Construction Expert Witness’ Damages Analysis Admitted Despite Late Disclosure
Posted on October 23, 2024 by Expert Witness Profiler
This case stems from a 2022 subcontract between HBonilla (Plaintiff) and Defendant Ragle, Inc. (“Ragle”) for HBonilla to perform work for the City of Dallas. In 2023, Ragle claims it discovered that HBonilla had been overbilling for its work. After a dispute, HBonilla stopped working on the project and filed a lawsuit against Ragle and its sureties, Colonial American Casualty and Surety Company (“Colonial”) and Fidelity and Deposit Company of Maryland (“Fidelity” and, collectively with Colonial, the “Sureties”). Ragle and the Sureties in turn brought counterclaims against HBonilla for the amount they alleged was overbilled.
Shortly after, the Court issued a Scheduling Order, setting January 29, 2024, as the deadline for parties to designate experts for affirmative claims and February 28, 2024, for rebuttal experts. Unfortunately, Ragle and the Sureties’ previous counsel experienced a medical emergency in early 2024, and their current counsel appeared in April. The parties agreed to extend the deadline for rebuttal expert designations to May 20, 2024.
By that date, Ragle and the Sureties designated three experts: William Tusa, Troy Ragle, and William Rather. Both Troy Ragle and William Rather were non-retained experts. Rather served as Controller at Ragle, Inc., while Troy Ragle was the Vice President. HBonilla argued that these experts addressed Ragle and the Sureties’ affirmative claims, not just rebuttal purposes, and claimed they were improperly designated after the affirmative expert deadline. Consequently, HBonilla filed a motion to exclude the Defendants’ expert testimony on the grounds that they designated the experts after the deadline had passed.
Construction Expert Witness
William Tusa is a Senior Managing Director at FTI Consulting. He is a member of the Construction, Projects & Assets practice and is based in Houston. Tusa has extensive experience providing a wide range of construction consulting and advisory services focused on analysis and resolution of construction contract disputes.
Over Tusa’s career, he has consulted with clients on the preparation, monitoring and analysis of schedules and programs for construction projects both nationally and internationally.
Tusa has provided program advisory services to executive level leadership and construction management personnel in the areas of process improvement, performance evaluation, CPM development, change order analysis, claim preservation and prevention, cost assessment, project control (cost and schedule) implementation, contract management, dispute resolution and project close out.
Discussion by the Court
In deciding whether to admit testimony from experts designated after the deadline, the Court considered four factors: (1) the explanation for the failure to identify the witness; (2) the importance of the testimony; (3) the potential prejudice in allowing the testimony; and (4) the availability of a continuance to cure any prejudice.
Experts are not timely designated and disclosed
First, the Court read through the explanation the parties provided for designating their experts late. Ragle and the Sureties’ current counsel had not yet appeared when the deadline to designate affirmative experts passed. They did not anticipate needing experts to substantiate their counterclaim for damages. After the deadline for designating affirmative experts had passed, Ragle and the Sureties claimed that Tusa conducted an analysis that resulted in a different damages amount. Ragle and the Sureties planned to Tusa’s analysis for both their rebuttal to HBonilla’s damages and for their own affirmative counterclaim.
Ragle and the Sureties designated a rebuttal expert whose testimony supports their affirmative claim because of the intertwined nature of Ragle and the Sureties’ rebuttal to HBonilla’s damages claim and their own counterclaim.
Importance of the Testimony
Next, the Court considered the importance of the testimony. The case centered on calculations related to HBonilla’s work as a subcontractor for Ragle, including invoices and payments. The expert testimony directly addressed core issues of what the parties may owe each other, influencing the Court’s decision to allow it.
Potential Prejudice from Allowing the Testimony
The Court considered any potential prejudice permitting the testimony may cause. In this case, HBonilla has had ample time—four months—to consider the experts’ testimony before the close of discovery on September 16, 2024. HBonilla notes in its motion that it had no time to serve written discovery on Ragle regarding these experts, but that was before the Court granted an extension of the discovery period. On the other hand, it would be prejudicial to deprive Ragle and the Sureties of expert testimony regarding their counterclaim, and it would certainly be extremely prejudicial to deprive them of expert testimony to rebut HBonilla’s claims. Because their rebuttal and affirmative testimony is essentially the same, this factor cuts in favor of Ragle and the Sureties.
Availability of a Continuance to Mitigate Prejudice
Finally, the Court considered the availability of a continuance to alleviate any undue prejudice caused by allowing the expert testimony. Since HBonilla has already had time to conduct needed discovery, and even opposed a continuance in its motion, the Court found no need to grant one.
Held
The Court denied HBonilla’s motion to exclude Defendant’s expert witness William Tusa.
Key Takeaway:
The Court decided to admit the construction expert witness’ damages analysis despite the late disclosure. This case hinges on the parties’ calculations of HBonilla’s work as a subcontractor for Ragle and the invoices and payments related to that work. The central issue is the calculation of what the parties may owe each other, and this expert testimony speaks to those calculations. The Court noted that HBonilla had sufficient time to evaluate the expert testimony before the close of discovery and concluded that denying Ragle and the Sureties the opportunity to present this testimony would cause undue prejudice
Case Details:
| Case Caption: | Hbonilla LLC v. Ragle, Inc., et al |
| Docket Number: | 3:23cv1478 |
| Court: | United States District Court for the Northern District of Texas, Dallas Division |
| Order Date: | September 13, 2024 |
