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United States v. Archer Western Construction, LLC

United States District Court, D. Nebraska

September 23, 2019



          Robert F. Rossiter, Jr. United States District Judge.

         This matter is before the Court on plaintiff Seedorff Masonry, Inc.’s (“Seedorff”)[1]Motion to Exclude (Filing No. 54) the testimony of defendants Archer Western Construction, LLC (“Archer”) and Travelers Casualty and Surety Company of America’s (“Travelers” and collectively, “defendants”) expert Randy A. Rapin (“Rapin”). For the reasons stated below, that motion is denied.

         I. BACKGROUND[2]

         On September 3, 2014, Archer entered into a general contract with the United States Department of Veteran Affairs (“VA”) to construct the VA’s new national cemetery in Omaha, Nebraska (the “project”). Archer subcontracted with Seedorff to complete the project’s masonry work. To do that, Seedorff obtained, supplied, and installed limestone for the project.

         All did not go well. Beginning in 2016 and continuing through 2017, Archer notified Seedorff the limestone Seedorff supplied did not comply with the project’s specifications. The VA rejected the limestone. Although Seedorff maintained the limestone met the project’s requirements, Archer withheld some payments to Seedorff.

         After exhaustive discussion between Seedorff, Archer, and the VA, the VA relented and issued a formal letter accepting the limestone “as is” on December 7, 2017. Seedorff sued (Filing No. 1) the defendants on January 22, 2018, alleging Archer owes Seedorff $1, 368, 474 for its work on the project.[3]

         Archer filed a counterclaim (Filing No. 15), seeking at least $760, 000 in damages for costs allegedly caused by Seedorff’s delays and travel expenses Archer incurred negotiating with the VA about the limestone on Seedorff’s behalf. To support their position, the defendants retained Rapin as an expert to determine whether Seedorff delayed the project. Rapin issued a report (Filing No. 55-1), which describes Rapin as a senior consultant at J.S. Held, LLC, a construction-services and consulting company. Rapin claims “specialized education and experience in the areas of construction cost and cost analysis, project scheduling, schedule analysis, project controls and project management.” In his report, Rapin opined, among other things, Seedorff delayed the project and required Archer to expend additional resources.

         On March 18, 2019, the defendants served Seedorff their expert designation of Rapin with his report. The Amended Final Progression Order (Filing No. 46) set the deadline to file motions to exclude expert testimony as July 17, 2019, but the Court extended (Filing No. 50) that deadline to August 23, 2019. With a bench trial scheduled for October 15, 2019, Seedorff now moves to exclude Rapin’s testimony arguing Rapin’s report does not meet the requirements of either Federal Rule of Evidence 702 or Federal Rule of Civil Procedure 26(a)(2)(B).


         A. Rule 702

         Rule 702 “is one of admissibility rather than exclusion.” Lauzon v. Senco Prods., Inc., 270 F.3d 681, 686 (8th Cir. 2001) (quoting Arcoren v. United States, 929 F.2d 1235, 1239 (8th Cir. 1991)). A qualified expert’s opinion is admissible under Rule 702 if (1) it is “based on sufficient facts or data, ” (2) it is “the product of reliable principles and methods, ” and (3) the expert “reliably applied the principles and methods.” The expert’s “scientific, technical, or specialized knowledge” must also assist the factfinder in understanding the evidence or determining a fact issue. Id. Here, Seedorff challenges both the facts and methodology underlying Rapin’s opinion.

         In considering the underlying facts for Rapin’s opinion, the Court notes “[g]enerally, ‘the factual basis . . . goes to the credibility of the testimony, not the admissibility, and it is up to the opposing party to examine the factual basis for the opinion in cross-examination.’” David E. Watson, P.C. v. United States, 668 F.3d 1008, 1014 (8th Cir. 2012) (quoting Nebraska Plastics, Inc. v. Holland Colors Am. Inc., 408 F.3d 410, 416 (8th Cir. 2005)). The Court must exclude an expert opinion only if it is “so fundamentally unsupported” it cannot assist the factfinder. Id. (quoting Nebraska Plastics, 408 F.3d at 416).

         Seedorff contends Rapin considered the wrong “contract completion date” and “actual completion date” for Seedorff’s work on the project, and Rapin could not “make a reliable conclusion” with those mistakes. Further, Seedorff asserts the project schedules on which Rapin relied combined work performed by Seedorff with work performed by other subcontractors into “single activity ID codes, ” making it “impossible for [Rapin] or any other expert to link any construction delays to Seedorff.”

         The defendants respond Seedorff is mistaken. They argue Seedorff has “conflate[d] the [project’s] as-planned completion date-that is, the date [Archer] was to complete the entire Project . . .-with Seedorff’s as-planned completion date-the date that Seedorff was to complete its Subcontract work.” And ...

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