 16, 2021, we held an unrecorded telephone
conference with counsel for both parties, during which expressed that we would withhold any
ruling as to the admissibility of these reports until the motion in limine stage.
39

connection it may have to the 2013 and 2015 cases. We conclude
that the information that Defendants now seek to obtain is outside
the proper scope of discovery.
⸳⸳⸳
We note first that we need not be concerned about the relevance of
this evidence as to damages in that Rhoads has expressly stated that
it is cutting off its damage claims through December 2019. The
parties dispute, however, whether the new information related to the
new pile driving is relevant to the questions of causation and
liability.
⸳⸳⸳
Whatever duty Rhoads may or may not have had in 2013 and 2015
either existed at that time or it did not. Rhoads’ conduct in 2021
cannot retroactively create a duty to the Defendants in this litigation.
Nor can Rhoads’ recent conduct in 2021 alter its past conduct in
2013 and 2015 to retroactively create a breach of any duty that may
or may not have existed. Accordingly, we conclude that evidence
related to the new pile driving has no tendency to make any fact
related to Rhoads’ alleged comparative negligence more or less
likely than it would be without the evidence. Fed.R.Evid. 401.
Further, even if this evidence were relevant, we find that it presents
a significant danger of “confusing the issues” and “misleading the
jury.” Fed.R.Evid. 403.
⸳⸳⸳
For the same reasons that we have determined Rhoads’ recent
conduct is not relevant, we are similarly not persuaded with regard
to discovery that may be sought from the Navy. […]As we have
already set out above with respect to Rhoads, whether the Navy was
negligent in 2013 and 2015 is not affected by its conduct in 2021.
Its most recent conduct cannot retroactively create any duty, nor can
it retroactively impact whether the Navy breached any alleged duty.
Any evidence related to the Navy’s conduct in 2021 thus has no
tendency to make it more or less probable that the Navy was
negligent in 2013 or 2015, and it presents the danger of confusing
the issues and misleading the jury.
⸳⸳⸳
Defendants represent that at the July 12, 2021 counsel-only site visit,
they observed damage and evidence of ongoing subsidence, which
40

they believe is not related to the 2021 pile driving. They thus
contend that, if there is continuing damage at the dry dock which
was not caused by the 2021 pile driving, that circumstance would
bolster their argument that pile driving generally is not the cause of
damage at the dry dock, including the damage sustained in 2013 and
2015. We are unpersuaded by this argument. […] [W]e find that
whether the 2021 pile driving did or did not cause damage is too
attenuated to have any bearing on whether the 2013 and 2015 pile
driving caused damage.
⸳⸳⸳
For the reasons set out above, Defendants’ request to reopen expert
discovery is denied[.]
(Id. at 3-8) (emphasis added).
We concede that our decision on this issue discussed whether this particular evidence was
discoverable, not whether it was admissible. Nonetheless, we find that our prior reasoning is
instructive in resolving the question before us. First, we reiterate that evidence of the Navy’s
activity in 2021 could not possibly be relevant to damages at trial, as “Rhoads has expressly stated
that it is cutting off its damage claims through December 2019.” (Id. at 4.); (Doc. 192-3 at 7)
(“Rhoads is claiming economic damages through the end of 2019 only. Rhoads is also limiting its
claimed damage to the property to what occurred after each sinkhole.”). 23 Next, we emphasize that

23

In opposition to Plaintiff’s motion, Defendants raise many of the same arguments we considered
in denying their request to reopen expert discovery, e.g., “This evidence supports Defendants’
contention that continued lack of maintenance, capital improvement, and upkeep are the cause of
the damages to this 102-year-old structure[.]” (Doc. 215-1 at 11.) These arguments are unavailing
for the same reasons we articulated almost a year ago. (Doc. 156 at 6.) One new argument that we
feel compelled to address is Defendants’ assertion that on October 28, 2021, they “observed, over
7 years after Tritons’ pile driving[,] at least 30 workers are using the building, which appeared to
be actively used as a workshop with tools and mechanical equipment, and with supplies being
stored there.” (Id. at 12.) Defendants claim that “this is akin to seeing a plaintiff who claims they
cannot walk running a marathon a week before trial, then arguing that the defense cannot mention
it.” Id. Rhoads disputes both the veracity of Defendants’ observations and Defendants’ implication
of bad faith. (Doc. 221 at 5.) We need not delve into the “truth” of what was observed on October
28, 2021, as Defendants’ contentions ignore our finding that the condition of the property beyond
the period of Rhoads’s claimed damages period, which ends in December 2019, is irrelevant. To
41

this evidence is not likely to be dispositive of any question pertaining to causation or liability at
trial, “given the tenuous connection” it has to the events that gave rise to this lawsuit. (Doc. 156 at
3.) As we stated, matters that took place in 2021 cannot “retroactively” alter the parties’ conduct
in the years where Rhoads’s claims originated. (Id. at 4-5.) Specifically, pile driving that occurred
in 2021 is “too attenuated to have any bearing on whether the 2013 and 2015 pile driving caused
damage.” (Id. at 6.) We will not ascribe duties, breaches, and causes from the past to future events.
Therefore, we maintain our previous position that evidence related to the Navy’s new pile driving
is not relevant under Federal Rule of Evidence 401, as it “has no tendency to make any fact related
to Rhoads’ alleged comparative negligence [or the Navy’s alleged negligence] more or less
likely[.]” (Id. at 5.) Even if this evidence were relevant, we reaffirm our finding that it “presents a
significant danger of confusing the issues and misleading the jury” under Federal Rule of Evidence
403. (Id.) (internal quotation marks omitted).
Finally, we are satisfied that evidence we refused to deem discoverable is almost certainly
not admissible at trial, especially when we consider that the standard for discoverability is broader
than that of admissibility. Cf. Neuberger & Scott v. Shapiro, 196 F.R.D. 286, 287 (E.D. Pa. 2000)
(“The discovery standard is less stringent [than the admissibility standard]—it requires only a
reasonable likelihood that the discovered information will bring about the production of relevant
evidence.”). In accordance with our previous decision, and for the reasons stated above, we affirm
that evidence pertaining to the Navy’s 2021 construction project and the October 28, 2021 site
visit, will be precluded entirely. 24 Plaintiff’s motion is granted.

that same end, we will not consider Defendants’ baseless accusation that Rhoads’s damages claim
is “fraudulent.” (Doc. 215-1 at 13.)
24

