This case is centered around a contractual dispute between Greenup Industries, LLC (“Greenup”), the general contractor, and Five S Group, LLC (“Five S”), the subcontractor, along with the involvement of Hartford Fire Insurance Company (“Hartford”), related to excavation work on a U.S. Army Corps of Engineers (“USACE”) project.

In 2020, Greenup was awarded a contract to execute a specific scope of work related to the United States Army Corps of Engineers’ Hurricane Storm Damage Risk Reduction Project at the Bonnet Carre Spillway, referred to as the Stockpile #1 work (the “Prime Contract”). The comprehensive work involved excavating a designated amount of fill from Bonnet Carre Spillway and transporting it to another specified location. Subsequently, Greenup initiated the process of soliciting bids from subcontractors to undertake particular aspects of the Stockpile #1 work, and Five S submitted a bid proposal to Greenup.

On October 26, 2020, Greenup, as the prime contractor, entered into a subcontract (“Subcontract”) with Five S, the subcontractor. The terms of the Subcontract outlined that Five S would be responsible for providing labor and equipment to prepare the excavation site and excavate 1,000,000 cubic yards (“CY”) of fill material (the “Work”). The Subcontract stipulated that the excavation of 1,000,000 CY of fill material should be completed within approximately 15 months. Notably, Five S was awarded only a portion of the total Work and did not receive any trucking or delivery responsibilities; the Subcontract exclusively focused on site preparation and excavation. The Subcontract also integrated the schedule of the Prime Contract.

Greenup retained the authority to schedule the work, and Five S had the obligation to complete the various components and the entirety of the Subcontract Work in accordance with the schedule outlined in the Prime Contract with the USACE or as directed by Greenup. Throughout the course of the litigation, Five S and Hartford consistently asserted that Five S was entitled to standby time for delays purportedly caused by Greenup. Additionally, they contended that Greenup was obligated to provide a specific number of trucks under the Subcontract.

Now, the current motion before the Court involved Greenup’s request to strike and/or limit the expert testimony and reports of David E. Lourie, retained by Five S. Greenup argued that Lourie’s proposed testimony contained impermissible legal conclusions and should be excluded from the trial. Specifically, they disputed two of Lourie’s opinions concerning contractual interpretation and another opinion which questioned the factual support on soil moisture at the project site. Five S, in opposition, defended Lourie’s qualifications and asserted that his testimony could help in resolving the terms of the subcontract which the Court found ambiguous. The Court was tasked with deciding whether Lourie’s expert opinions should be admitted into evidence.

Geotechnical Engineering Expert Witness

David E. Lourie P.E., D.GE, is CEO and founder of Lourie Consultants, a geoprofessional firm based in Louisiana near New Orleans. He has been practicing geotechnical engineering and geoenvironmental consulting for nearly 40 years. He is an adjunct professor at the University of New Orleans and has been an adjunct associate professor at Tulane University.

Discussions by the Court

The Court analyzed the motion to exclude expert testimony in accordance with Federal Rules of Evidence 702 and 704. Federal Rule of Evidence 702 served as the governing framework for the admissibility of expert witness testimony, emphasizing the need for the expert’s knowledge, skill, experience, training, or education to assist the trier of fact in understanding the evidence or determining a fact in issue. Trial Courts are entrusted with the responsibility of acting as gatekeepers to ensure the reliability and relevance of expert testimony before allowing it into evidence, following the principles set forth in Daubert v. Merrell Dow Pharmaceuticals (1993). Daubert established that expert testimony must not only be relevant, in the sense that it pertains to a fact in issue, but also reliable. An expert’s testimony had to meet the requirement of relevance, which extended beyond the general relevance criteria specified in Federal Rule of Evidence 402. Specifically, the expert’s proposed opinion needed to assist the trier of fact in understanding or determining a fact in issue.

