Construction Expert Allowed to Opine on the Need for Additional Inspections

This suit arises from construction work agreements formed in the days following Hurricane Laura, which struck Southwest Louisiana on August 27, 2020. Plaintiff/Counter-Defendant Billy Navarre Certified Used Car Imports, LLC; Billy Navarre Imports, Inc.; Lake Charles Auto Plaza, Inc. d/b/a Louisiana Direct Auto; Navarre Chevrolet, Inc.; Navarre Management, LLC; and Navarre Nissan LLC (collectively, "Navarre") owns and operates several dealerships in Lake Charles and Sulphur, Louisiana. Navarre sustained damage to these properties during Hurricane Laura, requiring mitigation and repairs to roofing, ceilings, insulation, lighting, electrical, plumbing, and structural components.

Navarre sued Claremont in the Court on January 19, 2024, alleging that the latter had breached the subject work agreements by failing to (1) provide all necessary equipment for the repairs, (2) provide invoices every two weeks, and (3) complete portions of the repairs in a good and workmanlike manner, which caused additional damage to the properties. In its Second Amended Complaint, Navarre raised claims of (1) failure to perform and bad faith breach of contract, (2) rescission due to fraud or error, and (3) absolute nullity. It sought damages and declaratory relief. In response, Claremont filed counterclaims of (1) breach of contract, (2) breach of the covenant of good faith and fair dealing, (3) open account, (4) unjust enrichment/quantum meruit, and (5) defamation. The Court determined, based on Navarre's motions to dismiss, that the subject work agreements were an absolute nullity for all work performed before Claremont obtained a Louisiana commercial contractor license and that the defamation claim was premature.

The matter was originally set as a jury trial before the judge. Subsequently, however, Navarre filed an unopposed motion to strike the jury trial designation. The Court granted the motion and reset the jury trial scheduled for October 19, 2026, as a bench trial to proceed on the same day. While the case was still set as a jury trial, Claremont filed its motion seeking to exclude certain opinion testimony from Robert Ehlers and Kirk Toups for (1) failure to timely comply with the disclosure and report requirements of Federal Rule of Civil Procedure 26(a)(2)(B) and (2) failure to conform to Federal Rule of Evidence 702 and the Daubert standard.

Accounting Expert Witness

Robert A. Ehlers, Sr. is a Certified Public Accountant, Accredited in Business Valuation, Certified in Financial Forensics, Certified Business Appraiser and Certified Valuation Analyst. Ehlers is the sole member of Ehlers and Associates, CPAs, LLC (Ehlers), and has practiced in Louisiana in the areas related to his professional designations since 1983.

Want to know more about the challenges Robert Ehlers has faced? Get the full details with our Challenge Study report.

Construction Expert Witness

Kirk Toups is a seasoned construction and real estate professional with over 20 years of experience spanning custom home building, real estate portfolio management, land development, and construction consulting.

Get the full story on challenges to Kirk Toups' expert opinions and testimony with an in-depth Challenge Study.

Discussion by the Court

1. Robert Ehlers

Navarre's accounting expert, Ehlers, stated in his report that he was engaged to determine whether information provided to him — principally Claremont Property Co. invoices and estimate worksheets — was sufficient, competent evidence to reasonably verify that those construction costs were incurred by Claremont.

Claremont objected on the basis of relevance, because its claims were now centered on unjust enrichment. It also pointed out that it had produced thousands of pages of expense logs, invoices, and receipts to Navarre, which were not available at the time Ehlers issued his report.

The production of additional records did not permit supplementation of the report that close to trial. As for the original report, however, "most of the safeguards provided for in Daubert are not as essential in a case such as this where a district judge sits as the trier of fact in place of a jury." That was the case here, where Claremont's sole concern was one of relevance/confusing the issues. Ehlers could offer testimony based on his original report, and the Court would determine if it had any relevance to the issues presented.

2. Kirk Toups

Rule 26

Claremont sought to exclude opinion testimony based on deficiencies in the reports provided by Navarre's construction expert, Kirk Toups. The Court's last scheduling order set Navarre's expert disclosure deadline for June 22, 2026. Navarre first provided a report from Toups on May 4, 2026, but this document did not contain a signature page or include Toups' curriculum vitae, list of publications, list of prior expert testimony in the last four years, or rate of compensation. Navarre then provided a supplemental report on August 13, 2026, which included a curriculum vitae along with additional opinions based on a May 22, 2026, inspection. However, Navarre did not seek leave to file a supplemental report, and the Court's scheduling order provided: "No supplemental reports or additional expert witnesses will be permitted outside of these deadlines without leave of Court upon a showing of good cause."

Navarre pointed out that Claremont did not seek leave to depose Toups after receiving either of his reports. There was also no indication that Claremont had requested cure of the technical deficiencies before filing the motion. Navarre therefore requested leave to cure the deficiencies before the Court took any action against its witness on this basis. Navarre argued that, as numerous courts had concluded, untimely disclosure of items such as the fee schedule or list of prior testimony fell short of the prejudice required by Rule 37(c)(1) to justify striking a party's expert witness.

The Court therefore granted Navarre seven days from the date of the ruling to amend the first, timely report as to the identified deficiencies under Rule 26(a)(2)(B) only. Navarre could not use this opportunity to expand on any of Toups' opinions provided within the first report.

As for the supplemental report, Navarre provided no defense for its failure to abide by the Court's scheduling order. The Court's scheduling order governed the deadlines for expert disclosures. The Court could still allow the supplement if a party showed good cause under Rule 16(b), considering the same four factors provided under Rule 37(c). But Navarre provided no explanation or argument for the importance of the supplement. Further, a continuance was not available at that late stage, and Claremont was plainly prejudiced by the supplementation of Navarre's expert reports after its own expert deadline had passed. Accordingly, the Court granted the motion insofar as it limited Toups' testimony to the opinions contained in his first report.

Reliability

Claremont maintained that the first Toups report fell short of Daubert's reliability standards because of the admitted limitations on his evaluation, as embodied in his numerous recommendations for additional inspections and the need to obtain expert opinions from other contractors. For instance, based on his observation of exposed wiring at the car wash, Toups opined that "the electrical conditions observed may pose safety risks and should be evaluated promptly by a licensed electrician" and that Navarre "may incur additional costs to address remaining issues." He also determined that exterior repairs to the Hyundai dealership were incomplete, despite Navarre's payment for the full invoiced amount. He recommended that Navarre obtain evaluations from licensed cladding contractors, "as the scope of work has likely expanded due to prolonged exposure."

Claremont further asserted that Toups' opinions were irrelevant, because he discussed the percentage of completed work. Now that contract claims had been extinguished, Claremont's basis for recovery was not the completion of the contract but rather its unjust enrichment claim and Navarre's attempt to offset same by attacking Claremont's workmanship. As noted above, however, the Court could readily sort out irrelevant evidence in the bench trial. Toups' firsthand impressions on the workmanship of Claremont's repairs, including the need for additional evaluations by specialists, were potentially helpful to the Court.

He was limited to the opinions offered in his first report, but could supplement, elaborate upon, and explain his report in his oral testimony.

Held

The Court granted in part and denied in part Claremont's motion to exclude expert testimony, limiting Toups to testifying on the opinions provided in his first report.

Key Takeaway

Rule 26 does not limit an expert's testimony simply to reading his report. Instead, the rule contemplates that the expert will supplement, elaborate upon, and explain his report in his oral testimony. However, a complete report must provide the substance of the testimony the expert will offer along with his reasons.

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