Ihde v. HME, Inc.
MEMORANDUM ORDER AND OPINION Denying 41 Supplemental MOTION to Strike and Exclude Testimony of Plaintiff's Expert Kerri Olsen filed by HME, Inc., Granting in Part and Denying in Part 48 MOTION to Strike and Exclude Rebuttal Testimony of Plaintiff's Expert Kerri Olsen filed by HME, Inc.. Signed by Magistrate Judge Christine A. Nowak on 8/1/17. (cm, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
CIVIL ACTION NO. 4:15-CV-00585-CAN
MEMORANDUM ORDER AND OPINION
Pending before the Court are Defendant HME, Inc.’s (“Defendant”) Supplemental Motion
to Strike and Exclude Testimony of Plaintiff’s Expert Kerri Olsen [Dkt. 41] and Motion to Strike
and Exclude Rebuttal Testimony of Plaintiff’s Expert Kerri Olsen [Dkt. 48] (collectively the
“Motions”). On April 12, 2017, the undersigned conducted a hearing and heard oral argument
from both Plaintiff Glenn Ihde (“Plaintiff”) and Defendant on the Motions [Dkt. 58]. After
considering the Motions, all relevant filings and evidence, as well as the oral argument of counsel
at hearing, the Court finds that Defendant’s Supplemental Motion to Strike and Exclude Testimony
of Plaintiff’s Expert Kerri Olsen [Dkt. 41] is DENIED, and that Defendant’s Motion to Strike and
Exclude Rebuttal Testimony of Plaintiff’s Expert Kerri Olsen [Dkt. 48] is GRANTED IN PART
AND DENIED IN PART.
Plaintiff filed the instant lawsuit seeking damages for breach of contract, quantum meruit
recovery of the market value of services rendered, and attorneys’ fees and costs [Dkts. 1; 31].
Plaintiff’s claims arise out of Defendant’s alleged failure to pay Plaintiff for “steel detailing
services” he provided. Defendant is alleged to have caused significant delays throughout the
ORDER – Page 1
project and often changed deadlines: Plaintiff in essence alleges that performance under the
contract became a moving target. Plaintiff asserts Defendant paid only $28,710.00 of Plaintiff’s
first bill (for $31,300.00) and has yet to pay Plaintiff’s second bill (for $27,710.00). Plaintiff
claims $126,280.00 remains unpaid.1 Plaintiff proffers Kerri Olsen’s expert report (the “Olsen
Expert Report”) [Dkt. 41, Ex. A] in support of his allegations that Plaintiff substantially performed
under the contract and the value of Plaintiff’s services. Plaintiff also proffers Olsen’s rebuttal
report (“Rebuttal Report”) [Dkt. 48, Ex. A] (collectively, “Olsen’s Reports”) directed at each of
Defendant’s seven experts, namely Lyle Charles, Don Grigg, Bobbi Fletchall, Dan Canda, Brian
Aubert, Kevin Rake, and John Haas.
Defendant moved to strike Olsen’s Expert Report on December 12, 2016 [Dkt. 41]
(“Motion to Strike Expert Report”). Plaintiff filed a Response on December 22, 2016 [Dkt. 44],
and Defendant a reply on March 31, 2017 [Dkt. 52].
On February 16, 2017, Defendant also moved to strike Olsen’s Rebuttal Report [Dkt. 48]
(“Motion to Strike Rebuttal Report”). Plaintiff filed a Response on March 6, 2017 [Dkt. 51], and
on March 13, 2017, Defendant filed a Reply [Dkt. 52]. Thereafter, on March 31, 2017, Plaintiff
filed a Surreply [Dkt. 55].
On March 30, 2017, Defendant requested a hearing on the Motions [see Dkt. 53]. The
Court held the hearing (“Hearing”) on April 12, 2017, at which each Party proffered additional
arguments and/or evidence [Dkt. 58].2 Olsen testified at Hearing regarding her methodology in
compiling the Expert Report and Rebuttal Report.
Plaintiff amended his Complaint to add a claim for $5,850.00 related to a separate project. This added claim has no
bearing on the Court’s analysis herein.
Specifically, Plaintiff proffered a binder containing copies of the materials Olsen considered in compiling her Expert
Report, which Plaintiff also timely provided to Defendant alongside Olsen’s Expert Report [Dkt. 58, Plaintiff’s Exs.
1-2], and Defendant proffered indices to its motion and case law binders that Defendant provided to the Court at
Hearing [Dkt. 58, Ex. 1].
ORDER – Page 2
Defendant seeks to strike each of Olsen’s Expert Report and her Rebuttal Report in their
entirety as well as any testimony she may give at trial, arguing the Reports do not comply with
Federal Rule of Civil Procedure 26 and that, even if they did, the Court should strike the Reports
because Olsen’s opinions do not pass muster under Federal Rule of Evidence 702. Defendant
argues Olsen’s Reports and potential testimony lack basis in evidence, are conclusory and
speculative, and provide no rationale based on any identifiable methodology. Defendant also
asserts the evidence on which Olsen does rely, namely three depositions, does not support her
conclusions, and that she improperly attempts to opine as to subjects for which she has no
expertise. Plaintiff contends in response that Olsen bases her reports and potential testimony on
her review of the contract documents produced. Plaintiff further asserts Olsen’s curriculum vitae
demonstrates her qualifications to opine on questions of document control and/or project
management in steel detailing and fabricating cases, given her years of experience and scholarship
in those fields. Plaintiff claims Olsen’s Reports suffice to permit her to opine as to (1) whether
Plaintiff substantially performed under the contracts at issue and (2) the value of Plaintiff’s
services as rendered. Defendant counters that, even if Olsen’s Reports were limited to these two
issues, Olsen still fails to sufficiently connect the dots between her purported methodology, the
facts, and her conclusions.