Our decision precludes the use of, or reference to, any documents, video, photographs, or
testimony related to these events, including the “supplemental” expert reports submitted by
42

ii. Preclude Reference to the Opinions of John Vitzthum or Any
Representative of DM Consulting (Dkt. 15-921, Doc. 194)
Plaintiff next seeks to preclude Defendants from “referring to, referencing, or relying on in
any way, [the] opinions of John Vitzthum [(“Vitzthum”)] and DM Consulting.” (Doc. 194-2 at 3.)
In making this request, Rhoads emphasizes that this Court previously precluded Vitzthum as an
expert in our Daubert decision. (Id. at 4-5.) Specifically, we held that Defendants’ failure to
provide a timely and compliant expert disclosure had prejudiced Rhoads and therefore warranted
Vitzthum’s exclusion as a sanction. (Doc. 150 at 47-53.) We also explained that, notwithstanding
Defendants’ procedural errors, Vitzthum’s testimony and opinions could not be considered
“reliable” under Federal Rule of Evidence 702:
Further, even if were not to exclude Vitzthum’s testimony pursuant
to Fed.R.Civ.P. 37(c) for failure to comply with Fed.R.Civ.P. 26(a),
Defendants in November 2021. Not only is this evidence irrelevant, prejudicial, and confusing, but
we agree with Plaintiff that Defendants’ “supplemental” expert reports were submitted in violation
of our August 6, 2021 decision that precluded further expert discovery as to the Navy’s renewed
pile driving activity. Further, we are not convinced that Defendants’ “supplemental” expert reports
are proper. We acknowledge that litigants have an obligation to supplement expert reports and
must do so “in a timely manner if the party learns that in some material respect the disclosure or
response is incomplete or incorrect, and if the additional or corrective information has not
otherwise been made known to the other parties during the discovery process or in writing.” In re
Asbestos Prod. Liab. Litig. (No. VI), 289 F.R.D. 424, 425 (E.D. Pa. 2013) (citing Fed. R. Civ. P.
26(e)(1)(A)). Even so, we believe that Defendants’ November 2021 reports are not the kind of
“supplements” contemplated by Rule 26. Notably, “Rule 26(e) is not an avenue to […] ‘deepen’
or ‘strengthen’ existing opinions.” Id. (citing Leviton Mfg. Co., Inc. v. Nicor, Inc., 245 F.R.D. 524,
528 (D.N.M. 2007)); see also Plumley v. Mockett, 836 F. Supp. 2d 1053, 1062 (C.D. Cal. 2010) (a
supplemental expert report “seeks to ‘strengthen’ or ‘deepen’ opinions expressed in the original
expert report is beyond the scope of proper supplementation”). Further, “a supplemental report
may be rejected where it […] was served merely because a party simply wished to supplement.”
In re Asbestos, 289 F.R.D. at 425. Here, Defendants submitted three, one-page “supplements,”
each of which merely stated that the opinions and findings from the prior experts reports “have not
changed or been altered,” “confirms my previously expressed opinion,” or “remains unchanged,”
following the October 28, 2021 site visit. (Doc. 201-1, Exs. 8, 9, 10, Rhoads Inc. Dec.) Even if we
found that these supplements were otherwise admissible under the Federal Rules of Evidence, we
cannot accept that they are proper under Federal Rule of Civil Procedure 26, as they do not offer
“material” opinions based on any “additional or corrective” information. Fed. R. Civ. P. 26(e).
43

we would nonetheless preclude it pursuant to [Fed.R.Evid.] 702 as
unreliable. Indeed, while “[t]he standard for reliability is not that
high,” expert testimony must still be supported by “good grounds.”
Further, while the facts and assumptions underlying an expert’s
opinion are generally issues for cross examination and not
preclusion, the opinions must still have at least “some factual basis,”
even if it is “shaky.” Here, Vitzthum summarizes his opinion as
follows: “It is my opinion, within a reasonable degree of
professional certainty, that Rhoads’ claim that it potentially lost
government contracts and revenue from 2013 to present, when the
dry dock has not had any form of certification since 1993, is
unreasonable.” There is no factual support in the record for the
proposition that “the dry dock has not had any form of certification
since 1993.” To the contrary, Rhoads has provided certifications
from 2012, 2015, 2017, and 2020. This contradiction with record
evidence is not merely the sort of “conflicting evidence that is not a
basis to exclude an expert’s testimony.” Rather, Vitzthum’s
inaccurate assertion that Rhoads’ dry dock had no certifications after
1993 finds no support in the record, yet it is central to his
conclusions. Under these circumstances, it cannot be said that
Vitzthum’s opinion has a sufficient factual basis to be reliable.
(Id. at 53-54, n.9) (internal citations omitted). We underscored Vitzthum’s exclusion in our
decision denying Defendants’ request for reconsideration of Mr. Vitzthum’s admissibility, and
again in our decision denying Defendants’ motion for summary judgment. (Dkt. 15-921, Doc. 158
at 10) (“[Defendants’] motion for reconsideration of our Order of July 2, 2021 precluding the
testimony of John Vitzthum is denied.”); (Doc. 150 at 10, n.7) (“We cannot, however, consider
[Vitzthum’s] report as we precluded Vitzthum from offering any such expert opinion for the
reasons set out in two prior memorandum opinions.”). In short, we have previously affirmed the
preclusion of Vitzthum’s testimony and opinion from trial of no less than three times.
Despite our prior decisions on this issue, Plaintiff explains that it filed this motion “[b]ased
[on] Defendants’ disregard of this Court’s rulings on the inadmissibility of Mr. Vitzthum’s ‘report’
and testimony […] to pre-empt any attempt by Defendants to again disregard those rulings and
refer to Mr. Vitzthum’s ‘report’ or opinions during trial.” (Id. at 3, n.2.) We note Defendants did

44

not avail themselves of the opportunity to file a response, therefore, Plaintiff’s motion to exclude
this evidence is unopposed. See E.D. Pa. Civ. R. 7.1(c) (“In the absence of timely response, the
motion may be granted as uncontested[.]”). 25 Even without the benefit of opposing argument, we
are satisfied that there is no legal basis for allowing the testimony or opinions of Vitzthum or DM
Consulting to be introduced at trial. Not only has this evidence already been precluded, but we
agree with Plaintiff that any reference to Vitzthum would unfairly prejudice Rhoads and “mislead
the jury” under Federal Rule of Evidence 403. (Doc. 194-2 at 5.) We reaffirm that any report or
opinion by Vitzthum or DM Consulting will not be admissible at trial. For the above-stated
reasons, and for the reasons set out in our previous decisions on this issue, Plaintiff’s motion is
granted.
iii. Preclude Evidence of Rhoads’ Recovery of Insurance Proceeds from
American Home Assurance Company or Hartford Fire Insurance
Company (Dkt. 15-921, Docs. 195, 211, 222)
Next, Plaintiff claims that insurance proceeds from its insurance companies, American
Home Assurance Company (“AHAC”) and Hartford Fire Insurance Company (“Hartford”) should
not be disclosed to the jury at trial. 26 (Doc. 195-2 at 3.) Rhoads invokes the collateral source rule,
which “precludes references to other sources of recovery that are deemed irrelevant at trial, in

25

Our Pretrial Scheduling Order, filed on April 5, 2022, required all motion in limine responses to
be submitted “on or before June 10, 2022.” (Dkt. 15-921, Doc. 186.) On June 2, 2022, Plaintiff’s
counsel requested an extension of this deadline on behalf of all parties, via email correspondence
with the Court. We granted that request on that same day, also via email correspondence, and
amended the deadline to file motion in limine responses to June 24, 2022. We note that Defendants
timely submitted responses to six of Plaintiff’s eight motions in limine by this deadline.
26

