P&E is a Kansas-based contractor who entered into a design-build contract with WI RNG Hub North, LLC, for a renewable natural gas production facility in Gillet, Wisconsin (the “Project”) to be completed by February 27, 2023. The Project included construction of two buildings to house process equipment for producing renewable natural gas from dairy cow manure and dryer equipment for producing a fiber by-product. To complete the Project, P&E entered into subcontracts with various companies, including Crescent Power, Bayland Building, Inc. (“Bayland”), and Air Liquide Advanced Technologies U.S., LLC (“Air Liquide”). P&E retained Crescent Power as a material supplier to deliver electrical-power equipment to the Project location, including switchboards and MCCs.
The Project faced several schedule delays and was completed 175 days behind schedule. Relevant here, P&E alleged that Crescent Power failed to deliver the MCCs on time under their contract. P&E alleged that Crescent Power’s late delivery, combined with its other subcontractors’ contractual failures, significantly delayed the Project’s overall com.
P&E retained Christopher J. Smocke to review the Project, including its five-page critical path schedule, and offer opinions on the causes of the Project’s delays and resulting damages to P&E. Regarding Crescent Power, Smocke opined that it delivered the MCCs 69 days late, is 41% at fault for the first 140 days of the delay to the Project’s completion, and is responsible for $762,415 of P&E’s total damages.
Crescent Power filed a motion to exclude Smocke’s opinions under Rule 702 of the Federal Rules of Evidence.
Construction Expert Witness
Christopher J. Smocke has worked as a Senior Project Manager, Project Executive, Vice President, and President in various construction companies, for general contractors, and for construction owner’s representative firms. In these roles, he managed budgets and organized schedules for several multi-million-dollar projects. He has also conducted informal mediations where he allocated responsibility between multiple parties in construction project disputes. Further, Smocke has been retained as an expert in three arbitrations and two lawsuits, offering opinions on construction delays and resulting damages.
Discussion by the Court
A. Qualifications
First, Crescent Power argued that Smocke lacked the requisite qualifications to offer his opinions. Crescent Power recognized that Smocke has over 50 years of experience in construction project management, but argued that he lacked specific experience or education in conducting forensic schedule analyses and allocating fault pursuant to Association for the Advancement of Cost Engineering (“AACE”) standards.
The Court concluded that P&E met its burden to show that Smocke is sufficiently qualified based on his significant experience in construction project management.
B. Reliability of Methodology
Crescent Power argued that Smocke’s opinions are ipse dixit because he did not conduct a forensic analysis of impacts on the Project’s critical path pursuant to one of the AACE or Society of Construction Law’s prescribed methods.
In his report, Smocke identified which delays he opined affected the overall completion of the Project based on his review of the case and his experience. For example, he discussed how Crescent Power’s late delivery of MCCs impacted the Project’s overall completion because the switchboards could not be powered up without them, holding up work in both Project buildings and all systems for renewable natural gas production. As P&E pointed out, his discussion mirrors both AACE and Society of Construction Law principles on disruption and delay to construction projects.
Crescent Power also identified what it considered as “blatant errors” in Smocke’s opinions to demonstrate that his methodology is unreliable. To begin with, Crescent Power argued that Smocke added days to the calendar to reach his opinion that 140 days of delay should be apportioned between Crescent Power, Bayland, and Air Liquide. P&E asserted that Crescent Power simply misunderstood Smocke’s testimony regarding the 140 days. Crescent Power also argued that Smocke failed to consider other delays not caused by Crescent Power in his analysis, but P&E asserted that Smocke correctly considered other delays.
The Court is concerned, however, with Smocke’s methodology for allocating fault and damages between P&E’s subcontractors. To do so, Smocke took the number of days he determined that Crescent Power missed its required delivery dates (69) and divided that number by the total of late delivery days he determined between Crescent Power, Bayland, and Air Liquide (168) to allocate a percentage of fault to Crescent Power (41%) and ultimately conclude that Crescent Power is responsible for $762,415 in damages.
C. Sufficiency of Underlying Facts & Data
Crescent Power also challenged the sufficiency of the facts and data underlying Smocke’s opinions. To begin with, Crescent Power argued that Smocke’s deposition testimony contradicted his opinion assigning 69 late delivery days to Crescent Power. This argument is similar to Crescent Power’s concern over Smocke’s assignment of 140 Project delay days between Crescent Power, Bayland, and Air Liquide. Likewise, the Court reached a similar conclusion and determined that Crescent Power’s concern goes to weight as opposed to admissibility and can be sufficiently addressed on cross-examination.
Second, Crescent Power again argued that Smocke’s opinion is unreliable because he did not conduct a formal Critical Path Methodology (“CPM”) analysis to establish that the MCCs were on the critical path to the Project. CPM is a a term of art for a method of scheduling and administering construction contracts, and its common use in resolving disputes over excusable-delay claims. The Court also rejected this argument.
Third, Crescent Power challenged Smocke’s allocation of fault and damages between P&E’s subcontractors on sufficiency grounds two ways: (1) he failed to independently evaluate P&E’s alleged damages; and (2) his allocation was purely speculative and unhelpful to the jury. The Court had already determined that P&E failed to establish that Smocke used a reliable methodology to allocate fault and damages between P&E’s subcontractors.
Held
The Court granted in part and denied in part Crescent Power’s motion to exclude the testimony of Christiopher Smocke.
Key Takeaway
P&E failed to address Smocke’s formula for allocating fault entirely, let alone explain how it is reliable under Daubert. Because P&E failed to establish this methodology is reliable, the Court did not not permit Smocke to testify to his opinions allocating fault and damages between P&E’s subcontractors based on his self-created formula.
Case Details:
| Case Caption: | P&E Solutions, LLC V. Crescent Power Systems, Inc. |
| Docket Number: | 6:24cv1209 |
| Court Name: | United States District Court, Kansas |
| Order Date: | May 08, 2026 |
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