Case 4:15-cv-00585-CAN Document 60 Filed 08/01/17 Page 1 of 25 PageID #: 1072
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`SHERMAN DIVISION
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`Plaintiff,
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`GLENN IHDE,
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`v.
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`HME, INC.,
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`CIVIL ACTION NO. 4:15-CV-00585-CAN
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`§
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`Defendant.
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`MEMORANDUM ORDER AND OPINION
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`Pending before the Court are Defendant HME, Inc.’s (“Defendant”) Supplemental Motion
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`to Strike and Exclude Testimony of Plaintiff’s Expert Kerri Olsen [Dkt. 41] and Motion to Strike
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`and Exclude Rebuttal Testimony of Plaintiff’s Expert Kerri Olsen [Dkt. 48] (collectively the
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`“Motions”). On April 12, 2017, the undersigned conducted a hearing and heard oral argument
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`from both Plaintiff Glenn Ihde (“Plaintiff”) and Defendant on the Motions [Dkt. 58]. After
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`considering the Motions, all relevant filings and evidence, as well as the oral argument of counsel
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`at hearing, the Court finds that Defendant’s Supplemental Motion to Strike and Exclude Testimony
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`of Plaintiff’s Expert Kerri Olsen [Dkt. 41] is DENIED, and that Defendant’s Motion to Strike and
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`Exclude Rebuttal Testimony of Plaintiff’s Expert Kerri Olsen [Dkt. 48] is GRANTED IN PART
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`AND DENIED IN PART.
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`BACKGROUND
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`Plaintiff filed the instant lawsuit seeking damages for breach of contract, quantum meruit
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`recovery of the market value of services rendered, and attorneys’ fees and costs [Dkts. 1; 31].
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`Plaintiff’s claims arise out of Defendant’s alleged failure to pay Plaintiff for “steel detailing
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`services” he provided. Defendant is alleged to have caused significant delays throughout the
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`ORDER – Page 1
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`project and often changed deadlines: Plaintiff in essence alleges that performance under the
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`contract became a moving target. Plaintiff asserts Defendant paid only $28,710.00 of Plaintiff’s
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`first bill (for $31,300.00) and has yet to pay Plaintiff’s second bill (for $27,710.00). Plaintiff
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`claims $126,280.00 remains unpaid.1 Plaintiff proffers Kerri Olsen’s expert report (the “Olsen
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`Expert Report”) [Dkt. 41, Ex. A] in support of his allegations that Plaintiff substantially performed
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`under the contract and the value of Plaintiff’s services. Plaintiff also proffers Olsen’s rebuttal
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`report (“Rebuttal Report”) [Dkt. 48, Ex. A] (collectively, “Olsen’s Reports”) directed at each of
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`Defendant’s seven experts, namely Lyle Charles, Don Grigg, Bobbi Fletchall, Dan Canda, Brian
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`Aubert, Kevin Rake, and John Haas.
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`Defendant moved to strike Olsen’s Expert Report on December 12, 2016 [Dkt. 41]
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`(“Motion to Strike Expert Report”). Plaintiff filed a Response on December 22, 2016 [Dkt. 44],
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`and Defendant a reply on March 31, 2017 [Dkt. 52].
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`On February 16, 2017, Defendant also moved to strike Olsen’s Rebuttal Report [Dkt. 48]
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`(“Motion to Strike Rebuttal Report”). Plaintiff filed a Response on March 6, 2017 [Dkt. 51], and
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`on March 13, 2017, Defendant filed a Reply [Dkt. 52]. Thereafter, on March 31, 2017, Plaintiff
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`filed a Surreply [Dkt. 55].
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`On March 30, 2017, Defendant requested a hearing on the Motions [see Dkt. 53]. The
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`Court held the hearing (“Hearing”) on April 12, 2017, at which each Party proffered additional
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`arguments and/or evidence [Dkt. 58].2 Olsen testified at Hearing regarding her methodology in
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`compiling the Expert Report and Rebuttal Report.
