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Judds Brothers Construction Co. v. Mersino Dewatering, Inc.

United States District Court, D. Nebraska

April 20, 2017

JUDDS BROTHERS CONSTRUCTION CO., a Nebraska Corporation; Plaintiff,
v.
MERSINO DEWATERING, INC., a Michigan Corporation; Defendant.

          MEMORANDUM AND ORDER

          Laurie Smith Camp Chief United States District Judge

         This matter is before the Court on the Motion to Disqualify Plaintiff's Proposed Expert Witness Dave Gamerl, ECF No. 54, filed by Defendant Mersino Dewatering, Inc. (“Mersino”). For the reasons stated below, the motion will be granted.

         BACKGROUND

         The City of Council Bluffs, Iowa, hired Plaintiff Judds Brothers Construction Co. (“Judds Brothers”) as general contractor on a sewer relocation project. ECF No. 55, Page ID 285. The project required Judds Brothers to dig trenches in order to place new sewer lines. Id. Judds Brothers subcontracted with Mersino to dewater the site of the trenches, prior to digging. Id.

         Dewatering refers to various methods of temporarily lowering an area's groundwater table through the installation of pumps. Id. Mersino initially attempted to dewater the site by drilling wells ranging in depth from 45 to 55 feet. ECF No. 64, Page ID 972. When the wells did not dewater the site to Judds Brothers' satisfaction, Mersino installed a well-point system. Id. When the well-point system resulted in similarly unsatisfactory dewatering, Judds Brothers retained Griffin Dewatering (“Griffin”) to dewater the site. Id., Page ID 973. Griffin drilled wells at depths ranging from 70 to 84 feet, which ultimately dewatered the site to Judds Brothers' satisfaction. Id.

         Judds Brothers brought suit against Mersino in the District Court of Douglas County, Nebraska, on November 24, 2015. ECF No. 1. Mersino removed the case to this Court on January 4, 2016. Id. In its complaint, Judds Brothers asserted claims for breach of contract (“Claim I”), negligence (“Claim II”), breaches of implied and express warranties of fitness for a particular purpose (“Claims III & IV”), and unjust enrichment (“Claim V”). Id., Page ID 5-14. Judds Brothers alleged that Mersino should have been aware-via readily-available information-that drilling deeper wells, such as those ultimately dug by Griffin, was a viable option for dewatering the site, and that installing a well-point system was unlikely to succeed. In its answer, ECF No. 7, Mersino asserted counter-claims against Judds Brothers for breach of contract (“Counter-claim I”) and quantum meruit (“Counter-claim II”). Id., Page ID 38-39.

         In preparation for trial, Judds Brothers disclosed to Mersino its intention to proffer David Gamerl as an expert witness to testify to the “standard of care” for dewatering companies operating in Council Bluffs and to whether Mersino met such a standard in the present case. Gamerl works as a “team coordinator-branch manager” at Griffin, the third-party company Judds Brothers hired to replace Mersino. Gamerl Dep. 10:12-15, ECF No. 56-4, Page ID 323. Mersino moved to exclude Gamerl's testimony as an expert, arguing he lacks sufficient qualifications as an expert and that his testimony did not meet the standard set forth under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). ECF No. 55. The Court held an evidentiary hearing on the motion on April 13, 2017.

         STANDARD OF REVIEW

         Federal Rule of Evidence 702 governs the admissibility of expert testimony. The rule states:

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 ...

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