Court admits the Engineering Methodology employed by the Civil Engineering Expert Witness affirming its consistency with Concrete Construction Industry Practice

Court admits the Engineering Methodology employed by the Civil Engineering Expert Witness affirming its consistency with Concrete Construction Industry Practice

Archer Western – de Moya Joint Venture (the “JV”) filed a claim against Ace American Insurance Company (“ACE”), their insurer under a completed value builder’s risk policy, concerning the I-395/S.R. 836 Reconstruction/Rehabilitation Project in Miami, Florida. The claim pertained to bridge components constructed using low strength concrete that failed to meet project specifications. The JV sought coverage for rectifying and improving these elements. However, the policy in question excluded coverage for costs related to rectifying defective workmanship or materials. As a result, ACE denied the JV’s claim entirely.

The JV claimed that multiple batches of concrete from Batch Plant No. 1, termed the “Dry Batch Plant,” had an excess of fly ash. This led to reduced compressive strength and longer hardening times. They alleged a failure of the pressure relief valve on the plant’s fly ash silo between August 2020 and November 2020, although they only provided hearsay mentioning the valve being “clogged.” According to the JV, batches of concrete produced during this period were compromised due to excessive fly ash caused by an unspecified and undocumented overpressure condition in the silo. ACE disputed this theory put forth by the JV.

Plaintiff’ expert Mat Radlinski proffered thirteen opinions to substantiate its claims out of which eleven claims were deemed scientifically invalid, irrelevant to ACE’s liability determination, and were considered unhelpful for the fact-finding process by the Defendant.

Defendant’s Daubert motion seeks to exclude Radlinski from opining on:

  1. That petrographic examinations indicated that the low compressive strengths and/or delayed hardening was due to high amounts of fly ash and low amounts of portland cement in the binder;
  2. That the low compressive strengths and/or delayed hardening in the subject elements was not the result of non-compliant raw materials, weighing or batching errors, noncompliant fresh concrete/grout properties or concrete/grout placement, or consolidation or curing techniques utilized during construction of the subject elements;
  3. That the incorporation of excessive amounts of fly ash occurred during batching at the dry batch plant;
  4. That the combination of (1) the batch tickets for the subject elements indicating quantities of fly ash and cement consistent with the mix design and (2) significantly higher fly ash contents and significantly lower cement contents than the mix design as determined in the samples subjected to petrographic examinations suggests that a nominal quantity of cement batched at the dry batch plant consisted of partially cement and partially fly ash. Combined with the nominal amounts of fly ash per the mix designs, the subject concrete/grout contained significantly more fly ash and significantly less cement than per the mix design;
  5. That the variability in compressive strengths and fly ash contents reported in the petrographic reports suggests that the degree of cement contamination by fly ash varied between and within the elements;
  6. That the raw portland cement incorporated into the subject elements was damaged due to the apparent contamination by fly ash, which impaired the value and usefulness of the cement by compromising its strength gaining capabilities associated with hydraulic cementitious properties, making it no longer fit for its intended use in concrete/grout;
  7. That the incorporation of the damaged cement in concrete/grout batches placed in the subject elements had detrimental effect on their physical properties, including compressive strength and rate of hardening, due to altered composition and microstructure of the binder;
  8. That the compromised concrete and grout batches containing portland cement contaminated with excessive amounts of fly ash were not fit for their intended use, and made recovery of embedded steel reinforcement and adjacent concrete/grout batches in those elements infeasible;
  9. That incorporation of concrete/grout batches exhibiting low strength and delayed hardening due to integration of damaged cement into the subject elements had detrimental effects on their structural capacity and rendered them not fit for their intended use and as a result, those elements were rejected and replaced;
  10. That the concrete seal slab at center pier did not act as a groundwater barrier, as intended, which was reportedly due to low concrete strength, and required dewatering the pier over a period of several months and subsequent repairs;
  1. That since the concrete placed in Pier 4-12 footing (which was cast in the same timeframe as the subject elements) that it may have contained excessive amount of fly ash and insufficient amount of cement, the resulting delayed concrete hardening may have contributed to formwork failure during concrete placement due to increased lateral formwork pressure associated with the hydrostatic head of fluid concrete.