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`1 Plaintiff amended his Complaint to add a claim for $5,850.00 related to a separate project. This added claim has no
`bearing on the Court’s analysis herein.
`2 Specifically, Plaintiff proffered a binder containing copies of the materials Olsen considered in compiling her Expert
`Report, which Plaintiff also timely provided to Defendant alongside Olsen’s Expert Report [Dkt. 58, Plaintiff’s Exs.
`1-2], and Defendant proffered indices to its motion and case law binders that Defendant provided to the Court at
`Hearing [Dkt. 58, Ex. 1].
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`ORDER – Page 2
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`Defendant seeks to strike each of Olsen’s Expert Report and her Rebuttal Report in their
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`entirety as well as any testimony she may give at trial, arguing the Reports do not comply with
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`Federal Rule of Civil Procedure 26 and that, even if they did, the Court should strike the Reports
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`because Olsen’s opinions do not pass muster under Federal Rule of Evidence 702. Defendant
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`argues Olsen’s Reports and potential testimony lack basis in evidence, are conclusory and
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`speculative, and provide no rationale based on any identifiable methodology. Defendant also
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`asserts the evidence on which Olsen does rely, namely three depositions, does not support her
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`conclusions, and that she improperly attempts to opine as to subjects for which she has no
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`expertise. Plaintiff contends in response that Olsen bases her reports and potential testimony on
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`her review of the contract documents produced. Plaintiff further asserts Olsen’s curriculum vitae
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`demonstrates her qualifications to opine on questions of document control and/or project
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`management in steel detailing and fabricating cases, given her years of experience and scholarship
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`in those fields. Plaintiff claims Olsen’s Reports suffice to permit her to opine as to (1) whether
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`Plaintiff substantially performed under the contracts at issue and (2) the value of Plaintiff’s
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`services as rendered. Defendant counters that, even if Olsen’s Reports were limited to these two
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`issues, Olsen still fails to sufficiently connect the dots between her purported methodology, the
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`facts, and her conclusions.
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`LEGAL STANDARD
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`The Federal Rules of Civil Procedure set forth the procedures litigants must follow in
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`designating expert witnesses. Rule 26(a)(2)(B) provides in pertinent part:
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`Witnesses Who Must Provide a Written Report. Unless otherwise stipulated or
`ordered by the court, this disclosure must be accompanied by a written report—
`prepared and signed by the witness—if the witness is one retained or specially
`employed to provide expert testimony in the case . . . The report must contain:
`(i) a complete statement of all opinions the witness will express and the basis and
`reasons for them;
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`ORDER – Page 3
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`(ii) the facts or data considered by the witness in forming them;
`(iii) any exhibits that will be used to summarize or support them;
`(iv) the witness’s qualifications, including a list of all publications authored in the
`previous 10 years;
`(v) a list of all other cases in which, during the previous 4 years, the witness testified
`as an expert at trial or by deposition; and
`(vi) a statement of the compensation to be paid for the study and testimony in the
`case.
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`In the Fifth Circuit, an expert report must be “detailed and complete” when submitted under Rule
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`26(a)(2)(B) to “avoid the disclosure of ‘sketchy and vague’ expert information.” Sierra Club,
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`Lone Star Chapter v. Cedar Point Oil Co., 73 F.3d 546, 571 (5th Cir. 1996). Expert reports that
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`do not provide the basis and reasons for the stated opinions, or that refer to the basis for the
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`opinions only in vague terms, are insufficient under Rule 26(a)(2)(B). See id. “To satisfy Federal
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`Rule of Civil Procedure 26(a)(2)(B), the report must provide the substantive rationale in detail
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`with respect to the basis and reasons for the proffered opinions. It must explain factually why and
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`how the witness has reached them.” Hilt v. SFC Inc., 170 F.R.D. 182, 185 (D. Kan. 1997), cited
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`favorably in Broxterman v. State Farm Lloyds, No. 4:14-CV-661, 2015 WL 11072132, at *2 (E.D.
