This case arises out of large solar projects at four sites in Georgia: Perry, Clay, Lumpkin, and Fort Valley. Plaintiff IEA Constructors, LLC was a general contractor for these projects. IEA Constructors hired Defendant Westwood Professional Services, Inc. to prepare plans for stormwater management and sediment control. IEA alleged that Westwood’s design plans were deficient and did not comply with their contract or the permit that governed the contract, resulting in uncontained soil erosion. The other Plaintiff, Infrastructure and Energy Alternatives, Inc., is a third-party beneficiary to the agreement between IEA Constructors and Westwood. The parties refer to the two Plaintiffs collectively as IEA, so the Court will do the same.
Plaintiffs asserted claims for breach of contract, professional negligence, and indemnification. IEA sought damages for the costs of redesigning new plans and then implementing them, among other things.
IEA filed motions in limine seeking to exclude the testimony of Westwood’s experts Jeremy McMillen and Jason K. Ball.
Civil Engineering Expert Witnesses
Jeremy McMillen has more than 20 years of civil engineering experience, including experience in “land development and stormwater design for residential, commercial, industrial, and military projects.”
Jason Kenneth Ball received his Bachelor of Science in Civil Engineering from the Georgia Institute of Technology and a Master of Civil Engineering from Auburn University. Ball is certified by the Georgia Soil and Water Conservation Commission (GSWCC) as a Level 1B Certified Inspector and a Level II Certified Design Professional.
Discussion by the Court
1. Motion to exclude Jeremy McMillen’s testimony
a. Qualifications
IEA contended that McMillen is not qualified to offer opinions about compliance with the permit and the Green Book for the following reasons:
- The permit is governed by Georgia law, but McMillen got his Georgia certification four days before submitting his report.
- He has not performed work on utility-scale solar projects before.
- He has not performed engineering design work since 2013, instead focusing on forensic consulting.
- He does not have the certifications necessary to design Erosion, Sedimentation and Pollution Control plans in Georgia.
- He does not have experience applying the Georgia legal standards that are incorporated into the permit.
These objections fall primarily into two categories: (1) McMillen does not specialize in some of the issues relevant to the case; and (2) McMillen is not expert in Georgia permit regulations. Neither objection is supported by the law.
IEA identified no reason that McMillen’s lack of experience with solar projects or projects in Georgia matter. For example, IEA did not suggest that the relevant engineering principles are substantially different for solar projects or for projects in Georgia. IEA also cited no rule suggesting that an expert must have recent experience doing the thing the expert is testifying about. IEA identified no relevant engineering principles that have changed since 2013.
As for McMillen’s lack of previous experience with Georgia permitting requirements, it is true that the contracts and permits in this case were based on Georgia regulations and standards. But IEA did not explain why that matters either. McMillen is an engineer, not an expert on regulations or permits. By IEA’s own assertion, questions about the meaning of the permit or regulations should be decided by the court, not an expert.
The Court overruled IEA’s objection based on McMillen’s qualifications.
b. Reliability
IEA raised the following objections about the reliability of McMillen’s opinions:
- He did not provide calculations or written analysis to support an opinion that the designs for the Clay and Lumpkin projects satisfied the sediment storage requirements.
- With respect to the same opinion, McMillen’s calculation for the size of the disturbed area is different from Westwood’s design plans, but McMillen does not account for the difference in his report.
- McMillen did not explain how he validated the inputs he used to determine the average slope for each drainage area.
IEA’s first argument is about McMillen’s opinion that Westwood’s design plans for the Lumpkin and Clay projects provide sediment storage for 67 cubic yards per disturbed acre, as required by the Green Book.
Westwood did not dispute that McMillen’s report does not provide a basis for that opinion, it is just a conclusion. In his deposition, McMillen acknowledged that Westwood’s plans do not provide for 67 cubic yards of storage in the form of basins, but he said that the storage requirement is “handled by the other BMPs [best management practices] that were designed to be installed on the site.”
The Court excluded McMillen’s opinions that Westwood’s design plans for the Lumpkin and Clay projects provide sediment storage for 67 cubic yards per disturbed acre, as required by the Green Book.
2. Motion to exclude McMillen’s testimony on legal issues
IEA sought to exclude testimony on several of McMillen’s opinions that IEA characterizes as legal opinions or opinions based on an incorrect legal premise:
- “The Green book states that ‘the total drainage of a temporary sediment trap is up to 5 acres.’ The Westwood plan statement on the plans that ‘temporary basins are required where anticipated disturbance which drains to a common point exceeds 5 acres’ is justified.”