In the case at hand, the primary issue raised by Greenup and was the admissibility of three specific opinions put forward by David Lourie, the proffered expert. The first legal conclusion was “Opinion One,” where Lourie made at least two ultimate legal conclusions: firstly, that the Five S bid proposal was incorporated into the Subcontract, and secondly, that it did not conflict with the other contract documents. Importantly, he stated, “[t]herefore and subject to legal interpretation, we believe FSG is entitled to compensation for its standby time in accordance with its bid proposal”. The second legal conclusion was “Opinion Two,” where Lourie contended that the primary reason for low productivity and schedule slippage was Greenup’s inability to provide the required number of trucks consistently. Lastly, in “Opinion Three,” Lourie attempted to discredit Greenup’s claims regarding the adverse impact of wet clay on Five S’s performance. He did so by presenting another legal and ultimate conclusion, stating, “Therefore, we conclude there is no basis for JW’s allegation that FSG’s ‘means and methods’ were responsible for the clays being too wet.” Importantly, this conclusion was not based on a scientific analysis but on his assertion that Greenup “should have anticipated that the excavated soils loaded into trucks could be ‘wet’ and require processing.” Notably, Greenup contended that Lourie failed to provide factual support for this assertion, and it contradicted the explicit terms of the Subcontract, which assigned all means and methods to Five S.

The Court emphasized the well-established principle that experts were not allowed to render conclusions of law, citing Goodman v. Harris County. The specific legal issue under consideration was whether the Subcontract incorporated the Bid Proposal, which constituted a question of contractual interpretation. The Court noted that while experts could assist in resolving contractual ambiguities by shedding light on industry customs and usage, Lourie’s background and experience as a civil and environmental engineer did not qualify him to provide opinions on contractual responsibilities.

The Court cited the case of Dickson v. Sklarco L.L.C., which addressed a similar situation where an expert outside the field of law was found to be improper in rendering legal conclusions. In this case, the Court concluded that Lourie’s testimony about the contractual obligations of the parties was outside the scope of his expertise and qualifications. The Court found that Lourie did not provide evidence or reasoning based on industry customs or practices that would support his opinions regarding the contractual obligations.

While the Court acknowledged that expert testimony should be admitted if it helped the jury understand complex technical matters, it was of the opinion that Lourie’s testimony went beyond this scope and encroached into the realm of legal conclusions. As such, the Court decided that Lourie’s legal opinions concerning the contractual aspects should not be admitted as expert testimony. It emphasized that Lourie was not licensed to practice law in the state of Louisiana and, therefore, was not qualified to offer legal conclusions on contractual responsibilities of the parties.

The Court, however, found Lourie’s testimony in “Opinion Three” regarding soil moisture to be based on sufficient facts and data. Lourie had relied on USACE test results, preconstruction soil boring data, and other project documents. This met the requirements of Federal Rule of Evidence 702, as it was firmly grounded in data and the expert’s experience in the field. The Court noted that the opposing party’s disagreement with Lourie’s interpretation of the facts did not render his opinion irrelevant or unreliable. The Court highlighted that challenges to the factual basis of expert opinions were more appropriately addressed through cross-examination during the trial. The Court stated that under the adversarial system, challenges to the factual basis of an expert opinion were best addressed through cross-examination rather than exclusion.

Held

Greenup’s request to strike and/or limit the expert testimony and reports of David E. Lourie was granted in part and denied in part by the Court. The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.

Key Takeaways

This case demonstrates the importance of ensuring expert witnesses stay within the bounds of their expertise when testifying. The Court excluded portions of the expert’s proposed testimony that strayed into providing legal conclusions, rather than keeping to his area of technical expertise. Specifically, the engineering expert was prohibited from opining on the meaning of contract terms, whether one document was incorporated into the contract, and the contractual responsibilities of the parties. Interpreting contracts requires specialized legal knowledge the expert did not possess. However, the expert was permitted to testify regarding technical engineering issues like soil moisture content that were within his qualifications.

This case underscores that Courts serve a gatekeeping role in screening expert testimony to ensure it is relevant and reliable under Daubert standards. Experts cannot draw legal conclusions better left to the jury. However, experts may offer opinions on technical questions within their field of expertise that will assist the trier of fact. Challenges to the factual bases for an expert’s opinion are better handled through cross-examination rather than exclusion. Overall, this case provides guidance on confining expert testimony to the proper scope so it constructively contributes to the resolution of disputed issues.

Tag: Contractual Obligations

Geotechnical Engineering Expert Witness’ testimony does not fully pass Daubert Scrutiny as Court rejects his legal conclusions on contractual responsi...

Geotechnical Engineering Expert Witness’ testimony does not fully pass Daubert Scrutiny as Court rejects his legal conclusions on contractual responsibilities