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`Tex. Oct. 19, 2015) (Mazzant, J.). This requirement allows parties to prepare effectively for cross
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`examination of expert witnesses and, if necessary, to arrange for testimony by additional expert
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`witnesses. FED. R. CIV. P. 26(a)(2)(B) advisory committee’s note to 1993 amendments.
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`Under Rule 37(c), “[i]f a party fails to provide information or identify a witness as required
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`by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence
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`on a motion, at a hearing, or at a trial unless the failure was substantially justified or harmless.”
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`See Torres v. City of San Antonio, No. SA:14-CV-555-DAE, 2014 WL 7339122, at *1 (W.D. Tex.
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`Dec. 23, 2014). Indeed, the “sanction of exclusion is automatic and mandatory unless the
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`sanctioned party can show that its violation of Rule 26(a) was either justified or harmless.” Id.
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`But see FED. R. CIV. P. 37(c)(1) (providing the district court authority to order alternative sanctions
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`ORDER – Page 4
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`in addition to or instead of exclusion, such as costs or attorney’s fees). “The determination of
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`whether a Rule 26(a) violation is justified or harmless is entrusted to the broad discretion of the
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`district court.” Id. When evaluating whether a violation of Rule 26 is harmless for purposes of
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`Rule 37(c)(1), the court looks to four factors: (1) the explanation for the failure to disclose; (2) the
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`importance of the testimony or evidence; (3) potential prejudice to the opposing party in allowing
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`the testimony or evidence; and (4) the possibility of a continuance to cure such prejudice. Id.; see
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`also Hamburger v. State Farm Mut. Auto Ins. Co., 361 F.3d 875, 883 (5th Cir. 2004). In
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`conducting this analysis, the Court remains mindful that Rule 26 exists “to prevent unfair surprise
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`at trial and to permit the opposing party to prepare for rebuttal reports, to depose the expert in
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`advance of trial, and to prepare for cross-examination.” Payne v. Brayton, No. 4:15-CV-809, 2017
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`WL 194210, at *3 (E.D. Tex. Jan. 18, 2017).
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`Even if a Court determines an expert’s report meets the Rule 26(a) requirements, the Court
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`has an obligation to act as “gatekeeper” to ensure testimony from a qualified expert is both reliable
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`and relevant. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592-93 (1993); Pipitone v.
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`Biomatrix, Inc., 288 F.3d 239, 243-44 (5th Cir. 2002). The proponent must establish relevance,
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`by “demonstrat[ing] that the expert’s reasoning or methodology can be properly applied to the
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`facts in issue[,]” and reliability, by showing the “expert opinion . . . [is] more than unsupported
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`speculation or subjective belief.” Johnson v. Arkema, Inc., 685 F.3d 452, 459 (5th Cir. 2012). The
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`proponent must make this showing by preponderance of the evidence. Moore v. Ashland Chem.,
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`Inc., 151 F.3d 269, 276 (5th Cir. 1998). A “lack of reliable support may render [expert opinion]
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`more prejudicial than probative” in certain circumstances. Viterbo v. Dow Chem. Co., 826 F.2d
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`420, 422 (5th Cir. 1987) (citing Barrel of Fun, Inc. v. State Farm Fire & Cas. Co., 739 F.2d 1028,
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`1035 (5th Cir. 1984)). Importantly, however, the Court shall not judge the expert’s credibility, as
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`ORDER – Page 5
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`“the trial court’s role as gatekeeper is not intended to serve as a replacement for the adversarial
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`system.” United States v. 14.38 Acres of Land Situated in Leflore Cty., 80 F.3d 1074, 1078 (5th
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`Cir. 1996). But a court must determine a witness “is qualified as an expert by knowledge, skill,
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`experience, training, or education” as to the areas for which the party proffers the expert’s
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`testimony. FED. R. EVID. 702.
