Construction Law Insights

W.C. English, Inc. v. Rummel, 2020 U.S. Dist. LEXIS 19042, 2020 WL 534532 (W.D. Va. Feb. 3, 2020)

W.C. English, Inc. (“English”) moved to exclude CDM Smith, Inc.’s (“CDM”) expert Robert Scheller and Rummel, Klepper & Kahl, LLP’s (“RK&K”) expert William Sibert. RK&K and CDM moved to exclude testimony by three witnesses for English: (i) Gary Galloway; (ii) Jehugh Crouch; and (iii) Bernard Davis.

An expert qualified by knowledge, skill, experience, training, or education may testify as to scientific, technical, or other specialized knowledge if it will assist the trier of fact. Such testimony is only admissible if: (i) the testimony is based upon sufficient facts or data; (ii) the testimony is the product of reliable principles and methods; and (iii) the expert has reliably applied the principles and methods to the facts of the case.

The Court partially granted and partially denied English’s motion to exclude Sheller’s testimony. Sheller opinioned that: (i) CDM met its standard of care for quality control; (ii) English replaced the bridge deck despite expert findings that it was within acceptable tolerances; (iii) English continued to employ CDM as a quality control subcontractor after English learned of the alleged non-conformity with the bridge; and (iv) other factors contributed to spacing of reinforcing steel location. English’s argument to disqualify Scheller for lack of experience failed because Scheller had worked on a number of similar public projects and his experience could be helpful to the trier of fact. Because Scheller’s second opinion was based on his reading of engineering reports produced by English during its dispute with VDOT and not based on his own independent analysis and because Scheller’s proffered testimony that it would be “economic waste” to tear down the bridge was a legal conclusion, the Court excluded Scheller’s second opinion. The Court found Scheller’s third opinion to be a problematic combination of speculation and legal conclusions where the probative value of such testimony was outweighed by its likelihood to mislead the jury. Because the parties agreed that the problem in construction came from the decision to move to shorter slab runners, the Court excluded Scheller’s fourth opinion.

The Court excluded Sibert’s testimony because it largely consisted of his interpretation and recitation of specific parts of the factual records that a jury could equally evaluate.

The Court denied RK&K’s motion to preclude English from introducing evidence that RK&K’s Quality Assurance Manager directed, authorized, and approved English personnel to use 1 ¾” slab runners instead of 2 ½” slab runners that the contract required. English agreed that it was not necessary to its case to show that RK&K’s agent directed English to make the slab runner error, but such evidence would be probative to whether RK&K had knowledge that the change was being made. The Court found that the risk such evidence would muddle the issue of whether RK&K breached its contract was outweighed by the probative value of such testimony.

The Court denied the motion of RK&K and CDM to exclude testimony by three witnesses for English: (i) Gary Galloway; (ii) Jehugh Crouch; and (iii) Bernard Davis. As to Galloway, English failed to disclose him in its Initial Disclosures on May 24, 2017 or its supplemented Initial Disclosures on December 7, 2017 and first disclosed him in its December 17, 2017 motion for summary judgement, which was after the close of discovery. Although English failed to disclose Galloway initially, he was made known to RK&K and CDM at several points during the discovery process through multiple witness depositions, there was little surprise that Galloway would be called as a witness because he was English’s Construction Manager for the project, and any surprise could be cured by reopening discovery and deposing Galloway, to which English had consented. Whether Galloway’s testimony would be relevant depended upon whether he was the project manager during the operative events or if he had already retired and been replaced, but determining such an issue was dependent upon the introduction of facts during the trial such that the jury could reasonably find he was the construction manager at the operative time. If Galloway was English’s construction manager during the operative time, the Court held that Galloway could testify on the limited issue of whether he was given notice by CDM or RK&K pursuant to the Quality Assurance and Quality Control (“QA/QC”) plan.

The Court allowed the testimony of Crouch based on the representation that he heard RK&K and CDM declare that the rebar was improperly spaced. If Crouch were to testify beyond his personal knowledge, the Court indicated that RK&K and CDM could their objections at trial.

As to Davis, regardless of where he was on the night the concrete was poured, he had relevant knowledge related to the bidding and contract documents, QA/QC obligations, chain of command and responsibility, reporting that occurred on the project, inspection protocols, project document management, his communications on the project with stakeholders, and authenticity of project records. Like Crouch, the Court held that RK&K and CDM could object at trial if they believed Davis’ testimony was objectionable.

The Court denied the motions filed by RK&K and CDM to preclude English from offering evidence of its repair damages. Virginia law provides two methods for determining direct damages in a breach of construction contract case. The ‘cost rule’ is the cost of correcting the defects in the construction and making it conform to the terms of the contract. The ‘value rule’ is the difference between the value of the structure properly completed according to the contract and the value of the defective structure. However, these means of calculating damages should not override clear contractual language to the contrary. Where an indemnity clause sets the measure of damages to be recovered, that measure of damages prevails. The Court held that RK&K and CDM could argue at trial that the indemnity clause in the contracts precluded English from recovering more than the diminution in market value. Similarly, the Court rejected the arguments by RK&K and CDM that English’s reconstruction of the bridge was economic waste based on English’s earlier arguments to VDOT that the bridge did not need to be replaced because such arguments were just attempts to turn English’s mitigation efforts against English.

The Court denied the motion filed by RK&K and CDM to exclude English’s delay damages and delay analysis expert. English’s delay analysis expert separated out concurrent delays not attributable to RK&K and CDM in reaching his assessment that $1,220,000.00 of English’s $1,536,000.00 in delay damages contained in Work Order 13 (the resulting Work Order from English’s mediation with VDOT) was attributable to reconstructing the bridge. Virginia Code § 8.01-581.22 makes confidential all memoranda, work products, and other materials contained in the case files of a mediator and any communication made in or in connection with the mediation of the controversy being mediated and that such materials cannot be produced in discovery unless all parties to the mediation agree, in writing, to waive the confidentiality. English, therefore, could not alone waive the privilege and no party indicated that VDOT waived the privilege. Also, RK&K and CDM failed to challenge the asserted privilege when raised during discovery and only raised their objection after the conclusion of discovery.

PLDR Law Scott Kowalski 1 PLDR Law Mark Burgin 1

Thomas Wolf 002 Kenneth Stout 002 Jason Goldsmith 002


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