Specifically, “AHAC provided property insurance to Rhoads for Building 669 while Hartford
provided property damage coverage for Dry Dock 2 for associated business interruption losses.”
(Doc. 195-2 at 2.) Rhoads confirms that both companies paid certain amounts in accordance with
its policies but emphasizes that those settlements were “confidential.” (Id. at 3.)
45

order to avoid the possibility that an improper inference by jurors of a double recovery on the
plaintiff's part might diminish due and proper damages which would otherwise be assessed against
the tortfeasor.” Gallagher v. Pennsylvania Liquor Control Bd., 883 A.2d 550, 551 (Pa. 2005). The
purpose of the collateral source rule is “to avoid precluding a claimant from obtaining redress from
his or her injury merely because coverage for the injury was provided by some collateral source,
e.g. insurance.” Ocasio v. Ollson, 596 F. Supp. 2d 890, 904 (E.D. Pa. 2009) (emphasis added).
Although evidence of a plaintiff's recovery from collateral sources is generally inadmissible, “an
exception exists if the evidence of such recovery is relevant to a material issue in the case.”
Gallagher, 883 A.2d at 557 (emphasis added). Plaintiff asserts that any recovery from AHAC and
Hartford “has no relevance to Defendants’ liability and the damages sustained as a result of
Defendants’ conduct” in connection with the collateral source rule, and that its admission would
also “confuse and mislead the jury” under Federal Rule of Evidence 403. (Doc. 195-2 at 3.)
As discussed above, we have already determined that this evidence is inadmissible under
Federal Rule of Evidence 408. See supra Section III.A.vii. Defendants raise the same arguments
here that they raised previously, contending that evidence of Rhoads’s receipt of insurance funds
is relevant to Rhoads’s claimed lost profit damages. (Doc. 211-2 at 3-5.) Specifically, they allege
that Rhoads had a “duty to mitigate” its losses by utilizing the funds it received from AHAC and
Hartford to carry out necessary repairs to the property. (Id.) In the context of the collateral source
rule, specifically, Defendants argue that whether Rhoads could mitigate its lost profit damages is
a “material issue” and that evidence of its insurance funds should be admissible for that limited
purpose. (Id. at 5) (citing Gallagher, 883 A.2d at 557). Defendants rely on Burlington v. News
Corp. (“Burlington II”), No. CIV.A. 09-1908, 2015 WL 3439149 (E.D. Pa. May 27, 2015) to argue
that settlement payments can be relevant to a “material issue.” (Doc. 222 at 4.) In Burlington, the

46

plaintiff sought “to exclude evidence that he received money—in the form of a settlement
payment—from [the] defendants in a related lawsuit, in which he alleged damages that are nearly
identical.” Id. at *22. The court reasoned that, “in Title VII cases […] where the collateral source
rule operates to exclude evidence, the types of collateral source damages that are deemed irrelevant
include unemployment compensation, Social Security payments, and welfare programs.” Id.
Accordingly, the court held that the collateral source rule did not preclude the admissibility of a
settlement from a separate, prior, and factually related, lawsuit. Id.
We are not persuaded that Burlington is instructive in these circumstances. First, the court
in Burlington analyzed the admissibility of this evidence in the context of Title VII, which is not
at issue. Second, the settlement in Burlington arose out of a previous lawsuit, rather than the same
lawsuit, as is the case here. Finally, the court in Burlington expressly stated that the collateral
source rule excludes evidence of proceeds received from “insurance.” Id. This is exactly the kind
of evidence that Rhoads seeks to preclude. Despite Defendants’ assertion that this evidence would
be offered only in support of their mitigation defense, this purpose would likely serve to “diminish
the damages” that Plaintiff might recover from Defendants and therefore undermine the protection
offered by the collateral source rule. Ocasio, 596 F.Supp.2d at 904. We also agree with Plaintiff
that the admission of this evidence would violate Rule 403, as it is likely that a jury would become
confused or misled about the value of Plaintiff’s damages or the validity of Plaintiff’s claims at
trial if they were informed that Plaintiff had already recovered money from a different source. This
information could only serve to prejudice Rhoads at trial, as a jury may be inclined to improperly
reduce Defendants’ potential liability. Accordingly, any evidence of Rhoads’s settlements with its
insurers, AHAC and Hartford, will be precluded.

47

Although we will not allow Defendants to affirmatively admit evidence of Plaintiff’s
insurance proceeds at trial, we will allow Defendants to admit evidence of Plaintiff’s insurance
coverage in the narrowest of circumstances. Defendants anticipate that “Dan Rhoads will testify
at trial that Plaintiffs did not have enough money to make repairs.” (Doc. 217 at 2.) This court
recently addressed this very issue in Williams v. Benshetrit, No. 19-CV-00797, 2022 WL 138007
(E.D. Pa. Jan. 14, 2022), in the context of a dental malpractice claim:
If Plaintiff testifies at trial that he was unable to afford dental care,
Defendant can introduce Plaintiff's admissions during his
depositions, both that he had dental insurance and what his dental
insurance covered, to impeach his credibility about his lack of funds
to pay for dental work. […] Plaintiff's assertion of his ability to
afford dental treatment is [material] [sic] to the issue of liability. If
Plaintiff opens the door on this issue, the fact that he had dental
insurance is appropriate evidence on cross-examination, but the
extent of this evidence may be limited.
Id. at *4. We will hold the same as the court in Williams. In the event that Rhoads “opens the door”
as to the affordability of repairs, Defendants may inquire on cross-examination as to the fact that
Rhoads had insurance to cover its losses and what, specifically, the insurance covered. Id. As in
Williams, we reserve the right to limit the “extent” of this evidence; Defendants should be advised
that this ruling does not vitiate our previous decision as to the admissibility of settlement evidence
under Rule 408 and that we are not likely to admit any evidence about Rhoads’s settlements with
AHAC and Hartford. See supra Section III.A.vii. For the above stated reasons, Plaintiff’s motion
is granted, subject to the exception discussed herein.

48

iv. Preclude Any Reference to the Lawsuits filed by Plaintiffs Against the
U.S. Navy and Settlement of Those Lawsuits (Dkt. 15-921, Docs. 196,
209, 223)
Plaintiff also requests that we preclude Defendants from making any reference to the
lawsuits filed against the Navy and the settlement of those lawsuits. (Doc. 196-2 at 3.) In filing
this motion, Rhoads acknowledges that, in accordance with our previous summary judgment
decision, Defendants will be permitted to present evidence of the Navy’s liability at trial for
purposes of apportionment under the Pennsylvania Fair Share Act (“Fair Share Act”). 27 (Id.)
(citing Doc. 180 at 23.) Rhoads emphasizes that “[g]ranting this Motion will not prevent
Defendants from arguing that the jury should determine if the Navy should be apportioned some
percentage of negligence […] [i]t simply restricts the evidence that can permissibly be presented
in support of such an argument.” (Id. at 4, n.1). To that end, Rhoads insists that Defendants do not
have “carte blanche” to introduce evidence of the “the lawsuits filed by Rhoads against the Navy

27

Specifically, we held:
Defendants have presented facts from which a jury could reasonably
conclude that the Navy failed to take appropriate precautions against
damage caused by vibrations from Defendants’ pile driving. That
said, we remind Defendants that setting forth enough evidence to
withstand a challenge on summary judgment does not mean that the
Navy’s negligence has been conclusively established. In order to
warrant apportionment of liability under the Fair Share Act,
Defendants must present facts at trial to support a prima facie case
of negligence against the Navy It may very well be that, considering
all the evidence offered at trial, the record might not support a
negligence claim against the Navy. At this stage, it remains
undecided as to whether the Navy should appear as a settled
codefendant on the verdict form.