Civil Engineering Expert Witness

Mat Radlinski, Ph.D., P.E. works as a Principal Engineer with Exponent, an engineering and scientific consulting firm he has worked for since 2009. He specializes in concrete and cement-based materials. Radlinski’s area of expertise includes analysis and optimization of concrete-mix design, characterization of chemical composition and physical properties of concrete, and evaluation of durability-related concrete failures including cracking, chemical attack, corrosion, and freeze-thaw damage. He is licensed in California as a Professional Civil Engineer, and has published more than twenty studies.

Discussion by the Court

Radlinski was hired by the Plaintiff to assess specific concrete/grout elements that showed signs of low strength or hardening decay. They sought his opinion on whether the materials used in [the selected concrete/grout] elements were damaged, and if yes, what resulting effects it had on those elements.

The Defendant raised multiple arguments against Radlinski’s testimony. Firstly, they argued that his opinions lacked adequate factual basis or supporting data. Secondly, the Defendant contended that Radlinski failed to utilize reliable scientific principles or methods in forming his opinions. Thirdly, they objected to Radlinski testifying about fly ash due to his admitted lack of expertise in concrete batch operations. Lastly, the Defendant asserted that Radlinski’s opinions should be deemed inadmissible under Federal Rule of Evidence 403. It’s important to note that while the Defendant contested Radlinski’s qualifications to testify about batch plants, they explicitly stated that their challenge did not extend to Radlinski’s expertise as a concrete specialist.

The Plaintiff asserted that the Defendant’s argument urged the Court to evaluate the evidence, which they deemed improper. They contended that the Defendant’s position heavily relied on deeming the supporting facts and data insufficient, thus rendering the methodology unreliable. However, the Defendant disagreed, stating that their motion did not seek to have the Court weigh the evidence but rather emphasized that Radlinski’s opinions lacked adequate factual basis or reliable methodology, as mandated by Federal Rule of Evidence 702. They concurred, to some extent, with the Plaintiff’s claim, asserting that there was no substance for the Court to assess since the opinions were founded on insufficient evidence. Additionally, they argued that the methodology was unreliable due to the inadequacy of supporting facts and data.

The Defendant contended that Radlinski’s opinions lacked sufficient factual basis for three main reasons: he relied on limited and selectively chosen data, failed to adequately address conflicting or alternative opinions, and disregarded facts concerning low strength concrete. According to the Defendant, Radlinski’s opinions were solely derived from a review of compressive strength, limited petrographic testing conducted by the plaintiff before the litigation, and a few photographs, which the defendant argued was an oversimplified representation of Radlinski’s sources. However, Radlinski’s declaration contradicted this portrayal, stating that he analyzed an extensive array of documents, including concrete batch tickets; field reports; mill certificates, data sheets and tests results for raw material; compressive strength tests reports; and petrographic examination of representative concrete samples. His declaration aligned with the content of his report.

The Defendant argued that Radlinski’s opinions regarding the Project elements amounted to mere supposition since not all elements underwent testing. However, Radlinski clarified that he couldn’t test elements that no longer existed. His report indicated that cast cylinder and core samples from several elements were submitted for petrographic examination between September 17 and November 3, 2020. Due to the unavailability of the dry concrete batch plant when Radlinski was retained, he couldn’t test the remaining elements. Despite this limitation, Radlinski formed conclusions by reviewing a combination of evidence related to these elements, employing an engineering methodology consistent with standard industry practices for similar forensic investigations.

Radlinski highlighted that no standard guideline exists within the concrete construction industry dictating the specific number of representative samples required for petrographic examination. The adequacy of samples depends on various factors like the size of affected concrete elements, economic factors, accessibility, overall variability of conditions or concrete properties in those elements, and variations in findings from petrographic examinations. He noted that when findings from petrographic examinations align consistently, fewer samples are generally needed to form a reliable opinion concerning the underlying cause of investigated concrete conditions, such as failure, low strength, or deterioration.

Radlinski’s inability to test each element does not bar his testimony, especially when he relied on what he deems to be reliable principles and methods.

The Defendant raised concern over Radlinski not directly sampling, testing, or independently evaluating any Project element, implying that his opinion might be weakened due to this lack of personal assessment. However, the Court citing Kilpatrick v. Breg, Inc., 613 F.3d 1329, 1337 (11th Cir. 2010), held that in the determination of causation, if the methodology used to derive conclusions is deemed reliable and sound, the absence of Radlinski’s direct involvement with the project elements does not fatally undermine the validity of his opinions. Therefore, Defendant’s challenge was better suited for a jury.