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`ANALYSIS
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`Defendant objects to each of Olsen’s Expert Report [Dkt. 41, Ex. 2] and her Rebuttal
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`Report [Dkt.48, Ex. 1]. Defendant challenges the Expert Report (1) for failure to comply with
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`Rule 26(a) requirements and (2) for failure to comply with the federal evidentiary requirement of
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`reliability [Dkt. 41]. Defendant challenges the Rebuttal Report for failure to comply with federal
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`evidentiary requirement of reliability and, in some instances, of qualification [Dkt. 48]. The Court
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`first addresses Defendant’s objection to Olsen’s Expert Report.
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`I.
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`Expert Report
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`Defendant urges the Court to strike Olsen’s Expert Report in its entirety [Dkt. 41], arguing
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`the Expert Report does not comply with Federal Rule of Civil Procedure 26 and that, even if it did,
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`Olsen’s methodology remains suspect.
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`A.
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`Federal Rule of Civil Procedure 26(a)(2)(B)
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`As noted supra, a Court must examine an expert report for compliance with
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`Rule 26(a)(2)(B), which requires that the expert provide six specific pieces of information: (1) “a
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`complete statement of all opinions the witness will express and the basis and reasons for them”;
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`(2) “the facts or data considered by the witness in forming them”; (3) “any exhibits that will be
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`used to summarize or support them”; (4) “the witness’s qualifications, including a list of all
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`publications authored in the previous 10 years”; (5) “a list of all other cases in which, during the
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`ORDER – Page 6
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`previous 4 years, the witness testified as an expert at trial or by deposition”; and (6) “a statement
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`of the compensation to be paid for the study and testimony in the case.” FED. R. CIV. P.
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`26(a)(2)(B).3 To the extent Defendant challenges the Expert Report for failure to comply with
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`Rule 26(a)(2)(B)’s basic form requirements, the Court finds Olsen’s Expert Report meets the basic
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`Rule 26(a)(2)(B) form requirements [see Dkt. 42, Ex. A]. Olsen provides a complete statement on
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`the first page of the Expert Report regarding her opinions on the value of the services Plaintiff
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`rendered, as well as the extent to which Plaintiff performed. She also explains on the same page
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`that she reviewed “the Plaintiff’s Original Complaint” and “the documents provided for review”
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`in reaching her conclusion about the value and the extent of services rendered and continues for
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`eleven additional pages to discuss how she reaches these conclusions. See FED. R. CIV. P.
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`26(a)(2)(B)(i)-(ii). In addition, Plaintiff provided copies at Hearing of the documents on which
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`Olsen relied [Dkt. 58, Plaintiff’s Exs. 1-2] and Olsen’s curriculum vitae [Dkt. 44 at 7-10], each of
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`which provides information regarding Olsen’s qualifications, her recent publications and
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`employment as an expert, and Plaintiff’s employment of her for the instant case. See FED. R. CIV.
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`P. 26(a)(2)(B)(iv)-(vi). Plaintiff’s proffer included the contract documents Olsen examined, as
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`well as the schematics for the project Defendant contracted with Plaintiff to help create. See FED.
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`R. CIV. P. 26(a)(2)(B)(iii). At Hearing, Defendant stipulated to receiving these documents
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`alongside Olsen’s Expert Report.
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`3 Defendant argues the Expert Report does not comply with Rule 26(a)(2)(B) for various reasons related to the Expert
`Report’s substance that the Court finds more appropriately addressed under the Federal Rules of Evidence governing
`expert opinion [Dkt. 41]. Defendant makes four specific arguments about analytical gaps it perceives in Olsen’s
`Expert Report [see Dkt. 41 at 7-10]. These arguments relate not to the Expert Report’s compliance with Rule
`26(a)(2)(B), which prescribes form (procedural) requirements for an expert’s report, but instead to Olsen’s compliance
`with the Federal Rules of Evidence, which prescribe substance requirements for expert opinions. See, e.g., Amaya v.