The Federal Rules of Civil Procedure set forth the procedures litigants must follow in
designating expert witnesses. Rule 26(a)(2)(B) provides in pertinent part:
Witnesses Who Must Provide a Written Report. Unless otherwise stipulated or
ordered by the court, this disclosure must be accompanied by a written report—
prepared and signed by the witness—if the witness is one retained or specially
employed to provide expert testimony in the case . . . The report must contain:
(i) a complete statement of all opinions the witness will express and the basis and
reasons for them;
ORDER – Page 3
(ii) the facts or data considered by the witness in forming them;
(iii) any exhibits that will be used to summarize or support them;
(iv) the witness’s qualifications, including a list of all publications authored in the
previous 10 years;
(v) a list of all other cases in which, during the previous 4 years, the witness testified
as an expert at trial or by deposition; and
(vi) a statement of the compensation to be paid for the study and testimony in the
In the Fifth Circuit, an expert report must be “detailed and complete” when submitted under Rule
26(a)(2)(B) to “avoid the disclosure of ‘sketchy and vague’ expert information.” Sierra Club,
Lone Star Chapter v. Cedar Point Oil Co., 73 F.3d 546, 571 (5th Cir. 1996). Expert reports that
do not provide the basis and reasons for the stated opinions, or that refer to the basis for the
opinions only in vague terms, are insufficient under Rule 26(a)(2)(B). See id. “To satisfy Federal
Rule of Civil Procedure 26(a)(2)(B), the report must provide the substantive rationale in detail
with respect to the basis and reasons for the proffered opinions. It must explain factually why and
how the witness has reached them.” Hilt v. SFC Inc., 170 F.R.D. 182, 185 (D. Kan. 1997), cited
favorably in Broxterman v. State Farm Lloyds, No. 4:14-CV-661, 2015 WL 11072132, at *2 (E.D.
Tex. Oct. 19, 2015) (Mazzant, J.). This requirement allows parties to prepare effectively for cross
examination of expert witnesses and, if necessary, to arrange for testimony by additional expert
witnesses. FED. R. CIV. P. 26(a)(2)(B) advisory committee’s note to 1993 amendments.
Under Rule 37(c), “[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 harmless.”
See Torres v. City of San Antonio, No. SA:14-CV-555-DAE, 2014 WL 7339122, at *1 (W.D. Tex.
Dec. 23, 2014). Indeed, the “sanction of exclusion is automatic and mandatory unless the
sanctioned party can show that its violation of Rule 26(a) was either justified or harmless.” Id.
But see FED. R. CIV. P. 37(c)(1) (providing the district court authority to order alternative sanctions
ORDER – Page 4
in addition to or instead of exclusion, such as costs or attorney’s fees). “The determination of
whether a Rule 26(a) violation is justified or harmless is entrusted to the broad discretion of the
district court.” Id. When evaluating whether a violation of Rule 26 is harmless for purposes of
Rule 37(c)(1), the court looks to four factors: (1) the explanation for the failure to disclose; (2) the
importance of the testimony or evidence; (3) potential prejudice to the opposing party in allowing
the testimony or evidence; and (4) the possibility of a continuance to cure such prejudice. Id.; see
also Hamburger v. State Farm Mut. Auto Ins. Co., 361 F.3d 875, 883 (5th Cir. 2004). In
conducting this analysis, the Court remains mindful that Rule 26 exists “to prevent unfair surprise
at trial and to permit the opposing party to prepare for rebuttal reports, to depose the expert in
advance of trial, and to prepare for cross-examination.” Payne v. Brayton, No. 4:15-CV-809, 2017
WL 194210, at *3 (E.D. Tex. Jan. 18, 2017).
Even if a Court determines an expert’s report meets the Rule 26(a) requirements, the Court
has an obligation to act as “gatekeeper” to ensure testimony from a qualified expert is both reliable
and relevant. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592-93 (1993); Pipitone v.
Biomatrix, Inc., 288 F.3d 239, 243-44 (5th Cir. 2002). The proponent must establish relevance,
by “demonstrat[ing] that the expert’s reasoning or methodology can be properly applied to the
facts in issue[,]” and reliability, by showing the “expert opinion . . . [is] more than unsupported
speculation or subjective belief.” Johnson v. Arkema, Inc., 685 F.3d 452, 459 (5th Cir. 2012). The
proponent must make this showing by preponderance of the evidence. Moore v. Ashland Chem.,
Inc., 151 F.3d 269, 276 (5th Cir. 1998). A “lack of reliable support may render [expert opinion]
more prejudicial than probative” in certain circumstances. Viterbo v. Dow Chem. Co., 826 F.2d
420, 422 (5th Cir. 1987) (citing Barrel of Fun, Inc. v. State Farm Fire & Cas. Co., 739 F.2d 1028,
1035 (5th Cir. 1984)). Importantly, however, the Court shall not judge the expert’s credibility, as
ORDER – Page 5
“the trial court’s role as gatekeeper is not intended to serve as a replacement for the adversarial
system.” United States v. 14.38 Acres of Land Situated in Leflore Cty., 80 F.3d 1074, 1078 (5th
Cir. 1996). But a court must determine a witness “is qualified as an expert by knowledge, skill,
experience, training, or education” as to the areas for which the party proffers the expert’s
testimony. FED. R. EVID. 702.
Defendant objects to each of Olsen’s Expert Report [Dkt. 41, Ex. 2] and her Rebuttal
Report [Dkt.48, Ex. 1]. Defendant challenges the Expert Report (1) for failure to comply with
Rule 26(a) requirements and (2) for failure to comply with the federal evidentiary requirement of
reliability [Dkt. 41]. Defendant challenges the Rebuttal Report for failure to comply with federal
evidentiary requirement of reliability and, in some instances, of qualification [Dkt. 48]. The Court
first addresses Defendant’s objection to Olsen’s Expert Report.
Defendant urges the Court to strike Olsen’s Expert Report in its entirety [Dkt. 41], arguing
the Expert Report does not comply with Federal Rule of Civil Procedure 26 and that, even if it did,
Olsen’s methodology remains suspect.
Federal Rule of Civil Procedure 26(a)(2)(B)
As noted supra, a Court must examine an expert report for compliance with
Rule 26(a)(2)(B), which requires that the expert provide six specific pieces of information: (1) “a
complete statement of all opinions the witness will express and the basis and reasons for them”;
(2) “the facts or data considered by the witness in forming them”; (3) “any exhibits that will be
used to summarize or support them”; (4) “the witness’s qualifications, including a list of all
publications authored in the previous 10 years”; (5) “a list of all other cases in which, during the
ORDER – Page 6
previous 4 years, the witness testified as an expert at trial or by deposition”; and (6) “a statement
of the compensation to be paid for the study and testimony in the case.” FED. R. CIV. P.
