47 F. Supp. 3d 53
D.D.C.2014Background
- Army contracted Fort McNair window/door project via IIU as general contractor; IIU subcontracted to Forney, who subcontracted Window Specialists (WSI) for labor/materials.
- Army issued a May 25, 2011 cure notice for substandard work; WSI not adequately cured by June 2011.
- IIU terminated Forney on June 29, 2011; IIU completed work with demolition of WSI-installed windows and re-procurement of windows/doors.
- WSI was terminated for default by Forney on Sept. 8, 2011; Forney sought costs, damages, and reimbursement from WSI.
- WSI alleged deficiencies were caused by IIU demolition/pre-installation issues and asserted contract exclusions for certain scopes of work; Forney claimed substandard performance by WSI.
- Court proceedings focused on motions in limine regarding expert testimony (WSI) and evidence related to IIU and Army payments; the case is bench-tried with Forney asserting damages including lost profits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Donnelly as expert/witness | Donnelly is not a retained expert; no report required | Donnelly may offer expert opinions and is a hybrid fact/expert witness | Donnelly testimony admitted; no expert-report requirement needed for this witness. |
| Admissibility of IIU demolition evidence | IIU demolition caused deficiencies; evidence relevant | Evidence Irrelevant/Confusing; seek exclusion | Demolition evidence admissible; issues for court to weigh. |
| Exclusion of Army payments to IIU evidence | Evidence needed to show payment flows and damages | Governor/contract relation not party; evidence prejudicial | Evidence of IIU invoices/payments to the Government excluded. |
| Peterson expert report's content | Peterson offers damages/interpretation not legal conclusions | Legal conclusions by an expert should be excluded | Peterson testimony denied for exclusion? (court allowed; not excluded as it contains non-legal conclusions; see text) |
Key Cases Cited
- Kuhmo Tire Co. Ltd. v. Carmichael, 526 U.S. 137 (Supreme Court 1999) (Daubert reliability and relevance standard for expert testimony)
- Daubert v. Merrell Dow Pharm., 509 U.S. 579 (Supreme Court 1993) (Gatekeeping duty for admissibility of expert testimony)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (Supreme Court 1992) (Standing requires concrete and particularized injuries)
- United States ex rel. Mossey v. Pal-Tech, Inc., 231 F. Supp. 2d 94 (D.D.C. 2002) (Legal-conclusions by experts may be excluded; bench trial context mitigates risk)
- United States v. H&R Block, Inc., 831 F. Supp. 2d 27 (D.D.C. 2011) (Bench trial reduces risk of jury confusion with expert testimony)
- Whitehouse Hotel Ltd. P’ship v. Comm’r of Internal Revenue, 615 F.3d 321 (5th Cir. 2010) (Cited regarding expert testimony and reliability)