`City of San Antonio, No. 5:12-CV-00574-DAE, 2014 WL 3919569, at *2 (W.D. Tex. Aug. 11, 2014) (“Expert witness
`testimony is governed by Federal Rule of Civil Procedure 26(a)(2) in unison with Federal Rule of Evidence 702, 703,
`and 705. Rule 26(a)(2) outlines the procedural requirements of disclosure, while Rules 702, 703, and 705 address the
`qualifications of the expert witness and the substance of the testimony.”).
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`ORDER – Page 7
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`Further, the Expert Report uses no uncertain “vague terms” in providing bases for its
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`conclusions: it refers specifically to American Institute of Steel Construction (“AISC”) provisional
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`guidelines, Olsen’s own experience, and the facts of the instant case (as Olsen understands them)
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`from deposition testimony of certain of Defendant’s employees [Dkt. 41, Ex. A]. Although
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`Olsen’s Expert Report sets forth the “why and how” of her conclusions in a somewhat jumbled,
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`inarticulate manner, the Court cannot find that the Expert Report lacks explanation of Olsen’s
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`rationale. Moreover, the Court finds the information within the Expert Report sufficient to permit
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`Defendant effectively to prepare for cross examination of Olsen at trial and to arrange for
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`testimony by its own expert witnesses in rebuttal. In sum, Olsen’s Expert Report complies with
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`Rule 26(a)(2)(B)’s requirements.
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`B.
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`Federal Rule of Evidence 702 (Olsen’s Qualifications and Reliability)
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`1.
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`Qualifications
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`As an initial matter, the Court notes the Parties agreed at Hearing that Olsen has the
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`requisite qualifications to opine as to steel detailing document control and project management,
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`and, accordingly, to Plaintiff’s performance and the value of that performance. In reviewing
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`Olsen’s curriculum vitae, the Court concurs she possesses the necessary qualifications for these
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`two topics; and Plaintiff advised at Hearing that she is proffered as an expert for no other topic.
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`Olsen has extensive experience working within the steel detailing industry, has produced
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`scholarship focused on the document control and project management aspects of the industry, and
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`has provided expert testimony on these topics many times before [see Dkt. 44 at 7-10]. The Court
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`finds Olsen bears the requisite qualifications to testify as to Plaintiff’s performance under the steel-
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`detailing contract at issue here and the alleged value of that performance.
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`ORDER – Page 8
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`2.
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`Reliability
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`Reviewing Defendant’s briefing [Dkt. 41] and its arguments at Hearing, the Court discerns
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`Defendant makes three main arguments concerning the reliability of Olsen’s Expert Report. First,
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`Defendant contends Olsen’s Expert Report contains conclusory opinions for which Olsen fails to
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`provide sufficient explanation and support [Dkt. 41 at 7]. Defendant cites Olsen’s summary
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`(located on the first page of her report) as an example, asserting it lacks support and/or fails to
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`explain why the documents Olsen reviewed support the conclusions expressed therein [Dkt. 41 at
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`7]. Second, Defendant asserts Olsen makes factual errors in those few instances she does attempt
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`to connect her conclusions to the facts of the present case. As an example, Defendant claims Olsen
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`assumes on page four of her report that Defendant did not provide Plaintiff certain documents
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`(RFI-001 dated 06/12/2014, ASI-001 dated 06/11/2014, RFI-002 dated 06/10/2014, and ASI-002
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`dated 06/12/2014) when evidence (namely Dkt. 41, Ex. F) shows to the contrary [Dkt. 41 at 7]. In
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`another example, Defendant argues Olsen assumes on pages four through five of her report that
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`Bid Pack #2 was submitted late. Defendant argues this is incorrect and thus Olsen’s conclusion
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`(that starting over would have been the best option) is faulty [Dkt. 41 at 7-8]. Third, Defendant
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`claims Olsen erroneously concludes Defendant caused all of Plaintiff’s issues through contract
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`mismanagement because: (a) she determines based on lack of reference to AISC protocols in
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`depositions of certain of Defendant’s employees that Defendant did not comply with AISC
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`guidelines (even though Plaintiff never requested a 30(b)(6) corporate representative deposition);
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`(b) she determines based on the depositions of (i) Roenne and (ii) Canda, neither of which were
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`designated as 30(b)(6) depositions, that the “company process for a Quality Management System
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`is broken” [Dkt. 41 at 8].