- “Based on the GA100001 permit and Greenbook, the interpretation of Westwood that 67 cubic yards of sediment storage is required per acre of disturbed area is reasonable.”
- “The temporary sediment basins on the site are designed in accordance with the Greenbook.”
- “It is the general contractor’s responsibility to coordinate the activities of the site construction to mitigate interference.”
Analysis
IEA’s motion rests on the view that experts may not testify on legal issues. In a case like this involving technical permitting standards, it is conceivable that an expert’s specialized knowledge could be useful in interpreting a permit. But that is not what McMillen is purporting to do in the quoted statements. Rather, the first two statements are simply assertions that Westwood’s interpretations of the Green Book and permit are “reasonable” and “justified.” He does not purport to be relying on engineering expertise to support his opinions. So the Court excluded those opinions.
The third opinion is different. McMillen is offering the opinion that Westwood’s designs for sediment basins comply with the Green Book. There is no rule against an expert offering an opinion about whether a party complied with a legal standard.
The fourth opinion—that it is “the general contractor’s responsibility to coordinate the activities of the site construction to mitigate interference”—is not identified on its face as an interpretation of a legal standard. McMillen does not explain how he determined what the general contractor’s responsibilities are. Regardless, it is not an engineering opinion, so it falls outside McMillen’s expertise. As a result, the Court excluded that opinion and any opinion that about what a party’s “responsibilities” were.
3. Motion to exclude Jason Ball’s testimony as untimely
Jason Ball is a civil engineer who offered opinions that IEA did not properly install, maintain, or inspect the erosion and sediment control measures that Westwood designed.
IEA sought to exclude Ball’s testimony as untimely. IEA pointed to the court’s January 30, 2026 scheduling order, which imposed a February 27, 2026 deadline for “proponent expert reports” and a March 13, 2026 deadline for “respondent expert reports.” The Court previously explained that “the party bearing the burden of proof on an issue must disclose any expert opinion on that issue by the proponent deadline” and “the party not bearing the burden of proof on an issue must disclose any expert opinion on that issue by the respondent deadline.”
Ball submitted his report on March 13. IEA said that was untimely because Ball’s opinions relate only to issues of contributory negligence or alternative causation, which are both affirmative defenses on which Westwood bears the burden of proof. IEA also said that the untimely report was prejudicial because the Court prohibited a third round of reports, so IEA cannot respond to Ball’s report.
Westwood did not meaningfully respond to IEA’s argument that Ball’s opinion is solely about potential contributory negligence by IEA, so Westwood should have submitted Ball’s report on February 27.
The Court concluded that Ball’s report was untimely. But the Court need not decide whether any prejudice could be cured because Ball’s report does not survive scrutiny under Rule 702, as the Court will discuss in the next section.
4. Motion to exclude Jason Ball’s testimony as inadmissible
IEA objected to the substance of Ball’s report on numerous grounds, including that it included no engineering analysis, did not explain how Ball reached his conclusions, and consisted mostly of a collection of photographs and quotations of other sources.
IEA is correct that there is little analysis in Ball’s report. The report is 179 pages, but the first 162 pages are devoted to a summary of the historical facts and the documents governing the projects (such as the permit and the Green Book), along with descriptions of numerous photographs. None of that is expert testimony. Rather, fact witnesses with personal knowledge can provide that information, so it is not helpful.
Ball also included observations about what some photographs show, but he did not accompany that observation with any expert opinion or explanation.
Of the opinions that Ball did provide, some of them fall outside Ball’s engineering expertise. For example, Ball says that IEA should have flagged questions it had about the design for Westwood and should have notified Westwood about any problems IEA uncovered during inspections. But opinions about what IEA was “responsible” for or what IEA’s “obligations” were are not a matter of engineering expertise, so Ball may not offer those opinions.
Held
- The Court granted in part and denied in part IEA’s motion to exclude Jerry McMillen’s testimony.
- The Court granted in part and denied in part the motion to exclude Jerry McMillen’s testimony on legal issues.
- The Court granted the motion to exclude Jason Ball’s motion under Rule 702.
Key Takeaway
An expert must provide the foundation for his opinions in the report. He may not supplement his opinions in his deposition. But even McMillen’s deposition falls short. An expert may not rely on “calculations in his head” and “good engineering judgment” is not a method that survives scrutiny under Rule 702.
Case Details:
| Case Caption: | IEA Constructors, LLC Et Al V. Westwood Professional Services, Inc. |
| Docket Number: | 3:23cv588 |
| Court Name: | United States District Court, Wisconsin Western |
| Order Date: | June 09, 2026 |
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