26(a)(2)(B).3 To the extent Defendant challenges the Expert Report for failure to comply with
Rule 26(a)(2)(B)’s basic form requirements, the Court finds Olsen’s Expert Report meets the basic
Rule 26(a)(2)(B) form requirements [see Dkt. 42, Ex. A]. Olsen provides a complete statement on
the first page of the Expert Report regarding her opinions on the value of the services Plaintiff
rendered, as well as the extent to which Plaintiff performed. She also explains on the same page
that she reviewed “the Plaintiff’s Original Complaint” and “the documents provided for review”
in reaching her conclusion about the value and the extent of services rendered and continues for
eleven additional pages to discuss how she reaches these conclusions. See FED. R. CIV. P.
26(a)(2)(B)(i)-(ii). In addition, Plaintiff provided copies at Hearing of the documents on which
Olsen relied [Dkt. 58, Plaintiff’s Exs. 1-2] and Olsen’s curriculum vitae [Dkt. 44 at 7-10], each of
which provides information regarding Olsen’s qualifications, her recent publications and
employment as an expert, and Plaintiff’s employment of her for the instant case. See FED. R. CIV.
P. 26(a)(2)(B)(iv)-(vi). Plaintiff’s proffer included the contract documents Olsen examined, as
well as the schematics for the project Defendant contracted with Plaintiff to help create. See FED.
R. CIV. P. 26(a)(2)(B)(iii). At Hearing, Defendant stipulated to receiving these documents
alongside Olsen’s Expert Report.
Defendant argues the Expert Report does not comply with Rule 26(a)(2)(B) for various reasons related to the Expert
Report’s substance that the Court finds more appropriately addressed under the Federal Rules of Evidence governing
expert opinion [Dkt. 41]. Defendant makes four specific arguments about analytical gaps it perceives in Olsen’s
Expert Report [see Dkt. 41 at 7-10]. These arguments relate not to the Expert Report’s compliance with Rule
26(a)(2)(B), which prescribes form (procedural) requirements for an expert’s report, but instead to Olsen’s compliance
with the Federal Rules of Evidence, which prescribe substance requirements for expert opinions. See, e.g., Amaya v.
City of San Antonio, No. 5:12-CV-00574-DAE, 2014 WL 3919569, at *2 (W.D. Tex. Aug. 11, 2014) (“Expert witness
testimony is governed by Federal Rule of Civil Procedure 26(a)(2) in unison with Federal Rule of Evidence 702, 703,
and 705. Rule 26(a)(2) outlines the procedural requirements of disclosure, while Rules 702, 703, and 705 address the
qualifications of the expert witness and the substance of the testimony.”).
ORDER – Page 7
Further, the Expert Report uses no uncertain “vague terms” in providing bases for its
conclusions: it refers specifically to American Institute of Steel Construction (“AISC”) provisional
guidelines, Olsen’s own experience, and the facts of the instant case (as Olsen understands them)
from deposition testimony of certain of Defendant’s employees [Dkt. 41, Ex. A]. Although
Olsen’s Expert Report sets forth the “why and how” of her conclusions in a somewhat jumbled,
inarticulate manner, the Court cannot find that the Expert Report lacks explanation of Olsen’s
rationale. Moreover, the Court finds the information within the Expert Report sufficient to permit
Defendant effectively to prepare for cross examination of Olsen at trial and to arrange for
testimony by its own expert witnesses in rebuttal. In sum, Olsen’s Expert Report complies with
Rule 26(a)(2)(B)’s requirements.
Federal Rule of Evidence 702 (Olsen’s Qualifications and Reliability)
As an initial matter, the Court notes the Parties agreed at Hearing that Olsen has the
requisite qualifications to opine as to steel detailing document control and project management,
and, accordingly, to Plaintiff’s performance and the value of that performance. In reviewing
Olsen’s curriculum vitae, the Court concurs she possesses the necessary qualifications for these
two topics; and Plaintiff advised at Hearing that she is proffered as an expert for no other topic.
Olsen has extensive experience working within the steel detailing industry, has produced
scholarship focused on the document control and project management aspects of the industry, and
has provided expert testimony on these topics many times before [see Dkt. 44 at 7-10]. The Court
finds Olsen bears the requisite qualifications to testify as to Plaintiff’s performance under the steeldetailing contract at issue here and the alleged value of that performance.
ORDER – Page 8
Reviewing Defendant’s briefing [Dkt. 41] and its arguments at Hearing, the Court discerns
Defendant makes three main arguments concerning the reliability of Olsen’s Expert Report. First,
Defendant contends Olsen’s Expert Report contains conclusory opinions for which Olsen fails to
provide sufficient explanation and support [Dkt. 41 at 7]. Defendant cites Olsen’s summary
(located on the first page of her report) as an example, asserting it lacks support and/or fails to
explain why the documents Olsen reviewed support the conclusions expressed therein [Dkt. 41 at
7]. Second, Defendant asserts Olsen makes factual errors in those few instances she does attempt
to connect her conclusions to the facts of the present case. As an example, Defendant claims Olsen
assumes on page four of her report that Defendant did not provide Plaintiff certain documents
(RFI-001 dated 06/12/2014, ASI-001 dated 06/11/2014, RFI-002 dated 06/10/2014, and ASI-002
dated 06/12/2014) when evidence (namely Dkt. 41, Ex. F) shows to the contrary [Dkt. 41 at 7]. In
another example, Defendant argues Olsen assumes on pages four through five of her report that
Bid Pack #2 was submitted late. Defendant argues this is incorrect and thus Olsen’s conclusion
(that starting over would have been the best option) is faulty [Dkt. 41 at 7-8]. Third, Defendant
claims Olsen erroneously concludes Defendant caused all of Plaintiff’s issues through contract
mismanagement because: (a) she determines based on lack of reference to AISC protocols in
depositions of certain of Defendant’s employees that Defendant did not comply with AISC
guidelines (even though Plaintiff never requested a 30(b)(6) corporate representative deposition);
(b) she determines based on the depositions of (i) Roenne and (ii) Canda, neither of which were
designated as 30(b)(6) depositions, that the “company process for a Quality Management System
is broken” [Dkt. 41 at 8].