(Doc. 150 at 22-23.) For further discussion regarding the specific provision of the Fair Share Act
that Defendants seek to invoke at trial, see infra Section III.B.vii.
49

(including specific allegations made against the Navy in those complaints […]) and the settlement
of those suits.” (Id at 3.) Plaintiff asserts that the admission of evidence regarding its lawsuit and
settlement with the Navy is irrelevant, prejudicial, and a blatant violation of Rule 408.
As we have already explained, evidence of Plaintiff’s confidential settlement agreement
with the Navy is not admissible for any purpose under Rule 408. See supra Section III.A.vii. We
need not address these arguments again. Our determination as to the inadmissibility of settlement
evidence aside, we agree with Plaintiff that any evidence of Rhoads’s previous lawsuit against the
Navy, including pre-discovery allegations and now-settled claims, is irrelevant and prejudicial
under Rules 401, 402, and 403. Specifically, the pleadings in which Rhoads originally articulated
its factual allegations and legal claims against the Navy have little to no dispositive value and are
not “evidence” of the Navy’s liability. See Foster v. Berwind Corp., No. CIV. A. 90-0857, 1991
WL 83090, at *1 (E.D. Pa. May 14, 1991) (“The allegations, however, in the complaints in these
other actions are just that: allegations. To begin examining and admitting evidence of accusations
[…] at other possible culprits […] are dispositive of nothing and would confuse the complex issues
already present.”). Further, presenting evidence of the settled claims against the Navy together
with the surviving claims against Defendants would not only distract the jury, but also
unreasonably burden them with the task of disentangling the claims. See Kimes v. Univ. of
Scranton, No. 3:14-CV-00091, 2016 WL 1274134, at *2 (M.D. Pa. Apr. 1, 2016) (excluding
evidence of previously dismissed claims “out of concern for a lay jury’s inability to
compartmentalize dismissed and surviving claims” and “because the dismissed claims are
irrelevant to the jury’s disposition of the surviving claims”). Finally, Rhoads will likely be
prejudiced by evidence of its previous lawsuit against the Navy, as it would “signal to the jury that
the Navy is not in court because it has settled with Rhoads,” which could “induce the jury to decide

50

this case on improper grounds (e.g., the mistaken belief that Rhoads was already compensated for
its damages with the Navy).” (Doc. 223 at 2.)
Defendants contend that “[t]he placement of the Navy on the verdict sheet is […]
contingent on evidence being adduced at trial to establish that the Navy’s negligence contributed
to the damage allegedly caused by vibrations from Defendants’ pile driving.” (Doc. 209 at 6.) To
be sure, we do not disagree that Defendants must assemble and present evidence of the Navy’s
negligence at trial to warrant apportionment under the Fair Share Act. We merely emphasize that
the Rhoads’s previous lawsuit and settlement with the Navy are not “evidence” of the Navy’s
liability. Defendants’ assert that “[t]he theories of liability against the Navy are set forth in Rhoads’
lawsuit” and that they “must rely on and reference the allegations in the lawsuits filed against the
Navy to prove the theories of liability asserted against the Navy.” (Id. at 6-7) (emphasis in
original). We will not preclude Defendants from adopting Rhoads’s theories of liability against the
Navy, in acknowledgement of the fact that a defendant must necessarily “step into the shoes” of
the plaintiff to present evidence of a former co-defendant’s negligence at trial. (Doc. 180 at 23)
(“In order to warrant apportionment of liability under the Fair Share Act, Defendants must present
facts at trial to support a prima facie case of negligence against the Navy.”). That said, we will
preclude Defendants from referencing Rhoads’s lawsuit against the Navy or in any way informing
the jury that their theory of liability against the Navy originated with Rhoads.
Finally, Defendants argue that Plaintiff’s request is “premature,” and that we would be
better informed as to the prejudicial effect of this evidence and the issuance of an appropriate
limiting instruction when viewed in light of the trial record. (Doc. 209 at 10.) We disagree and
remind Defendants that “the Federal Rules of Evidence provide a district court with broad
discretion to exclude collateral matters that are likely to confuse the issues.” Kant v. Seton Hall

51

Univ., 279 F. App’x 152, 157 (3d Cir. 2008) (quoting United States v. Casoni, 950 F.2d 893, 919
(3d Cir. 1991)) (internal quotation marks omitted). It does not stretch the imagination to
comprehend the prejudice that would ensue if we admitted evidence of either Rhoads’s lawsuit or
settlement with the Navy, and we are satisfied that even the most comprehensive limiting
instruction could not cure its effect. We do concede, however, that if Defendants present facts in
support of the Navy’s liability at trial, the jury may wonder why the Navy is absent from the
defense table. To that end, balancing the interests of both parties, we will instruct the jury at the
outset of the case and before it is charged that it should not speculate as to why the Navy is not at
trial. 28 See Sikkelee, 522 F. Supp. 3d at 146. Notwithstanding this sole, narrow instruction,
Plaintiff’s motion is granted.
v. Preclude Reference to the Appraisals of Rhoads’ Property by Dunkin
Real Estate Advisors (Dkt. 15-921, Docs. 197, 212, 224)
Plaintiff also seeks to preclude Defendants from referring to, or relying on in any way, the
appraisals of Rhoads’s property by Dunkin Real Estate Advisors (“Dunkin”) in presenting its
counter-theory of damages. 29 (Doc. 197-2 at 2.) For context, Plaintiff explains that “Dunkin was

28

In the event that we determine sufficient evidence has been adduced at the close of trial to
warrant the Navy’s inclusion on verdict form, we will modify our instruction appropriately.
29

Plaintiffs are correct that, in challenging its proffered damages theory, Defendants have the
burden of proving its fair market value damages counter-theory. We are guided by the case law
that Plaintiff has identified:
[I]n Pennsylvania, the measure of damages is the cost of repair not
to exceed the fair market value of the property at the time of loss.
[…] Although there are no Pennsylvania cases on this point,
common sense would dictate that it is defendant’s burden to
challenge plaintiff's damages. Placing that burden on the plaintiff
would seriously undermine the adversarial nature of our trial system.
We approvingly quote the following: “Where there are two possible
measures of damages and plaintiff adopts one of them, it is
52

retained by or on behalf of lenders as part of Small Business Administration financing” to appraise
the value of Rhoads’s leasehold interest in the property. (Id. at 4) (citing Doc. 168-1, Rhoads Dec.
¶ 15). The appraisals, which were issued in 2013 and 2016, “themselves state that they are not
appraisals of the fair market value of the real property[,]” and “were not prepared for, on behalf
of, or at the direction of Rhoads.” (Id. at 3-4) (emphasis added). Rhoads filed this motion in
anticipation that Defendants will attempt to use the Dunkin appraisals at trial to prove their fair
market value theory of damages. (Id.) As a procedural matter, Plaintiff asserts that this theory
requires expert testimony, and that “Defendants have not disclosed Dunkin as an expert witness or
presented its appraisals as expert opinions” as required by Federal Rule of Civil Procedure 26, and
that we should exclude this evidence pursuant to the automatic sanction of preclusion set out in
Federal Rule of Civil Procedure 37. (Id. at 4-6.) Plaintiff also claims that it would be prejudiced
by the admission of this evidence, as Rhoads did not have the opportunity to depose Dunkin or file
a Daubert challenge. (Id. at 7.) Moreover, Plaintiff insists that this evidence is irrelevant, as Dunkin
appraised the fair market value of Rhoads’s leasehold interest in the property for lender purposes,
not the fair market value of the property itself. (Id.)
As Plaintiff pointed out, when we previously considered the parties’ arguments as to the
measure of special use damages versus the measure of fair market value damages, we explained

