United States District Court, D. Nebraska
JUDDS BROTHERS CONSTRUCTION CO., a Nebraska Corporation; Plaintiff,
MERSINO DEWATERING, INC., a Michigan Corporation; Defendant.
MEMORANDUM AND ORDER
Smith Camp Chief United States District Judge
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.
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.
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.
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
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.
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
(d) the expert has reliably applied the principles and
methods to the ...