ORDER – Page 9
Plaintiff argues in response that, though Olsen’s Expert Report is written in industry jargon
and accordingly may be difficult in places to understand, it certainly provides sufficient
explanation for its conclusions to pass muster under Rule 702. In particular, Plaintiff claims the
summary is just that—a condensed conclusion based upon Olsen’s observations made throughout
the Expert Report—and that Olsen’s placing the summary at the front of the Expert Report does
not alter the fact it relies upon the observations Olsen makes later in the document [Dkt. 44].
Plaintiff points to Olsen’s references throughout the Expert Report to the documents she reviewed
in reaching her conclusions as well as her detailed exposition of the AISC standards she applied
to the facts of this case obtained from her review of the underlying documents [Dkt. 44]. At
Hearing, Plaintiff further explained Olsen relied upon thousands of documents in reaching her
conclusions expressed in the Expert Report and even references some of those documents in the
Expert Report [see also Dkt. 59 (providing a complete list of the documents Olsen considered in
compiling the Expert Report)].
In determining reliability, a court “focuses on the expert’s methodology, not the
conclusions generated by it.” Orthoflex, Inc. v. ThermoTek, Inc., 986 F. Supp. 2d 776, 783
(citations and internal quotations omitted) (citing Watkins v. Telsmith, Inc., 121 F.3d 984, 989 (5th
Cir. 1997)). The U.S. Supreme Court has characterized this examination as “flexible” and has
given district courts broad discretion in tailoring their expert analysis based on the facts of the case
in question. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152 (1999) (providing that courts
should consider the factors outlined in Daubert for evaluating scientific expert opinion only
“where they are reasonable measures of the reliability of expert testimony”). The Daubert factors
ask (1) “[w]hether a ‘theory or technique . . . can be (and has been) tested’”; (2) “[w]hether it ‘has
been subjected to peer review and publication’”; (3) “[w]hether, in respect to a particular
ORDER – Page 10
technique, there is a high ‘known or potential rate of error’ and whether there are ‘standards
controlling the technique's operation’”; and (4) “[w]hether the theory or technique enjoys ‘general
acceptance’ within a ‘relevant scientific community.’” Kumho, 526 U.S. at 149-50 (quoting
Daubert, 509 U.S. at 592).4 Courts use such factors to assist in determining whether “there is
simply too great an analytical gap between the [basis for the expert opinion] and the opinion
proffered,” such that the court may consider the opinions expressed within the report unreliable.
Id. (internal quotations omitted) (quoting Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997), and
citing Johnson, 685 F.3d at 460-61). Still, “[a]s a general rule, questions relating to the bases and
sources of an expert’s opinion affect the weight to be assigned that opinion rather than its
admissibility and should be left for the jury’s consideration” where possible. Viterbo, 826 F.2d at
The U.S. Supreme Court developed the Daubert factors in a case concerning expert
scientific opinion and methodology, but expressly held that courts should approach the reliability
determination with flexibility—paying heed to particular type of expert opinion presented for
evaluation and the set of facts presented in the case as a whole. See 509 U.S. at 594-95. In the
present case, Olsen provides opinions relating to the performance and value of a contract in a
particular type of industry based on her review of contract documents, industry standards, and her
experience. United States v. Vicknair, No. CRIM.A.03-16, 2005 WL 1400443, at *5-6 (E.D. La.
June 2, 2005) (citing Guy v. Crown Equip. Corp., 394 F.3d 320, 325 (5th Cir. 2004)) (noting
“[s]ome types of expert testimony will not rely on anything like a scientific method, and so will
have to be evaluated by reference to other standard principles attendant to the particular area of
expertise” and determining expert’s consideration of applicable standards and laws in conjunction
Neither Party advocates for or against the Court’s applying the Daubert factors (or any other set of factors) in
determining whether Olsen’s opinion is reliable.
ORDER – Page 11
with the facts of the case and in light of the expert’s own experiences a reliable methodology).
Other courts evaluating expert opinions like those presented here have considered the following
(1) whether the expert identified the materials relied upon and personally examined
the file underlying the case; (2) whether the expert sufficiently explained why he
or she reached an opinion; (3) whether the expert cited other sources relied upon by
attorneys such as applicable statutes, treatises, or publications by professional
organizations; or (4) whether the expert demonstrated that his opinion is accepted
by his peers.
United States v. Gallion, 257 F.R.D. 141, 149 (E.D. Ky. 2009) (quoting McDevitt v. Guenther, 522
F. Supp. 2d 1272, 1291 (D. Haw. 2007)). The Court finds these factors useful guidelines in the
In the instant case, the Expert Report does not suffer from too great an analytical gap
between Olsen’s opinions and the bases for same to disqualify Olsen from testifying. The Expert
Report begins with reference to those industry standards Olsen believes are relevant and explains
why Olsen believes such standards bear on the present case [see Dkt. 41, Ex. A at 3-5].
Specifically, Olsen begins by explaining that steel detailers work under steel fabricators, who in
turn work under a general contractor in construction projects. She notes that, under AISC
guidelines, these entities each work with one another through documents, usually contracts,
providing crucial details for the construction work and “critical paths” each entity must follow so
that the work each entity does at each level of the process comes together cohesively to form a
finished project. Olsen further explains the general contractor usually provides all of these
documents (at least the initial workups) to the steel fabricator(s) and detailer(s) before the project
even begins, in the bidding phase. In the instant case, the Parties (and Olsen) refer to those initial
documents as “Bid Packs,” and in this case the Parties exchanged two of them, Bid Pack #1 (dated
June 19, 2014, according to an email between Switzky and Plaintiff) and Bid Pack #2 (dated
ORDER – Page 12
September 24, 2016, according to the Expert Report) [see Dkt. 41, Ex. A at 4, Ex. F]. Olsen
expresses that confusion about the Bid Packs, particularly about documents that Olsen asserts
Defendant initially omitted from Bid Pack #2 but later provided, resulted in Plaintiff’s alleged
delay in complying with Defendant’s demands [see Dkt. 41, Ex. A at 4-5]. She opines from her
review of the documents “that the work was not managed according to the AISC Certification
Program requirements” and that, accordingly, Plaintiff rendered performance as best as possible
given the confusion [see Dkt. 41, Ex. A]. Olsen then goes on to detail specific instances of what
she perceives as defective mismanagement and document control on Defendant’s part throughout
Plaintiff’s attempted performance, citing AISC standards and deposition testimony of three of
Defendant’s employees [Dkt. 41, Ex. A at 6-12].