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`ORDER – Page 9
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`Plaintiff argues in response that, though Olsen’s Expert Report is written in industry jargon
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`and accordingly may be difficult in places to understand, it certainly provides sufficient
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`explanation for its conclusions to pass muster under Rule 702. In particular, Plaintiff claims the
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`summary is just that—a condensed conclusion based upon Olsen’s observations made throughout
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`the Expert Report—and that Olsen’s placing the summary at the front of the Expert Report does
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`not alter the fact it relies upon the observations Olsen makes later in the document [Dkt. 44].
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`Plaintiff points to Olsen’s references throughout the Expert Report to the documents she reviewed
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`in reaching her conclusions as well as her detailed exposition of the AISC standards she applied
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`to the facts of this case obtained from her review of the underlying documents [Dkt. 44]. At
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`Hearing, Plaintiff further explained Olsen relied upon thousands of documents in reaching her
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`conclusions expressed in the Expert Report and even references some of those documents in the
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`Expert Report [see also Dkt. 59 (providing a complete list of the documents Olsen considered in
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`compiling the Expert Report)].
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`In determining reliability, a court “focuses on the expert’s methodology, not the
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`conclusions generated by it.” Orthoflex, Inc. v. ThermoTek, Inc., 986 F. Supp. 2d 776, 783
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`(citations and internal quotations omitted) (citing Watkins v. Telsmith, Inc., 121 F.3d 984, 989 (5th
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`Cir. 1997)). The U.S. Supreme Court has characterized this examination as “flexible” and has
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`given district courts broad discretion in tailoring their expert analysis based on the facts of the case
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`in question. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152 (1999) (providing that courts
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`should consider the factors outlined in Daubert for evaluating scientific expert opinion only
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`“where they are reasonable measures of the reliability of expert testimony”). The Daubert factors
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`ask (1) “[w]hether a ‘theory or technique . . . can be (and has been) tested’”; (2) “[w]hether it ‘has
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`been subjected to peer review and publication’”; (3) “[w]hether, in respect to a particular
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`ORDER – Page 10
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`technique, there is a high ‘known or potential rate of error’ and whether there are ‘standards
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`controlling the technique's operation’”; and (4) “[w]hether the theory or technique enjoys ‘general
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`acceptance’ within a ‘relevant scientific community.’” Kumho, 526 U.S. at 149-50 (quoting
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`Daubert, 509 U.S. at 592).4 Courts use such factors to assist in determining whether “there is
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`simply too great an analytical gap between the [basis for the expert opinion] and the opinion
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`proffered,” such that the court may consider the opinions expressed within the report unreliable.
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`Id. (internal quotations omitted) (quoting Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997), and
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`citing Johnson, 685 F.3d at 460-61). Still, “[a]s a general rule, questions relating to the bases and
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`sources of an expert’s opinion affect the weight to be assigned that opinion rather than its
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`admissibility and should be left for the jury’s consideration” where possible. Viterbo, 826 F.2d at
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`422.
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`The U.S. Supreme Court developed the Daubert factors in a case concerning expert
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`scientific opinion and methodology, but expressly held that courts should approach the reliability
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`determination with flexibility—paying heed to particular type of expert opinion presented for
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`evaluation and the set of facts presented in the case as a whole. See 509 U.S. at 594-95. In the
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`present case, Olsen provides opinions relating to the performance and value of a contract in a
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`particular type of industry based on her review of contract documents, industry standards, and her
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`experience. United States v. Vicknair, No. CRIM.A.03-16, 2005 WL 1400443, at *5-6 (E.D. La.
