VEC, Inc. accused Joyce Electrical Inc. and Hudson Insurance Co. of breaching a building contract between the parties, after Williams Field Service Company LLC awarded VEC a contract to build an electrical substation and distribution line.
After soliciting bids for subcontractors to do the electrical work on the project, VEC hired Joyce. Joyce eventually fell behind on their contractual obligations, prompting VEC to prepare a recovery plan. Joyce allegedly failed to meet the obligations outlined in the recovery plan as well, and allegedly abandoned the project. As a result, VEC had to have other contractors finish the unfinished work. Delays in the project caused VEC to incur $280,000 in liquidated damages to Williams.
Accordingly, VEC filed this action against Joyce and Hudson to collect their losses on the project, which include liquidated damages paid to Williams, additional costs paid to subcontractors to complete Joyce’s obligations, increased overhead and job costs, and lost profits, which total $1,403,035.40 plus interest.
Defendants’ motion in limine seeks to preclude the testimony and expert report of VEC’s expert witness, George P. Ellis, including his expert report, under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).
Construction Expert Witness
George P. Ellis is an experienced Senior Construction Consultant who provides Construction Consulting and Expert Witness services to Contractors, Subcontractors, Owners, Architects, Engineers, Developers, Insurance Companies, Attorneys, etc. for projects located throughout the U.S. Ellis’ Construction Consulting and Expert Witness Services expertise includes Critical Path Method (CPM) Schedule Analysis, Delay and Disruption Analysis, Damages Computation and Analysis, Lost Labor Productivity Analysis, Change Order Preparation and Analysis, Defective Work Claim Review and Analysis, Analysis of Work Scope Disputes, Analysis of Project Impacts from Differing Site Conditions, etc.
Discussion by the Court
Defendants sought to preclude the expert testimony and report of Ellis, arguing that he is not qualified to calculate damages, that his evidence is unreliable, and that his evidence does not fit the issues of the case.
Qualifications
First, Defendants averred that Ellis “had no qualifications to opine on damages.”
It was worth noting that Ellis works on projects ranging from consulting to the tabulation of damages for litigation in the construction industry. Ellis also reports extensive experience tabulating construction damages concerning power plants. Based on his qualifications, the Court found Ellis a qualified expert in construction management and damage calculation for this case.
Reliability
Defendants next submitted that the Report is “devoid of any actual analysis, is full of misrepresentations of the discovery record, and is rife with impermissible conclusions of law.” Additionally, Defendants contended that the opinions of Ellis contain no methods or procedures and are unreliable.
The Court held that the the Report’s analysis relies heavily on Ellis’s practical
experience. Ellis extensively analyzed the record’s construction documents to reach his conclusions. Additionally, Ellis buttresses some of his arguments with independent data, including weather data.
The Court concluded that Ellis used objective grounds to come to his conclusions. Any factual discrepancies do not defeat the reliability of Ellis’ expert evidence, as Defendants will have the ability to cross-examination Ellis on these issues at the time of trial.
Fit
Finally, Defendants submitted that “Ellis’ opinions do not fit the case and will not help the factfinder understand any evidence or decide any fact in dispute.” Basically, Defendants argued that the case is too straightforward for expert interpretation and that his “net opinions, or ipse dixit, should be excluded from evidence because they “would be completely unhelpful or harmful to the trier of fact.”
The Court found that the issues in the case were sufficiently industry-specific to allow an expert to aid the trier of fact. Due to his practical experience and thorough report, Ellis’s expert evidence fit the issues in this case. However, to the extent Ellis’s conclusions ventured into legal conclusions, the Court proceeded to exclude them. Otherwise, Ellis’s evidence sufficiently fits the issues of this case under Federal Rule of Evidence 702.
Held
The Court granted in part and denied in part the Defendants’ motion in limine to preclude the expert testimony of George P. Ellis.
Key Takeaways:
- Daubert factors such as peer review, publication, and potential error rate “simply are not appliable, when the reliability of testimony from a practical expert depends heavily on the knowledge and experience of the expert, rather than the methodology or theory behind it.”
- The practical experience expert’s evidence can fit the issues of the case by utilizing the available facts and his practical experience to help the trier of fact navigate complex industry-specific matters.
Case Details:
| Case Caption: | Vec, Inc. V. Joyce Electrical, Inc. Et Al |
| Docket Number: | 3:19cv2148 |
| Court: | United States District Court, Pennsylvania Middle |
| Order Date: | October 08, 2024 |
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