Polaris Engineering, Inc. v. Texas International Terminals, Ltd.
Filing
451
MEMORANDUM OPINION AND ORDER grants in part and denies in part 266 MOTION to Strike , Exclude, Or Limit the Opinion Testimony of Designated Expert Timothy D. Rooney, grants 269 MOTION to Strike , Exclude, Or Limit the Opinion Testimony of Designated Expert Timothy R. Overman, P.E., CMA (Signed by Judge Jeffrey V Brown) Parties notified.(GeorgeCardenas, 3)
Case 3:21-cv-00094 Document 451 Filed on 06/26/23 in TXSD Page 1 of 7
United States District Court
Southern District of Texas
ENTERED
In the United States District Court
for the Southern District of Texas
GALVESTON DIVISION
═══════════
No. 3:21-cv-94
═══════════
POLARIS ENGINEERING, INC.,
PLAINTIFF,
v.
TEXAS INTERNATIONAL TERMINALS, LTD., ET AL.,
DEFENDANTS,
AND
TEXAS INTERNATIONAL TERMINALS, LTD.,
COUNTER-PLAINTIFF,
V.
POLARIS ENGINEERING, INC.,
COUNTER-DEFENDANT,
AND
TEXAS INTERNATIONAL TERMINALS, LTD.,
THIRD-PARTY PLAINTIFF,
v.
WESTCHESTER FIRE INSURANCE COMPANY, ET AL.,
THIRD-PARTY DEFENDANTS.
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June 26, 2023
Nathan Ochsner, Clerk
Case 3:21-cv-00094 Document 451 Filed on 06/26/23 in TXSD Page 2 of 7
══════════════════════════════════════════
MEMORANDUM OPINION AND ORDER
══════════════════════════════════════════
JEFFREY VINCENT BROWN, UNITED STATES DISTRICT JUDGE:
The defendant has moved to strike expert testimony provided by the
plaintiff. Dkts. 266, 269. The court grants in part and denies in part Dkt. 266
and grants Dkt. 269.
Background
The plaintiff, Polaris Engineering, seeks over $18 million in COVID-19
related change-order requests that it submitted to the defendant, Texas
International Terminals (“TXIT”), after filing this lawsuit. Dkt. 266 at 1. To
support its claimed damages for change-order requests, Polaris designated
two experts, Timothy R. Overman and Timothy D. Rooney, to testify about
the impact COVID-19 had on Polaris’s project schedule and damages related
to that delay. Id. at 1; Dkt. 269 at 1. TXIT now moves to strike Overman’s and
Rooney’s expert testimony as it relates to COVID-19 and the change orders,
arguing they are based on unreliable data and no methodology. Dkts. 266 at
1; 269 at 2.
Legal Standard
To ensure expert testimony is reliable and relevant, courts act as “gatekeepers.” Pipiton v. Biomatrix, Inc., 288 F.3d 239, 244 (5th Cir. 2002). For
an expert’s testimony to be admissible, the proponent, Polaris, bears the
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burden of proving (a) the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact trier of fact understand the evidence or
a fact in question, “(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; Mathis v. Exxon Corp., 302 F.3d 448, 459–60 (5th
Cir. 2002).
Analysis
A. Overman
TXIT argues that Overman does not rely on sufficient facts or data and
does not use a methodology to reach his conclusion that COVID-19 caused
delays to or impacted Polaris’s work on the project schedule. Dkt. 269 at 3.
In response, Polaris argues that Overman provided an “extensive overview”
of how COVID-19 delayed the construction. Dkt. 300 at 6. The court grants
TXIT’s motion to strike Overman’s expert testimony.
In analyzing other delays to the project, Overman uses various
methods, like Critical Path Method delay-analysis techniques, and divided
delays into sequential review periods. Dkt. 270-1 ¶¶ 66, 68. In contrast,
Overman “did not model COVID-19 schedule impacts in its delay analysis.”
Dkt. 270-1 ¶ 197. Instead, Overman simply states that construction was
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disrupted by labor absenteeism and COVID-19 restrictions and procedures.
Id. To support his conclusion, Overman does no more than cite the average
number of people who missed work during certain periods, id. at 58 n. 160,
and list Polaris’s COVID-19 safety protocols (like social distancing and
sanitizing), id. ¶ 195–196. He does not use any method or attempt to explain
how or to what extent these protocols and labor absenteeism caused any
delay at all, but simply concludes that COVID-19 “likely caused intermittent
delays to Polaris’s work.” Id. ¶ 197 Accordingly, Polaris has not met its
burden in proving that Overman’s COVID-19 related opinion is the product
of a reliable method.