incumbent on defendant to show that the other measure would be
less expensive to him.”
Moyer v. White, 48 Pa. D&C 3d 487, 503 (1988) (quoting 25A C.J.S. § 144(e) at 22). Here, Rhoads
has presented evidence of the cost of repair and replacement of the property. Accordingly, the
burden has shifted to Defendants to present evidence of the fair market value of the property. See
Watsontown Brick Co. v. Hercules Powder Co., 265 F. Supp. 268, 275 (M.D. Pa. 1967), aff'd, 387
F.2d 99 (3d Cir. 1967) (“[W]here plaintiff also introduces evidence of the cost of repairs to the
property the burden shifts to defendant to establish matters asserted by him in mitigation or
reduction of the amount of damages.”).
53

that expert reports would be necessary to this question. (Doc. 150 at 4.) Defendants, too, conceded
at that time that “whether a dry dock has an ascertainable market value requires expert testimony
because such an analysis is outside of the average juror’s normal realm of experience.” (Doc. 77
at 7, n.1) (citing Young v. Commonwealth of Pa. Dep’t. of Transp., 744 A.2d 1276, 1278 (Pa.
2000)). The time for expert discovery has passed, without any indication by Defendants that they
intended to affirmatively employ Dunkin’s findings in support of their fair market value damages
theory. Defendants do not deny that they failed to designate Dunkin as an expert, however, they
assert that Rhoads cannot be prejudiced by the inclusion of this evidence at trial, as it was
“produced [by Rhoads] during ordinary fact discovery between the parties” and that “Plaintiffs
had every opportunity to depose Dunkin.” (Doc. 212-2 at 4.) We remind Defendants of the standard
for exclusion under Rule 37, which we set out in our prior Daubert decision:
[Rule 37] provides that “[i]f a party fails to provide information or
identify a witness as required by Rule 26(a) or (e), the party is not
allowed to use that information or witness to supply evidence on a
motion, at a hearing, or at a trial, unless the failure was substantially
justified or is harmless.” […] As discussed above, the Third Circuit
has set out five factors that trial courts may consider in determining
whether exclusion of evidence or a witness is appropriate: “(1) the
prejudice or surprise in fact of the party against whom the excluded
witnesses would have testified or the excluded evidence would have
been offered; (2) the ability of that party to cure the prejudice; (3)
the extent to which allowing such witnesses or evidence would
disrupt the orderly and efficient trial of the case or of other cases in
the court; (4) any bad faith or willfulness in failing to comply with
the court’s order; and (5) the importance of the excluded evidence.”
We are further mindful that “[t]he importance of the evidence is
often the most significant factor,” and that “[t]he non-producing
party shoulders the burden of proving substantial justification for its
conduct or that the failure to produce was harmless.”
(Doc. 150 at 48-49) (citing ZF Meritor, LLC v. Eaton Corp., 696 F.3d 254, 298 (3d. Cir. 2012)).
In applying these factors below, we conclude that preclusion of the Dunkin material is appropriate.

54

First, we find that Rhoads has been prejudiced by Defendants’ failure to provide a timely
expert disclosure. Although Rhoads itself produced the Dunkin appraisals during fact discovery,
and therefore could not have been “surprised” by the contents of the appraisals, Defendants have
nonetheless deprived Rhoads of the opportunity to prepare a Daubert motion due to their failure
to designate Dunkin as an expert. Defendants claim that Rhoads could have deposed Dunkin at
any time, but Rhoads had no obligation to initiate the deposition of an expert witness that it was
not using in support of own case and that was otherwise unidentified by Defendants. The mere fact
that Rhoads produced documents authored by Dunkin during discovery did not give rise to an
affirmative duty on Rhoads to depose Dunkin. Further, the parties are unable to cure this prejudice,
as the appropriate deadlines have expired: Defendants’ expert disclosures “regarding damages”
were due on September 15, 2020; expert discovery closed on January 15, 2021; the parties’
Daubert challenges were resolved on July 2, 2021. (Docs. 119, 127, 150.) The time for disclosures
has elapsed and a trial date has been set; we will not allow Defendants to “disrupt the orderly and
efficient” litigation process by passing off documentary evidence it received in discovery as expert
opinion. See Mente Chevrolet Oldsmobile Inc. v. GMAC, 728 F. Supp. 2d 662, 679 (E.D. Pa. 2010),
aff'd, 451 F. App'x 214 (3d Cir. 2011) (excluding expert testimony revealed two weeks before
trial). Finally, Defendants fail to offer any reason for their non-compliance with these deadlines,
instead attributing the fault to Rhoads.
In reviewing Defendants’ briefing on this issue, we feel an overwhelming sense of déjà vu.
At the Daubert stage, Defendants made these exact same arguments in defense of their failure to
timely disclose another expert, Vitzthum. Accordingly, we are prepared to dismiss Defendants’
arguments now as to Dunkin in the same manner as we did then as to Vitzthum:
[W]e are not persuaded that [Rhoads’s] decision not to depose
Vitzthum weighs against Rhoads. Indeed, Defendants have an
55

affirmative obligation to provide compliant expert disclosures. To
the contrary, Rhoads has no affirmative obligation to depose
Defendants’ witnesses, and it is certainly has no obligation to utilize
its depositions as a substitute for Defendants’ compliant disclosures
or to remedy Defendants’ failure to provide them. Rather, as Rhoads
asserts, the only way to cure this prejudice at this stage would be to
reopen expert discovery, which has been closed for over five
months, require Defendants to provide a compliant expert
disclosure, permit Rhoads to depose Vitzthum and to submit a new
Daubert motion. However, Defendants have not so much as
requested the opportunity to pursue any cure, and instead rest only
on their attempt to direct blame at Rhoads’ decision not to depose
Vitzthum. We are therefore unwilling to pursue the cumbersome,
costly, and time-consuming cure that would be necessary at stage,
particularly considering the circumstance that Defendants have not
even requested it.
⸳⸳⸳
Defendants’ apathetic response to Rhoads’ concerns regarding their
expert disclosures raises legitimate questions with respect to
whether there was “any bad faith or willfulness” in failing to
comply. That is, Defendants did not offer any reason whatsoever, let
alone any “substantial justification,” for their failure to timely
provide a compliant expert disclosure. Rather, they merely attempt
to argue that their failure was harmless by shifting the blame to
Rhoads for opting not to depose Vitzthum.
(Doc. 150 at 50-51.)
Having rejected these arguments, we turn to “the most significant factor,” in our analysis:
the importance of the evidence to be excluded. ZF Meritor, 696 F.3d at 298. Despite Plaintiff’s
insistence that the Dunkin appraisals address the value of Rhoads’s leasehold interest only,
Defendants point out that Dunkin calculated the fair market value of the property, unencumbered
by Rhoads’s lease, at between $5,400,000.00 and $5,600,000.00. (Doc. 201-17 at 44); (Doc. 20118 at 40.) Even so, we note that the express purpose of the appraisals was to “develop an opinion
of the ‘as is’ market value of the leasehold interest of the subject property.” (Doc. 201-18 at 3)
(emphasis in original.) The fact that the appraisals include the estimated fair market value of the