Reviewing the Expert Report generally, the Court concludes as follows: Olsen references
specific industry standards and cites to what she considers relevant portions of the evidence and
contracts exchanged between the Parties; Olsen explains the “how and why” of her conclusions by
applying those industry standards to specific facts in the case; Olsen notes the referenced AISC
standards apply in this case and that she (and others) have applied these standards in similar cases
before; and Olsen’s publications provided alongside the Expert Report show that, in general, peers
accept her opinions about document control and/or project management in the steel detailing
industry [see generally Dkt. 58, Plaintiff’s Ex. 1 at 1-12 (Expert Report), 14-59 & 83-168
(deposition testimony, emails, and contract documents), 175-218 (Olsen’s previous publications),
61-79 & 220-279 (industry standards Olsen considers in the Expert Report)]. Compare Dixon v.
Int’l Harvester Co., 754 F.2d 573, 580 (5th Cir. 1985) (determining trial court erroneously
excluded expert testimony about a product that allegedly caused damage where the expert had
extensive experience in the field, “had in fact inspected the design” of the product, as well as “a
ORDER – Page 13
set of blueprints of the [product], and viewed photographs showing the condition of the [product]
at the time of the accident”), and Stetson Petroleum Corp. v. Trident Steel Corp., No. 4:14-CV43, 2015 WL 6745958, at *4 (E.D. Tex. Nov. 4, 2015) (finding expert sufficiently reliable where
the expert “list[ed] the documents that he reviewed in reaching his conclusion” and “relied on
recognized publications and texts when creating his opinion”), with Lewis v. Par. Of Terrebonne,
894 F.2d at 146 (rejecting expert testimony where based upon “two meager record citations”), and
Hilt, 170 F.R.D. at 185 (rejecting expert opinion where the report said only that the expert’s
opinions “[we]re based upon the education, training, and experience of [the expert] and her reliance
on two depositions”).
Defendant also asserts Olsen recites erroneous facts in the Expert Report regarding
documents she believes were missing from the Bid Packs and the proper method for remedying
the alleged untimely delivery of Bid Pack #2. Defendant claims that an email from Switzky to
Plaintiff shows Olsen erroneously determined Plaintiff did not receive the entirety of Bid Pack #1
in a timely manner and that Plaintiff’s own representations contrary to Olsen’s conclusion
regarding the appropriate fix for the ongoing issues between the Parties demonstrate that at least
part of Olsen’s Expert Report contains analytical gaps [Dkt. 41 at 7-8]. The Court finds neither
Olsen opines in the Expert Report that certain documents, namely “RFI-001 dated 6-122014, ASI-001 dated 6-11-2014, RFI-002 dated 6-10-2014, and ASI-002 dated 6-12-2014” may
have been omitted from Bid Pack #1 when Plaintiff received it. Specifically, Olsen notes “[i]t is
not apparent that these documents were provided to the steel detailer [Plaintiff] at the time of bid
or award as they are not listed at the steel detailers [sic] quote” [Dkt. 41, Ex. A at 4]. Defendant
asserts an email from Switzky to Plaintiff date July 2, 2014, noting Switzky “[was] attaching the
ORDER – Page 14
contract documents and HME scope for your use” and referencing “New Laramie High School—
Core Trade Bid Pac 1 (bids 6-19-14).zip (656.5 MB)” [Dkt. 41, Ex. F] shows Olsen’s factual
statement regarding such documents is erroneous [see Dkt. 41 at 7]. The email, however,
references Bid Pack #1 only generally—it does not necessarily rebut Olsen’s statement that certain
documents within the Bid Pack were omitted. Likewise, Olsen claims in the Expert Report that
“[the] release of delayed contract documents (ASI #3, BP2) is best remedied by starting over[,]”
while Plaintiff indicated in an email to Canda dated October 6, 2014 that, despite the purported
late receipt of Bid Pack #2, Plaintiff could deliver under the contract with “137.5 man-hours” for
Bid Pack #2 and “160 man-hours” for “Alt #6” [compare Dkt. 41, Ex. A at 5, with Dkt. 41, Ex. G
In either instance Defendant highlights, competing inferences arise regarding the
underlying facts of this case and how best to remedy the purported contract issues; resolving such
discrepancies is not the province of the Court, particularly at this stage of the proceedings. Cf.
Pipitone, 288 F.3d at 250 (noting the trial court’s “gatekeeper” function “is not intended to serve
as a replacement for the adversary system” and that “[v]igorous cross examination, presentation
of contrary evidence, and careful instruction on the burden of proof are the traditional and
appropriate means of attacking shaky but admissible evidence” (emphasis added)). Defendant
may test Olsen’s conclusions and factual determinations through “traditional and appropriate
means”—the Court will not entertain such argument at this juncture. Pipitone, 288 F.3d at 250;
cf. United States v. Wohlman, 651 F.3d 878, 885-86 (8th Cir. 2011) (characterizing issues with
expert testimony related to the expert’s reliance on another witness’s “sometimes contradictory”
statements as part of the “weight to be accorded” the expert’s opinion).
Finally, Defendant vehemently opposes Olsen’s reliance on the deposition testimony of
Canda, Switzky, and Roenne in reaching conclusions regarding Defendant’s overall document
ORDER – Page 15
control system and its use in managing the contracts in this case. Defendant challenges these
conclusions because Plaintiff noticed none of these depositions as Rule 30(b)(6)—corporate
representative—depositions and because Olsen relies upon these deponents individual and
collective failures to reference the AISC standards during the depositions notwithstanding that
Plaintiff never asked about such standards [Dkt. 41 at 8-9]. Defendant cites no authority for its
proposition that an expert may not rely upon a fact witness other than a 30(b)(6) corporate
representative in reaching conclusions about a corporate entity’s processes or their application in
a particular set of circumstances. Further, authority interpreting the deposition rules counsels
against restricting a litigant’s case against a corporate entity to solely the representations made
during a duly-noticed 30(b)(6) deposition. See, e.g., United States v. One Parcel of Real Estate at
5860 N. Bay Rd., Miami Beach, 121 F.R.D. 439, 440 (S.D. Fla. 1988) (“In 1970, Rule 30 was
broadened by placing the duty to designate the person with the most knowledge of the subject area
to be examined on the corporation; however, ‘the new procedure does not preclude taking a
deposition by any other procedure authorized by the rules. Thus a party who wishes the deposition
of a specific officer or agent of a corporation may still obtain it and is not required to allow the
corporation to decide for itself whose testimony the other party may have.’”); Blue Spike, LLC v.