B. Rooney
TXIT argues Rooney relies on insufficient facts and applies no
methodology in reaching the conclusion that COVID-19 caused delays in the
project and that the requests are valid. Dkt. 266 at 4. In response, Polaris
argues Rooney concluded Polaris’s methodology in assessing COVID-19’s
impact on productivity and related costs was reasonable. Dkt. 300 at 6. The
court grants in part and denies in part TXIT’s motion to strike Rooney’s
testimony.
Rooney concludes—with support—that Polaris’s methodology was “a
reasonable method to allocate the costs” of a 60-day COVID-19 delay, but
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does not appropriately connect that 60-day delay with COVID-19. Dkt. 2671 ¶¶ 214–215. As Rooney uses a method and appropriate underlying facts to
conclude Polaris’s methodology of damage calculations is reasonable in the
event COVID-19 caused the delays, those portions of his opinion are
admissible. Id. ¶¶ 211–214, 216, 218–221, 233, 225–228, 230; Dkt. 267-2
¶¶ 221–224, 226, 228–231, 233, 235–238, 240.
But Rooney does not use methodology or provide facts to support that
COVID-19 caused a 20 percent or 60-day delay. Indeed, Rooney simply
concludes that COVID-19 “would have had a significant schedule impact” but
admits that he has “not identified documentation to support this delay.” Dkt.
267-1 ¶¶ 214, 215 (emphasis added). Further, in his supplemental report,
Rooney refers to Overman’s report for a delay assessment rather than
conduct analysis himself, stating again that COVID-19 “would have had a
significant schedule impact, however, [he] has not assessed the claimed
delay.” Dkt. 267-2 ¶ 225 (emphasis added).
Rooney’s ultimate conclusion that the COVID-19 change orders are
valid is unsupported because it necessarily relies on a conclusion that the
claimed delay was valid—and Rooney does not attempt to make such a
conclusion, much less support it with facts and methodology. Dkts. 267-1 ¶
217, 224, 231; 267-2 ¶¶ 227, 234, 241. Accordingly, Rooney’s opinion that the
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change orders are valid is stricken. Dkts. 267-1 ¶¶ 217, 224, 231; 267-2 ¶¶
227, 234, 241. To the extent Rooney makes assertions that the delay was
caused by COVID-19, that portion of the opinion is also barred for lack of
underlying facts and methodology. Dkts. 267-1 ¶¶ 215, 222, 229; 267-2 ¶¶
225, 232, 239.
C. Premature Motions
Polaris argues TXIT’s motions to strike are premature because as of
filing, neither expert had been deposed and discovery was still ongoing. Dkt.
300 at 3. But Overman and Rooney evaluated COVID-19 related changeorder requests prepared by Polaris regarding Polaris delays, meaning any
relevant information was in Polaris’s possession without the need for
discovery or depositions. Dkt. 313 at 5. Thus, Polaris’s argument that this
decision is premature without more discovery and Overman’s and Rooney’s
depositions is unconvincing. 1
The case law Polaris cites to support this argument is also unconvincing.
Dkt. 300 at 3. All of the cited cases were written by Judge Fitzwater, who prefers
that parties wait to file motions like this one, but specifically states that this is his
“preference” and that he does not suggest that such a motion cannot be filed
earlier. Galvez v. KLLM Transp. Services LLC, No. 3:20-CV-0238-D, 2021 WL
1966814, at *1-2 (N.D. Tex. May 17, 2021); Klein v. Fed. Ins. Co., 2014 WL
6885973, at *1 (N.D. Tex. Dec. 8, 2014); Stephens v. FAF, Inc., No. PE:18-CV-6DC-DF, 2018 WL 7070836, at *1 (W.D. Tex. Nov. 20, 2018).
1
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*
*
*
The court grants in part and denies in part TXIT’s motion to strike the
COVID-19 related portions of Rooney’s report, Dkt. 266, and grants the
motion to strike the COVID-19 related portions of Overman’s report, Dkt.
269.
Signed on Galveston Island this 26th day of June, 2023.
___________________________
JEFFREY VINCENT BROWN
UNITED STATES DISTRICT JUDGE
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