56

property is of little import when we consider that this estimate was devised only for the purpose
of calculating the value of Rhoads’s lease—not for calculating the value of the property itself.
Indeed, Dunkin specifically instructs that the document “shall be considered only in its entirety”
and that “[n]o part of this appraisal report shall be utilized separately or out of context.” (Doc. 20118 at 59.) The appraisals themselves also caution that they were made subject to certain “general
assumptions” and “limiting conditions” about the underlying property. 30 (Id.) We will not permit
Defendants to cherry-pick information from the Dunkin reports to support their fair market value
damages theory. Given that the value of Rhoads’s leasehold is not at issue in this case, we are
persuaded that this evidence is insignificant. In light of the foregoing analysis, we find that the five
factors set out by the Third Circuit weight in favor of excluding the Dunkin reports to the extent
they are offered as independent expert reports. 31
That said, we must address Defendants’ argument that their experts Wes Grover (“Grover”)
and James Schofield (“Schofield”) should be allowed to reference and rely on the appraisals at
trial, as they did in their reports. (Doc. 212-2 at 6.) They contend that the appraisals are admissible
under Federal Rule of Evidence 703 as “facts or data” on which their experts have been “made
30

Specifically, Dunkin made the following assumptions about the subject property: “title is
marketable and free and clear of all liens, encumbrances, encroachments, easements and
restrictions,” “the property is under responsible ownership and competent management,” “there
are no encroachments, zoning violations or restrictions,” “the property is in compliance with all
applicable building, life-safety, environmental, zoning, and other federal, state and local laws,
regulations and codes,” “there are no hidden or unapparent conditions in the structural components,
foundation, HVAC, plumbing, electric systems, subsoil, etc. which would render the property
more or less valuable,” “there is no [presence of presence of asbestos, urea-formaldehyde foam
insulation, or other hazardous materials] that would cause a loss in value.” (Doc. 201-18 at 59-61.)
31

Plaintiff also claims that “because Defendants have no expert testimony on market value of
Rhoads’s property, Defendants should be precluded from arguing that Rhoads’s damages are in
any way limited by market value.” (Doc. 197-2 at 4.) As we have stated before, “the jury will be
presented with the available evidence and the parties’ respective arguments on this issue, at which
point they will determine how to measure Plaintiff’s alleged property damage.” Supra note 19.
57

aware of or personally observed.” (Id.); see also Fed. R. Evid. 703. 32 Although the Federal Rules
of Evidence “do not permit experts to simply ‘parrot’ the ideas of other experts or
individuals, experts are permitted to rely on materials used by other experts in developing their
own opinions.” I.B.E.W. Loc. Union 380 Pension Fund v. Buck Consultants, No. CIV. A. 03-4932,
2008 WL 2265269, at *3 (E.D. Pa. June 3, 2008) (internal citations omitted). That is, “experts may
use a mix of objective data and subjective analysis from another expert to create an admissible
report, and an expert's knowledge of specific facts regarding the incident—or lack thereof—goes
to the weight accorded to that expert’s report and testimony, rather than its admissibility.” Id.
(internal citations and quotation marks omitted). There is no dispute that Plaintiff disclosed the
Dunkin appraisals during the course of discovery, and that Plaintiff was aware that Grover and
Schofield relied on those appraisals in forming their opinions. Accordingly, Defendants assert that
their experts “should be permitted to testify about their reliance on the Dunkin appraisal report at
trial.” (Id.)
At the Daubert stage, we approved of the qualifications, reliability, and “fit” of both
Schofield and Grover, after reviewing the data on which they based their opinions. We explained
that Schofield was retained “to opine on the age, maintenance, and repair of the dry dock,” and
that he concluded “that the condition of the dry dock was consistent with its age and that it had
suffered from a lack of maintenance since the 1970s.” (Doc. 150 at 54.) We found that “Schofield’s
testimony will assist the jury in understanding the evidence as it relates to Rhoads’ damages

32

Federal Rule of Evidence 703 reads as follows: “An expert may base an opinion on facts or data
in the case that the expert has been made aware of or personally observed. If experts in the
particular field would reasonably rely on those kinds of facts or data in forming an opinion on the
subject, they need not be admissible for the opinion to be admitted. But if the facts or data would
otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their
probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial
effect.” Fed. R. Evid. 703.
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claims” and concluded that he was an admissible expert. (Id. at 59-60.) Similarly, Grover was
retained “to assist in the evaluation of the financial claims by Rhoads.” (Id. at 60.) As a damages
rebuttal expert, Grover concluded that “five categories of damages calculations Rhoads’ experts
provided—Lost Income, Extra Expenses, Future Extra Expenses, Dry Dock 2 and Crane Repair
Costs, and Building 669 Repair and Replacement Costs—are ‘overstated,’ ‘speculative,’ and/or
‘unsupported’ and therefore ‘should not be relied upon.’” (Id.) Ultimately, we found that “Grover’s
testimony will assist the jury in evaluating the complexities of Rhoads’ experts’ damages
calculations” and concluded that he, too, was an admissible expert. (Id. at 64.)
Despite Plaintiff’s protests, we do not disagree with Defendants that the Dunkin appraisals
may be admissible in this limited context. Grover utilized the Dunkin appraisals in his evaluation
of Building 669’s condition, noting that, “[f]rom the appraiser’s assessment, it appears that the
building has not been well maintained[.]” (Doc. 227-1, Levin Dec., Ex. 1 at 35.) Plaintiff contests
Grover’s opinions, claiming that Grover “incorrectly” recounts information about Building 669
from the reports, and that “he does not use the appraisal for fair market value,” nor does he “include
a single damage calculation in his report.” (Doc. 224 at 7.) As to Schofield, Plaintiff claims that
he “simply lists” the appraisals as documents that he “reviewed,” but also does include any damage
calculation or property valuation. (Id. at 8) (citing Doc. 227-2, Levin Dec., Ex. 2 at 9.) The extent
of Grover and Schofield’s reliance on the Dunkin appraisals affects the weight of their expert
testimony, but it is not a basis to render their testimony, or the appraisals, inadmissible. We already
acknowledged at the Daubert stage that Grover’s report “does not contain any independent
damages calculations or otherwise provide any alternative damages figures to contradict those of
Rhoads’ experts.” (Doc. 150 at 61.) We acknowledge the same here as to Schofield’s report.
Neither Grover nor Schofield will not be permitted to introduce damages calculations or offer any