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`June 2, 2005) (citing Guy v. Crown Equip. Corp., 394 F.3d 320, 325 (5th Cir. 2004)) (noting
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`“[s]ome types of expert testimony will not rely on anything like a scientific method, and so will
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`have to be evaluated by reference to other standard principles attendant to the particular area of
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`expertise” and determining expert’s consideration of applicable standards and laws in conjunction
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`4 Neither Party advocates for or against the Court’s applying the Daubert factors (or any other set of factors) in
`determining whether Olsen’s opinion is reliable.
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`ORDER – Page 11
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`with the facts of the case and in light of the expert’s own experiences a reliable methodology).
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`Other courts evaluating expert opinions like those presented here have considered the following
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`factors:
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`(1) whether the expert identified the materials relied upon and personally examined
`the file underlying the case; (2) whether the expert sufficiently explained why he
`or she reached an opinion; (3) whether the expert cited other sources relied upon by
`attorneys such as applicable statutes, treatises, or publications by professional
`organizations; or (4) whether the expert demonstrated that his opinion is accepted
`by his peers.
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`United States v. Gallion, 257 F.R.D. 141, 149 (E.D. Ky. 2009) (quoting McDevitt v. Guenther, 522
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`F. Supp. 2d 1272, 1291 (D. Haw. 2007)). The Court finds these factors useful guidelines in the
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`instant case.
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`In the instant case, the Expert Report does not suffer from too great an analytical gap
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`between Olsen’s opinions and the bases for same to disqualify Olsen from testifying. The Expert
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`Report begins with reference to those industry standards Olsen believes are relevant and explains
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`why Olsen believes such standards bear on the present case [see Dkt. 41, Ex. A at 3-5].
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`Specifically, Olsen begins by explaining that steel detailers work under steel fabricators, who in
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`turn work under a general contractor in construction projects. She notes that, under AISC
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`guidelines, these entities each work with one another through documents, usually contracts,
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`providing crucial details for the construction work and “critical paths” each entity must follow so
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`that the work each entity does at each level of the process comes together cohesively to form a
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`finished project. Olsen further explains the general contractor usually provides all of these
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`documents (at least the initial workups) to the steel fabricator(s) and detailer(s) before the project
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`even begins, in the bidding phase. In the instant case, the Parties (and Olsen) refer to those initial
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`documents as “Bid Packs,” and in this case the Parties exchanged two of them, Bid Pack #1 (dated
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`June 19, 2014, according to an email between Switzky and Plaintiff) and Bid Pack #2 (dated
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`ORDER – Page 12
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`

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`Case 4:15-cv-00585-CAN Document 60 Filed 08/01/17 Page 13 of 25 PageID #: 1084
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`September 24, 2016, according to the Expert Report) [see Dkt. 41, Ex. A at 4, Ex. F]. Olsen
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`expresses that confusion about the Bid Packs, particularly about documents that Olsen asserts
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`Defendant initially omitted from Bid Pack #2 but later provided, resulted in Plaintiff’s alleged
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`delay in complying with Defendant’s demands [see Dkt. 41, Ex. A at 4-5]. She opines from her
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`review of the documents “that the work was not managed according to the AISC Certification
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`Program requirements” and that, accordingly, Plaintiff rendered performance as best as possible
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`given the confusion [see Dkt. 41, Ex. A]. Olsen then goes on to detail specific instances of what
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`she perceives as defective mismanagement and document control on Defendant’s part throughout
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`Plaintiff’s attempted performance, citing AISC standards and deposition testimony of three of
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`Defendant’s employees [Dkt. 41, Ex. A at 6-12].
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`Reviewing the Expert Report generally, the Court concludes as follows: Olsen references
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`specific industry standards and cites to what she considers relevant portions of the evidence and
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`contracts exchanged between the Parties; Olsen explains the “how and why” of her conclusions by
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`applying those industry standards to specific facts in the case; Olsen notes the referenced AISC
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`standards apply in this case and that she (and others) have applied these standards in similar cases
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`before; and Olsen’s publications provided alongside the Expert Report show that, in general, peers
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`accept her opinions about document control and/or project management in the steel detailing
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`industry [see generally Dkt. 58, Plaintiff’s Ex. 1 at 1-12 (Expert Report), 14-59 & 83-168
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`(deposition testimony, emails, and contract documents), 175-218 (Olsen’s previous publications),
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`61-79 & 220-279 (industry standards Olsen considers in the Expert Report)]. Compare Dixon v.