Audible Magic Corp., No. 6:15-CV-584, 2016 WL 3653516, at *5 (E.D. Tex. May 31, 2016)
(finding a 30(b)(6) deposition unnecessary to bind the corporate entity to statements a
representative made at deposition noticed under 30(b)(1) where representative’s position within
the corporation showed the representative could make authoritative representations about the
corporation and its position). Defendant relies wholly on the fact that the Plaintiff failed to notice
any of Canda, Switzky, and Roenne for 30(b)(6) deposition and makes no argument regarding
whether these persons may or may not make representations on behalf of the corporation (or about
ORDER – Page 16
the corporation) generally or in the circumstances presented here. Further, Olsen points to
representations by Canda, Switzky, and Roenne showing they lack familiarity with “job
descriptions,” document control,” “sub-contracting[,]” and “company process” that, in Olsen’s
experience, persons in the positions Canda, Switzky, and Roenne occupy should know about [e.g.,
Dkt. 41, Ex. A at 7]. Olsen’s Expert Report connects her conclusion about these representatives
and their individual and collective knowledge concerning document control generally and in this
case to their deposition testimony. Because litigants in certain circumstances may rely upon non30(b)(6) deposition testimony in evaluating the actions (or failures) a corporate entity and because
Defendant may highlight during cross-examination that Olsen relies upon the deponents’ failures
to discuss topics at deposition no one apparently asked them about, the Court finds Defendant’s
argument unpersuasive at this juncture. See E.E.O.C. v. Caterpillar, Inc., No. 03 C 5637, 2004
WL 20920003, at *9 (N.D. Ill. Sept. 14, 2004) (finding plaintiffs’ complaint that defendant
improperly relied upon plaintiffs’ failure to address a topic at deposition “the proper subject of
cross-examination and impeachment”); see also Eldridge v. Gordon Bros. Grp., LLC, 316 F.R.D.
12, 42 (D. Mass. 2016), aff’d in part, vacated in part sub nom. Eldridge v. Gordon Bros. Grp.,
L.L.C., No. 12-2311, 2017 WL 2981797 (1st Cir. July 13, 2017) (“[W]hether the lack of supporting
documents sufficiently undermines [an expert’s] testimony to render it incredible is a question for
a finder of fact.”).
In sum, Defendant’s Motion to Strike the Expert Report [Dkt. 41] should be denied, and
Olsen’s Expert Report should remain as part of the record. The Court will permit Olsen to testify
to Plaintiff’s performance under the contracts at issue and as to the value of that performance. The
Court denies Defendant’s Motion to Strike Expert Report [Dkt. 41] without prejudice.
ORDER – Page 17
Olsen’s Rebuttal Report
Defendant also moves to strike Olsen’s Rebuttal Report [Dkt. 48, Ex. A] through its Motion
to Strike the Rebuttal Report [Dkt. 48], arguing that Olsen’s Rebuttal Report is conclusory and
fails to connect her conclusions to any evidence in support of her opinions, that Olsen fails to
employ any methodology in reaching her conclusions, and that Olsen is not qualified to offer
certain of the opinions offered in the Rebuttal Report, namely regarding the alleged engineering
deficiencies in Plaintiff’s product to which two of Defendant’s experts (Dan Canda and Brian
Aubert) intend to testify [Dkt. 48 at 1-2]. Specifically, Defendant asserts it proffered the following
expert reports, and that Olsen attempts improperly to rebut each one: (1) Lyle Charles (a Project
Management Professional), (2) Don Grigg (a non-retained expert on Tekla engineering software),
(3) Bobbi Fletchall (Defendant’s Detailing Manager), (4) Dan Canda and Brian Aubert (each
Professional Engineers who work for Defendant), and (5) Kevin Rake (testifying about damages)
and John Haas (testifying about scheduling delays).
Initially the Court notes its findings supra regarding Olsen’s methodology employed in her
Expert Report apply equally to Defendant’s arguments about the Rebuttal Report. As with the
Expert Report, Olsen relies in constructing her Rebuttal Report upon her review of the documents
in this case, as well as Defendant’s expert witness disclosures [see Dkt. 48, Ex. A at 16 (listing
documents on which Olsen relied)]. Further, Olsen explains for each expert she attempts to rebut
why she reaches an opposing conclusion [see generally Dkt. 48, Ex. A at 3-14]. Whether
Defendant disagrees with the conclusions Olsen draws from the evidence has no bearing on the
methodology Olsen employed in constructing the Rebuttal Report. The Court’s “gatekeeper” role
requires the Court to scrutinize the sources on which an expert relies and the methods the expert
uses to draw conclusions from those sources—this does not give the Court authority to question
ORDER – Page 18
the premises on which the expert bases her conclusions, so long as the expert draws those premises
from reliable sources.
Litigants bear the burden of showing the factfinder an expert has
misinterpreted (or warped) a factual premise and has reached thereby an untenable or unmerited
conclusion. Moreover, to the extent Defendant argues the Rule 26(a)(2)(B) standard governs
Olsen’s Rebuttal Report and that it fails to meet that standard [see Dkt. 48 at 5-7], Defendant errs.
The Court found supra that Olsen’s Expert Report complies with Rule 26(a)(2)(B), and where an
expert serves both to support a litigant’s case-in-chief as well as in a rebuttal capacity, courts must
read the expert’s rebuttal expert report alongside and in light of the initial expert report. Sills v.
Enprotech Corp., No. 3:05CV32-B-A, 2006 WL 5157684, at *1 (N.D. Miss. June 27, 2006).
Accordingly, the Court turns to consider Defendant’s objections regarding Olsen’s
rebuttals to each of Defendant’s experts.
Defendant proffers retained expert Lyle Charles’s testimony in support of its case-in-chief.