59

conclusions as to the fair market value of the property, as those opinions were not included in the
scope of their original reports. 33 To the extent that Grover or Schofield relied on the Dunkin
appraisal in arriving at the opinions that were presented and approved by this Court at the Daubert
stage, that testimony will be permitted.
To summarize, the Dunkin appraisals may not be offered as affirmative expert opinions as
to the fair market value of the property, due to Defendants’ failure to comply with the expert
disclosure requirements of Rule 26. We will, however, allow Defendants’ experts Grover and
Schofield to testify about portions of the Dunkin appraisals upon which they previously relied. For
the above stated reasons, Plaintiff’s motion is granted, subject to the exception discussed herein.
vi. Preclude Defendants from Presenting Arguments or Opinions that
Plaintiffs Can Keep Any Verdict and Not Perform Any Repairs to the
Property (Dkt. 15-921, Docs. 198, 213, 225)
Plaintiff next seeks to prevent Defendants from presenting any argument that Plaintiff
could keep the verdict as to its property damage claim and not perform any repairs to the property.
(Doc. 198-2 at 4.) In filing this motion, Plaintiff turns our attention to Defendants’ previous motion
for summary judgment, in which they argued that “there is nothing in the record indicating that
Rhoads has any legal obligation to make any repairs to the Leased Premises[,]” therefore, “Rhoads
could obtain a recovery [for property damage] and never repair the property[.]” (Dkt. 15-921, Doc.
162-2 at 12.) Accordingly, Defendants asserted that “City/PAID would be left with unrestored
property and their own legal right to pursue any and all claims for damages to said property.” (Id.

33

We clarify that our determination here does not necessarily foreclose the possibility that Grover
and Schofield could be permitted to offer rebuttal testimony on this subject in the event that
Plaintiff’s experts’ testimony opens the door to it, pursuant to Federal Rule of Evidence 703. See
Hill v. Reederei F. Laeisz G.M.B.H., Rostock, 435 F.3d 404, 423 (3d Cir. 2006). We reserve any
rulings on this narrow point until the appropriate circumstances at trial.
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at 12-13.) In anticipation that Defendants will raise these same arguments at trial, Plaintiff seeks
to preclude this issue at trial on several bases. First, Plaintiff contends that Defendants’ position is
inconsistent with our prior finding that a valid assignment exists between PAID and Rhoads, in
which we concluded that Rhoads “will incur the costs of repair or replacement to the leased
premises[.]” (Doc. 198-2 at 4) (citing Doc. 182 at 22). Furthermore, Plaintiff insists that this
argument is “contrary to the record evidence,” as it has produced correspondence between Rhoads
and PAID that memorializes “the understanding between the parties and confirming in writing
Rhoads’s obligation to use the net proceeds from this litigation to repair the property.” (Id. at 4-5)
(citing Doc. 201-20, Ex. 20, Rhoads Dec). Finally, Plaintiff claims that any argument by
Defendants can “keep the money and run without making the repairs” would prejudice Rhoads,
create confusion, and mislead the jury “into concluding that Rhoads should not be compensated
for the damage because it will not make the repairs.” (Id. at 4.)
In response, Defendants insist that we “did not affirmatively find that a valid assignment
exists” at the summary judgment stage, and that Rhoads’s obligations as to the property remain a
“question of fact” for the jury. (Doc. 213-2 at 3.) Therefore, this motion is “premature,” and
Defendants should be “entitled to argue that Plaintiffs have no legal obligation under the alleged
assignment to repair the Property consistent with the evidence, including the terms of the lease,
presented at trial.” (Id.) As we explained above, Defendants misunderstand the effect of our
summary judgment decision. See supra Section III.A.vi. At that stage, we made a legal finding
based on uncontested facts that PAID executed a valid assignment with Rhoads, divesting itself of
its right to pursue claims for property damage and transferring that right to Rhoads. (Doc. 182 at
20-23) (“We accept that Rhoads received a valid assignment of PAID’s right to pursue claims
related to the damage of PAID’s property.”). Accordingly, any argument by Defendants that

61

Rhoads can pocket the proceeds of its property damage claim and PAID could later bring its own
claim against Defendants would conflict with our determination that Rhoads and PAID forged a
binding assignment on this issue. As Plaintiff points out, Defendants’ argument is also unsupported
by the documents exchanged between PAID and Rhoads, which set out the terms of Rhoads’s legal
obligation to make necessary repairs to the leased property. Having reviewed the available record
evidence in conjunction with our prior decision as to Rhoads and PAID’s assignment, we are
satisfied that there is no basis for Defendants’ arguments at trial. Even if we agreed that these
arguments were relevant to any fact or claim at trial, they are inadmissible under Rule 403, as they
would likely prejudice Rhoads, create confusion, and mislead the jury. For these reasons,
Plaintiff’s motion is granted.
vii. Preclude Defendants from Presenting Any Argument that Duffield
Associates, Inc. and/or HDR Engineering, Inc. Should Be Included on
the Verdict Sheet (Dkt. 15-921, Doc. 199)
Plaintiff also seeks to preclude Defendants from presenting any argument that Duffield
Associates, Inc. (“Duffield”) or HDR Engineering, Inc. (“HDR”) should be included on the verdict
sheet. 34 (Doc. 199-2 at 2.) For context, Plaintiff explains that Duffield was retained by Defendant
Shoreline for “primary construction review, reviewing pile installation and sheet pile installation.”
(Id. at 2) (internal citations omitted). Similarly, HDR was retained by Defendant Triton to design
“the demolition plans for the pier[,]” which included the use of piles. (Id. at 5) (internal citations
omitted). Plaintiff notes that Duffield and HDR are not, and never were, parties to this litigation.

34

Plaintiff also argues that “in the alternative, [Defendants should be precluded] from arguing
Defendants are not vicariously liable (or have respondeat superior liability) for the actions of
Duffield and HDR.” (Doc. 199-2 at 2.) Given that Defendants have not opposed Plaintiff’s request
on this point, we agree that Defendants are not permitted to argue that they are not vicariously
liable via respondeat superior for the actions of Duffield or HDR as their employed subcontractors.
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(Id. at 4-5.) Citing the original pleadings in this matter, Plaintiff emphasizes that neither Shoreline
nor Triton ever named Duffield or HDR in their respective responses to the Complaint, or
otherwise indicated that they should be considered legally responsible actors in this litigation. (Id.)
Although Defendants have not made any affirmative indication that they plan to apportion
responsibility to Duffield or HDR, Rhoads explains that it nonetheless filed this motion in
anticipation that “Defendants will attempt to argue that Duffield and/or HDR should be included
on the verdict sheet in order to reduce their liability exposure” under the Fair Share Act. (Id. at 6).
As we set out in our earlier summary judgment decision, the Fair Share Act “expands the
scope of persons to be submitted to the factfinder for apportionment of liability by allowing the
allocation of responsibility to a settled nonparty.” (Doc. 180 at 5) (citing Timmonds v. AGCO
Corp., No. 2916 EDA 2019, 2021 WL 1251868, at *38 (Pa. Super. April 12, 2021)) (internal
quotation marks omitted). This exception specifically applies to “any defendant or other person
who has entered into a release with the plaintiff with respect to the action and who is not a party[.]”
42 PA. CONS. STAT. § 7102, et seq. (2011) (emphasis added); see also Roverano v. John Crane,
Inc., 226 A.3d 526, 547 (Pa. 2020) (“From its text, Section 7102(a.2) contemplates apportioning
liability to two entities: (1) defendants; or (2) any non-party “who has entered into a release with
the plaintiff with respect to the action.”). As Plaintiff correctly points out, neither Duffield nor
HDR are or were defendants in this action, nor have they “entered into a release” with Rhoads in
reference to this litigation. (Doc. 199-2 at 5-6.) We agree with Plaintiff that the plain language of
the Fair Share Act would preclude the inclusion of Duffield and HDR on the verdict form.
Notably, Plaintiff’s motion to exclude these arguments is unopposed, as Defendants did
not avail themselves of the opportunity to file a response. See E.D. Pa. Civ. R. 7.1(c) (“In the
absence of timely response, the motion may be granted as uncontested[.]”) We consider