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`Int’l Harvester Co., 754 F.2d 573, 580 (5th Cir. 1985) (determining trial court erroneously
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`excluded expert testimony about a product that allegedly caused damage where the expert had
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`extensive experience in the field, “had in fact inspected the design” of the product, as well as “a
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`ORDER – Page 13
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`

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`Case 4:15-cv-00585-CAN Document 60 Filed 08/01/17 Page 14 of 25 PageID #: 1085
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`set of blueprints of the [product], and viewed photographs showing the condition of the [product]
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`at the time of the accident”), and Stetson Petroleum Corp. v. Trident Steel Corp., No. 4:14-CV-
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`43, 2015 WL 6745958, at *4 (E.D. Tex. Nov. 4, 2015) (finding expert sufficiently reliable where
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`the expert “list[ed] the documents that he reviewed in reaching his conclusion” and “relied on
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`recognized publications and texts when creating his opinion”), with Lewis v. Par. Of Terrebonne,
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`894 F.2d at 146 (rejecting expert testimony where based upon “two meager record citations”), and
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`Hilt, 170 F.R.D. at 185 (rejecting expert opinion where the report said only that the expert’s
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`opinions “[we]re based upon the education, training, and experience of [the expert] and her reliance
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`on two depositions”).
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`Defendant also asserts Olsen recites erroneous facts in the Expert Report regarding
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`documents she believes were missing from the Bid Packs and the proper method for remedying
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`the alleged untimely delivery of Bid Pack #2. Defendant claims that an email from Switzky to
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`Plaintiff shows Olsen erroneously determined Plaintiff did not receive the entirety of Bid Pack #1
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`in a timely manner and that Plaintiff’s own representations contrary to Olsen’s conclusion
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`regarding the appropriate fix for the ongoing issues between the Parties demonstrate that at least
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`part of Olsen’s Expert Report contains analytical gaps [Dkt. 41 at 7-8]. The Court finds neither
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`rationale convincing.
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`Olsen opines in the Expert Report that certain documents, namely “RFI-001 dated 6-12-
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`2014, ASI-001 dated 6-11-2014, RFI-002 dated 6-10-2014, and ASI-002 dated 6-12-2014” may
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`have been omitted from Bid Pack #1 when Plaintiff received it. Specifically, Olsen notes “[i]t is
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`not apparent that these documents were provided to the steel detailer [Plaintiff] at the time of bid
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`or award as they are not listed at the steel detailers [sic] quote” [Dkt. 41, Ex. A at 4]. Defendant
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`asserts an email from Switzky to Plaintiff date July 2, 2014, noting Switzky “[was] attaching the
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`ORDER – Page 14
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`

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`Case 4:15-cv-00585-CAN Document 60 Filed 08/01/17 Page 15 of 25 PageID #: 1086
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`contract documents and HME scope for your use” and referencing “New Laramie High School—
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`Core Trade Bid Pac 1 (bids 6-19-14).zip (656.5 MB)” [Dkt. 41, Ex. F] shows Olsen’s factual
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`statement regarding such documents is erroneous [see Dkt. 41 at 7]. The email, however,
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`references Bid Pack #1 only generally—it does not necessarily rebut Olsen’s statement that certain
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`documents within the Bid Pack were omitted. Likewise, Olsen claims in the Expert Report that
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`“[the] release of delayed contract documents (ASI #3, BP2) is best remedied by starting over[,]”
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`while Plaintiff indicated in an email to Canda dated October 6, 2014 that, despite the purported
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`late receipt of Bid Pack #2, Plaintiff could deliver under the contract with “137.5 man-hours” for
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`Bid Pack #2 and “160