Defendant asserts Charles explains the AISC protocols and thoroughly explains how Plaintiff
failed to meet Defendant’s requirements under the contracts through eleven distinct examples and
explanations [Dkt. 55, Ex. A]. Defendant argues against Olsen’s Rebuttal Report, which addresses
each of the eleven examples with what Defendant argues are conclusory and/or speculative factual
allegations, rather than supported expert opinion [Dkt. 48 at 8-14]. In each instance, Defendant
essentially objects that Olsen considered certain evidence or standards Defendant considers
irrelevant or inapplicable or else that Olsen failed to consider other evidence or standards
Defendant consider highly relevant or singularly applicable. Indeed, Olsen’s rebuttal to Charles’s
report often cites and discusses different documents than does Charles’s and provides contrary
interpretations of applicable industry standards [compare Dkt. 48, Ex. A at 3-8, with Dkt. 55]. In
ORDER – Page 19
so doing, Olsen’s Rebuttal Report explains why she believes Charles’s conclusions are erroneous
and makes reference either to the facts of the case (as she understands them from her review of the
documents provided to her) or to industry standards and her own experiences [Dkt. 48, Ex. A at 38]. This type of dispute “goes to the weight of the evidence” as interpreted by the opposing experts,
“not admissibility.” See, e.g., Barry v. Medtronic, Inc., No. 1:14-CV-104, 2016 WL 7665773, at
*4 (E.D. Tex. July 19, 2016) (“Medtronic’s dispute on this point is merely that Dr. Yassir did not
rely on the facts that Medtronic believes are the most important. Failure to consider medical reports
or speak to Dr. Barry goes to the weight of the evidence, not admissibility.”). Accordingly, the
Court finds Olsen’s rebuttal to Charles’s opinion admissible.5
Defendant proffers non-retained expert Don Grigg’s testimony on Tekla engineering
software licensing in support of its case-in-chief. Grigg apparently seeks to testify to software
licensing because Defendant claims Plaintiff sub-contracted his work under the contracts here in
issue impermissibly to a Filipino firm employing pirated Tekla software. Defendant argues
Olsen’s Rebuttal Report, which baldly states “[s]oftware licensing is not relevant to the issues
being discussed in this case[,]” attempts to determine relevancy, a question for the Court [Dkt. 48
The Court notes the Parties also disagree concerning the importance of Bid Pack #2 to the outcome of this case.
Plaintiff contends (as does Olsen) that Bid Pack #2 significantly impacts the case because its late arrival created much
of the confusion to which Plaintiff seeks to attribute any alleged delays or errors on his part in performing the
underlying contracts [e.g., Dkt. 51 at 8]. Defendant claims to the contrary that “Plaintiff’s focus on Bid Pack 2 in
Plaintiff’s Response and Olsen’s initial and rebuttal reports is of no moment because [Plaintiff] was never instructed
to start work on Bid Pack 2; and indeed was specifically instructed to not start work on Bid Pack 2” [e.g., Dkt. 52 at
3]. In other words, the Parties disagree about whether Bid Pack #2 had any impact on Plaintiff’s contractual
obligations. Accordingly, Defendant’s argument that Bid Pack #2 is irrelevant must fail, as the question of whether
Plaintiff substantially performed under the contract necessarily turns on the extent of Plaintiff’s contractual
obligations, including whether Bid Pack #2 changed those obligations.
ORDER – Page 20
The Court agrees with Defendant. Experts may not offer testimony that purports to
determine what law governs a case or what the applicable law means—only the Court has authority
to make such determinations. Goodman v. Harris Cty., 571 F.3d 388, 399 (5th Cir. 2009) (“An
expert may never render conclusions of law.”). The Fifth Circuit has held an expert’s “opinion on
the legal conclusions to be drawn from the evidence both invades the court’s province and is
irrelevant.” Owen v. Kerr-McGee Corp., 698 F.2d 236, 240 (5th Cir. 1983); see also Askanase v.
Fatjo, 130 F.3d 657,673 (5th Cir. 1997) (“There is one, but only one, legal answer for every
cognizable dispute. There being only one applicable legal rule for each dispute or issue, it requires
only one spokes[person] of the law, who of course is the judge.”). Olsen’s statement—the only
statement she makes regarding Grigg’s opinion—reads “[s]oftware licensing is not relevant to the
issues being discussed in this case” [Dkt. 48, Ex. A at 9]. Olsen steps out of the role of an expert
with this opinion and improperly into that of the Court. Accordingly, the Court strikes Olsen’s
rebuttal to Grigg’s opinion.
Defendant proffers non-retained expert Bobbi Fletchall (Defendant’s Detailing Manager)
to opine that the most recent model of the Laramie High School project provided by Plaintiff to
Defendant contains so many errors that the model provides Defendant no value [see Dkt. 55, Ex.
C]. Defendant argues that Fletchall cites specific criteria in support of her conclusion, while
Olsen’s Rebuttal Report fails to provide any basis for rebutting Fletchall’s opinions [Dkt. 48 at
15]. To the contrary, Olsen’s Rebuttal Report articulates various reasons Olsen disputes Fletchall’s
analysis. In particular, Olsen opines the intervening submission of Bid Pack #2 renders much of
Fletchall’s analysis outdated, as it is based on Plaintiff’s failure to meet deadlines and requirements
included in Bid Pack #1 [see Dkt. 48, Ex. A at 8-9 (focusing on “the revised drawings contained
ORDER – Page 21
in Bid Pack 2” and Fletchall’s failure to reference those revisions)]. Again, disputes between
experts regarding which documents, facts, and standards should control the outcome of the overall
case are properly resolved at later stages of litigation and do not bear on admissibility of an expert’s
testimony. See, e.g., Barry, 2016 WL 7665773, at *4. The Court accordingly finds Olsen’s
rebuttal to Fletchall’s opinion admissible.