The Defendant contended that Radlinski’s report overlooked specific data and alternative theories regarding the cause of low-strength concrete. They pointed out that Radlinski allegedly disregarded data indicating ongoing concrete problems post the purported fixing of the pressure relief valve, extending to the “wet” batch plant. However, the Plaintiff disagreed, highlighting that Radlinski compared results between the “wet” and “dry” batch plants in his report and discussed these distinctions during his deposition. The core of the Defendant’s argument was that Radlinski allegedly failed to consider an alternative theory unrelated to the high fly ash content in the dry batch plant’s concrete issues. The Court found the defense argument unpersuasive, citing Radlinski’s explicit statement that there was no evidence of similar issues in concrete produced by the wet batch plant.

Defendant contended that Radlinski failed to sufficiently address other conflicting or alternative opinions as to the cause of low strength concrete.

The Plaintiff highlighted that Radlinski thoroughly considered alternative theories regarding the cause of low-strength concrete by extensively reviewing and analyzing all project records. This evaluation was evident in Radlinski’s report, notably commencing on page 20, where he specifically addressed alternative theories. He stated, “The following project records further indicate that the low strengths and delayed hardening of concrete/grout in the subject elements were not the result of non-compliant raw materials, weighing or batching errors, or non-compliant fresh concrete/grout properties . . .” Radlinski then proceeded to enumerate and explain how various types of evidence supported this finding. Radlinski initiated the preceding paragraph by stating that the presence of low strengths in the cylinder samples obtained from truck mixers and cured in laboratory conditions suggested that the low strengths of concrete/grout were unrelated to the techniques employed for placement, consolidation, or curing during the construction of the subject elements. The Court agreed with the Plaintiff and noted that the Defendant did not respond to Plaintiff’s argument in its reply.

The Defendant contended that Radlinski should be barred from testifying about the alleged infiltration of fly ash into the cement silo because he lacked expertise in concrete batch plant operations. However, Radlinski emphasized his concrete batch plant expertise based on his education, training, and professional experience. During his Ph.D. research at Purdue University, he visited multiple concrete batch plants, observed their operations, and personally conducted concrete testing on trial and production batches for bridge structures. He also highlighted previous investigations and report writing involving concrete-related losses, such as an incident where fly ash was mistakenly delivered into a cement silo, altering concrete composition. Additionally, over his nearly 15-year tenure at Exponent, Inc., Radlinski conducted numerous investigations related to concrete material failures or performance issues.

The Court held that based on Radlinski’s experience and expertise, he was qualified to opine as an expert.

The Defendant’s Rule 403 arguments regarding Radlinski’s opinions were deemed unconvincing by the Court. They contended that without a causation theory, Radlinski could only offer opinions on two of the eighteen claimed elements. However, Radlinski’s retention was specifically to assess whether the materials used in the subject elements were damaged and to detail the resulting effects, not necessarily to address causation. The argument lacked support as the Defendant did not present any authoritative basis in their motion to illustrate why Radlinski needed to opine on causation, especially when it was not within the scope of his retention, and how that would impact his current opinions.

The Court declined to address multiple arguments related to Florida law and the Plaintiff’s burden of proving causation which was initially absent from the Defendant’s motion. These arguments were excluded from consideration as they were raised for the first time in the reply and were not initially included in the Defendant’s motion.

The Court held that Defendant’s objections to Radlinski’s opinions were misplaced because they were better suited for cross examination. Defendant’s criticisms as to the data he relied on and the theories he considered went to the weight of his opinion, not its admissibility.


The Court denied  Defendant’s Motion to Exclude the testimony of Plaintiff’s expert Mat Radlinski since the challenges to his opinions were best addressed at trial, through vigorous cross-examination and the presentation of conflicting opinion testimony.

The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.

Key Takeaways

In considering expert testimony, several key aspects emerged from the Court’s assessment. The scope of an expert’s opinion was a central point—aligning their testimony with their field of expertise and the specific purpose for which they were retained. Radlinski’s role, for instance, was to assess whether materials used in the subject elements were damaged and its resultant effects, not primarily to establish causation. The Court also emphasized that as long as an expert’s methodology is deemed reliable and sound, the absence of direct involvement with project elements doesn’t necessarily weaken the validity of their opinions. Challenges raised by the Defendant, such as questioning the data used or alternative theories considered by the expert, were noted to be more suited for cross-examination and pertained to the weight of the expert’s opinion rather than its admissibility. Additionally, the Court highlighted the importance of presenting arguments properly within the initial motion, as new arguments introduced in a reply may not be considered.