United States District Court, D. Nebraska
UNITED STATES OF AMERICA, FOR THE USE AND BENEFIT OF SEEDORFF MASONRY, INC., Plaintiff,
ARCHER WESTERN CONSTRUCTION, LLC, and TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA, Defendants.
MEMORANDUM AND ORDER
F. Rossiter, Jr. United States District Judge.
matter is before the Court on plaintiff Seedorff Masonry,
Inc.’s (“Seedorff”)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.
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.
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.
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
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.
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
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
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).
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.”
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 ...