Canda and Aubert Rebuttal
Defendant proffers the testimony of non-retained experts Dan Canda and Brian Aubert
(Professional Engineers employed by Defendant) in support of its case-in-chief. Canda provides
in a sixty-six page report his “engineering analysis of a selection of connections which were found
to be deficient as released to fabrication by Glen Ihde and Company” alongside detailed depictions
of the steel fabrications at issue [Dkt. 55, Exh. D]. Aubert provides an opinion based upon Canda’s
report and Aubert’s own review of Plaintiff’s work that Plaintiff’s “detailing contained significant
quantities of negligent errors” that Defendant could not accept [Dkt. 55, Exh. E]. Defendant argues
Olsen is not qualified to rebut Canda’s and Aubert’s opinions as she is not an engineer [Dkt. 48 at
15]. Plaintiff argues in response that Olsen “is not providing engineering opinions” and instead
opines “that (1) [Plaintiff] was not charged with providing any connection design calculations . . .
and (2) the engineering data referenced is not relevant to an analysis of the working construction
documents” [Dkt. 51 at 10].
As noted supra at note 5, Olsen bases many of her opinions regarding Plaintiff’s
performance under the contracts on Bid Pack #2’s existence and the time at which it entered the
pool of contractual documents here in issue [see, e.g., Dkt. 48, Ex. A at 10-11]. Her Rebuttal
Report attempts to rebut Canda’s and Aubert’s opinions mainly on the basis that Bid Pack #2
changed the expectations Defendant had for Plaintiff and, as such, invalidated the data on which
ORDER – Page 22
Canda and Aubert rely in characterizing Plaintiff’s performance as deficient [Dkt. 48, Ex. A at 910]. Olsen also argues Plaintiff had no obligation to provide “connection design calculations”
under the contract—as read in context, in light of her experience, and under the relevant industry
standards—such that each of Canda’s and Aubert’s opinions about Plaintiff’s failure to provide
sufficient “connections” work need not be afforded much, if any consideration [Dkt. 48, Ex. A at
9-10]. As to these opinions, the Court finds Olsen’s rebuttal admissible.
Olsen also opines more generically that she “disagree[s] that the steel detailing work
performed by [Plaintiff] was in any way deficient regarding connections” [Dkt. 48, Ex. A at 9-10].
Plaintiff argues this conclusion relates to Olsen’s opinions regarding the timing of Bid Pack #2
and Defendant’s purported failure to charge Plaintiff with the task of completing any connections
work [Dkt. 51 at 10]. To the extent Olsen attempts to opine as to Canda’s and/or Aubert’s
engineering opinions, however, the Court finds Olsen unqualified. The record currently before the
Court demonstrates that Olsen has years of experience in and has written extensively about the
document control and project management aspects of steel detailing. It does not reveal any level
of expertise in or experience with the engineering aspects of steel detailing. Accordingly, the
Court finds that Olsen’s Rebuttal Report is admissible as to Canda’s and Aubert’s opinions, but
only to the extent Olsen opines that Bid Pack #2 changed the expectations Defendant had for
Plaintiff and, as such, invalidated the data on which Canda and Aubert rely in characterizing
Plaintiff’s performance as deficient.
Rake and Haas Rebuttal
Defendant lastly proffers the expert testimony of Kevin Rake (Defendant’s CFO) and John
Haas (Defendant’s CEO) in support of its case-in-chief. Rake offers testimony about Plaintiff’s
claimed damages while Haas offers testimony about the ramifications of Plaintiff’s alleged
ORDER – Page 23
detailing errors on Defendant’s business. With regard to Olsen’s rebuttal to Rake’s opinion,
Defendant argues that “Olsen is not qualified to opine regarding [Defendant’s] alleged damages”
but provides no explanation for this assertion [Dkt. 48 at 15]. With regard to Olsen’s rebuttal to
Haas’s opinion, Defendant reiterates its argument that Olsen’s rebuttal speculates and concludes
without any basis or method [Dkt. 48 at 16].
Olsen’s rebuttal to Rake’s opinions (regarding damages) relies upon her determination that
Defendant’s own mismanagement of the contract led to Defendant’s losses, if any, rather than
Plaintiff’s allegedly deficient performance [Dkt. 48, Exh. A at 11]. Olsen’s rebuttal to Haas’s
opinions (regarding the ramifications of Plaintiff’s alleged detailing errors) also relies upon her
determination that Defendant’s own mismanagement of the contract led to Defendant’s scheduling
adjustments, rather than Plaintiff’s allegedly deficient performance [Dkt. 48, Exh. A at 11]. Olsen
clearly does not contest Rake’s methods or calculations but instead attacks Rake’s underlying
premise—i.e., that Plaintiff’s actions resulted in any damages at all, much less those Rake
Like the Court has indicated supra, Olsen provides sufficient support for her
conclusions that Defendant’s actions, rather than Plaintiff’s alleged failures, resulted in the instant
dispute and related issues. Accordingly, the Court finds Olsen’s rebuttal of Rake’s and Haas’s
Though the Court takes no position on whether Olsen’s opinions ultimately will persuade
the factfinder that Plaintiff should prevail, the Court need only ask at this stage (1) whether Olsen’s
Reports provide Defendant enough information to understand and rebut Olsen’s opinions and
(2) whether Olsen provides sufficiently reliable and relevant information based upon her
qualifications. Excepting Olsen’s conclusions about the relevance of Grigg’s testimony or about
ORDER – Page 24
Canda’s and Aubert’s engineering opinions (to the extent she reaches any), the Court finds Olsen’s
Expert Report and her Rebuttal Report admissible.
For the foregoing reasons, the Court finds Defendant’s Motion to Strike and Exclude
Expert Testimony of Kerri Olsen [Dkt. 41] should be denied and that Defendant’s Motion to Strike
and Exclude Rebuttal Testimony of Kerri Olsen [Dkt. 48] should be granted in part and denied in
part. Olsen’s Rebuttal Report is stricken to the extent it concludes the testimony of Don Grigg is
irrelevant and to the extent it purports to rebut the underlying engineering analysis of Dan Canda
and/or Brian Aubert. In all other respects, the Court finds Olsen’s Rebuttal Report admissible.
It is therefore ORDERED that Defendant’s Motion to Strike and Exclude Expert
Testimony of Kerri Olsen [Dkt. 41] is hereby DENIED, and that Defendant’s Motion to Strike
and Exclude Rebuttal Testimony of Kerri Olsen [Dkt. 48] is hereby GRANTED IN PART AND
DENIED IN PART.
IT IS SO ORDERED.
SIGNED this 1st day of August, 2017.
Christine A. Nowak
UNITED STATES MAGISTRATE JUDGE
ORDER – Page 25
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