63

Defendants to have conceded Plaintiff’s arguments on this basis. Even without the benefit of any
opposition by Defendants, we are nonetheless convinced there is no legal justification for any
argument that Duffield or HDR should be included on the verdict sheet under the Fair Share Act.
For these reasons, Plaintiff’s motion is granted.
viii. Take Judicial Notice of Three Government Documents (Dkt. 15-921,
Docs. 200, 210, 226)
Finally, Plaintiff asks us to take judicial notice of three government documents that are
relevant to Rhoads’s claimed damages regarding its inability to obtain certifications and contracts
with entities such as the U.S. Navy. (Doc. 200-2 at 3.) The first document is the Department of
Defense Standard Practice—Safety Certification Program For Drydocking Facilities and
Shipbuilding Ways For U.S. Navy Ships—MIL-STD-1625D(SH) (“Document 1”). (Id.)
Document 1 outlines the “standard approved for use by the Naval Sea Systems Command,
Department of the Navy, and is available for use by all Departments and Agencies of the
Department of Defense.” (Id. at 4.) The document can be accessed on “www.everyspec.com, a
website that provides access to over 55,000 Military, DoD, Federal, NASA, DOE, and Government
specifications, standards, handbooks, and publications.” (Id.) The second document is Department
of the Navy, Naval Sea Systems Command, NAVSEA Instruction 4280.2C (“Document 2”). (Id.
at 3.) Document 2 was issued by the U.S. Navy “[t]o revise policy, guidelines, and procedures
governing the issuance of the Master Ship Repair Agreement (MSRA) and the Agreement for Boat
Repair (ABR) to firms meeting the eligibility requirements prescribed in enclosures (1) Master
Ship Repair Agreement (MSRA) Eligibility Requirements and (2) Agreement for Boat Repair
(ABR) Eligibility Requirements respectively.” (Id. at 4.) The third and final document is DFARS
Regulation for Master Agreement for Repair and Alteration of Vessels, Subpart 217.71

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(“Document 3”). (Id.) Document 3 “contains acquisition policies and procedures for MSRAs,
including contract clauses” and is accessible on the government’s website. (Id.)
Plaintiff cites to Federal Rule of Evidence 201, which sets out the court’s authority to take
judicial notice of “adjudicative facts” in the following circumstances: “The court may judicially
notice a fact that is not subject to reasonable dispute because it: (1) is generally known within the
trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources
whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). Plaintiff also points out
that “The court must take judicial notice if a party requests it and the court is supplied with the
necessary information.” Fed. R. Evid. 201(c)(2) (emphasis added). Here, Plaintiff asserts that all
three documents are “official government documents displaying the Department of Defense seal”
and were issued either by the Department of Defense or the Department of the Navy. (Doc. 2002 at 5.) Plaintiff points us to several examples of courts taking judicial notice of government
documents. See Anchor Sav. Bank, FSB v. United States, 81 Fed. Cl. 1, 97 n. 40 (2008) (concluding
it is “appropriate” to take judicial notice of FAS 109 because “Federal Accounting Standards
Board, the organization responsible for FAS 109, is a transparent, reliable professional
organization and the court has no cause to question the accuracy of the financial accounting
standards posted on the organization’s website”); White v. SSA, 111 F. Supp. 3d 1041, 1047-48
(N.D. Cal. 2015) (taking judicial notice of Social Security Administration (SSA) policy documents
accessible on SSA website and noting decision does not preclude party from presenting evidence
that policies changed, were not followed, or conflict with other policies); Brown v. Fed. Express
Corp., 62 F. Supp. 3d 681, 687 (W.D. Tenn. 2014) (taking judicial notice of “standards and
procedures propagated by the CDC”). Accordingly, Plaintiff believes judicial notice is warranted,
as the facts contained in the documents are “not subject to reasonable dispute,” mainly due to the

65

fact that the government sources of these documents are “reputable and cannot be reasonably
questioned.” (Id. at 6.)
Defendants claim that this motion is “premature” and that we should deny Plaintiff’s
motion due to the fact that “[t]he Government documents total approximately 165 pages, and no
discrete ‘facts’ have been identified.” (Doc. 210 at 6.) Defendants claim that there “is no basis to
know how Rhoads will seek to use these Government documents at trial and which, if any, will be
relevant or otherwise admissible as evidence at trial to prove damages.” (Id.) To this end,
Defendants also note that “it is error to judicially notice a fact which may be the subject of some
dispute in litigation.” (Id.) (citing LaSalle Nat. Bank v. First Connecticut Holding Grp., LLC., 287
F.3d 279, 290 (3d Cir. 2002)). We are not persuaded by Defendants’ arguments. First, these
documents set out the standards that govern the industry certifications and government contracts
at issue in this case. They are likely to help the jury determine if Rhoads’s claimed lost profits
damages are “more or less probable,” and will likely be facts “of consequence.” Fed. R. Evid. 401.
Further, the length of the documents and the volume of facts contained within are not significant
factors in our assessment of whether to take judicial notice of this evidence. Our focus is whether
the information in the three documents “is not subject to reasonable dispute,” as it “can be
accurately and readily determined from sources whose accuracy cannot reasonably be questioned.”
Fed. R. Evid. 201(b). Defendants claim that it is “disputable” that the documents will “support
Rhoads’s damages claim.” (Doc. 210 at 4.) Defendants misapprehend the standard set out by Rule
201 and conflate the parties’ subjectively disputed claims with the documents’ objectively
undisputable facts. We are aware that Rhoads’s claimed damages and the manner in which they
seek to prove them is disputed by Defendants. This dispute has no bearing on whether the facts
contained in Documents 1, 2, and 3 are accurate and authentic. At this time, Defendants have not

66

articulated any argument that the information contained in the identified government documents
“can be reasonably questioned.” Having been supplied with the necessary information by Plaintiff,
we will take judicial notice of Documents 1, 2, and 3. 35 Plaintiff’s motion is granted.
IV.

CONCLUSION
For the foregoing reasons, Defendants’ motions are denied, and Plaintiff’s motions are

granted, subject to the exceptions and conditions articulated above. An appropriate Order follows.

35

In opposition to Defendants’ motion to “Preclude Lay Testimony Regarding Dry Dock
Qualifications for Certifications and the Impact of Sinkholes on the Certification Process” (Doc.
188), Plaintiff asserted that if we took judicial notice of these three government documents, then
it would likely not need to introduce Mr. Rhoads’s or other lay witness testimony on “applicable
standards and necessary certifications for Navy ship repair work.” (Doc. 203 at 3.) Seeing as we
have taken judicial notice of these three documents here, and that we allowed lay testimony on this
issue as outlined above, see supra Section III.A.v., Plaintiffs may utilize either or both kinds of
evidence at trial.
67