Slip Opinion
D. Neb.Oct 21, 2019Background
- Sodexo America, LLC and Regional West Health Services entered a five-year management Agreement (with multiple amendments) under which Sodexo was to provide a project manager for plant operations/maintenance and implement a CMMS (Maximo).
- Regional West terminated the Agreement in 2017 and alleged Sodexo breached its project-management obligations on a hospital pharmacy construction project and failed to provide Maximo data upon termination.
- Regional West seeks roughly $348,146 for pharmacy-related remediation (largely Beckenhauer and Olsson invoices) and $25,000 for Maximo/data-related damages. Sodexo counters these are either consequential or speculative.
- Sodexo moved for partial summary judgment seeking: (1) a ruling that pharmacy damages are barred as consequential damages under the contract’s consequential-damages waiver; and (2) dismissal of the Maximo damages as speculative. Sodexo also moved in limine under Daubert/Rules 701/702 to exclude testimony about the construction project-manager standard of care because Regional West did not designate an expert.
- The court denied summary judgment on both the pharmacy and Maximo damage issues but granted the motion in limine to exclude any Regional West witness from testifying about the standard of care for construction project managers (specialized expert testimony required).
Issues
| Issue | Plaintiff's Argument (Sodexo) | Defendant's Argument (Regional West) | Held |
|---|---|---|---|
| Whether pharmacy remediation/rework costs are barred as consequential damages under the contract’s waiver | These costs arise from third-party design/contractor failures and are consequential, thus excluded by the contract’s consequential-damages clause | Damages flow directly from Sodexo’s failure to perform its bargained-for project-management duties (oversight, permits, coordination), so they are direct contract damages | Denied: jury could find damages were directly caused by Sodexo’s breach and not merely consequential; summary judgment on this issue denied |
| Whether Regional West’s $25,000 Maximo/data damages are too speculative to recover | The $25,000 figure was essentially picked by Regional West’s witness and lacks a reasonably certain basis | Damages derive from wasted mechanic time, hiring consultants to migrate missing data, and loss of data that Sodexo should have collected—Gifford provided factual bases | Denied: court will not decide now; sufficiency of Maximo damages evidence is for trial |
| Whether Regional West can present testimony on the standard of care for construction project managers without an expert designation | Regional West failed to designate an expert; testimony on standard of care is specialized and must be excluded under Daubert/Rule 702 | Regional West says testimony will be fact testimony about what witnesses observed and discovered, not expert opinion; it also contends standard-of-care (a negligence concept) is not essential to its contract claim | Granted in part: the court barred any Regional West witness from testifying as to the standard of care for construction project managers (requires expert under Rule 702); other testimony not yet ruled out |
Key Cases Cited
- U.S. Pipeline, Inc. v. N. Nat. Gas Co., 930 N.W.2d 460 (Neb. 2019) (defines consequential vs. direct contract damages)
- Shipler v. Gen. Motors Corp., 710 N.W.2d 807 (Neb. 2006) (damages evidence cannot be speculative)
- Pribil v. Koinzan, 665 N.W.2d 567 (Neb. 2003) (uncertainty as to amount not fatal if reasonable basis for computation exists)
- LeRoy Wevant & Sons, Inc. v. Harvey, 321 N.W.2d 429 (Neb. 1982) (plaintiff must prove damages with as much certainty as the case permits)
- Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) (admissibility standard for expert testimony under Rule 702)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) (summary-judgment standard re genuine issue and weighing inferences)
- Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (movant’s burden on summary judgment)