Virginia Lawyers Weekly VA Lawyers Weekly
Where one party to a government contractor dispute moved to exclude two experts proposed by the other party, its motions were denied. The experts’ testimony was admissible, not irrelevant and not inherently unreliable.
Background
This case concerns a dispute between BAE Systems Ordnance Systems Inc. and Fluor Federal Solutions LLC regarding a subcontract for the construction of a new natural-gas-fired boiler facility at the Radford Army Ammunition Plant. Pending before the court are two motions to exclude expert testimony and five motions in limine.
Mark LoManto
Fluor first moves to exclude the testimony of Mark LoManto, who BAE has proffered to evaluate whether Fluor’s change proposals adhered to the instructions and formats prescribed in Federal Acquisition Regulation § 15.408 as well as whether the costs that Fluor classified as base scope work costs in the change proposals were solely attributable to the project change.
Fluor first argues that, because interpreting and applying § 15.408 to the facts of this case call for a legal opinion which LoManto is not qualified to render and which the court “needs no expert assistance in rendering,” LoManto’s testimony is inadmissible. The court disagrees.
Fluor next argues that this court has already ruled on the issue of whether the subcontract calls for change proposals that are compliant with § 15.408 and concluded that it does not. Fluor is mistaken as to the import of the court’s holding.
Alex Staley
Fluor moves in limine to exclude the testimony of Alex Staley, who has been proffered by BAE to express an opinion as to which parties are responsible for what amount of delay.
Fluor and BAE’s experts evidently disagree on the appropriate baseline schedule, and presumably each will testify as to the reasons why their selection more reliably and accurately models the allocation of delay. But that is not a basis to exclude Staley opinions. His selection of the May schedule is not inherently unreliable, and the court, as factfinder, is plenty able to determine which schedule more closely matches the facts.
Pre-contract actions
BAE moves in limine to limit evidence of BAE’s dealings with the Army before it executed the subcontract with Fluor. BAE first argues this evidence is irrelevant to Fluor’s breach-of-contract claim because pre-contract actions cannot be used to support a claim for breach of the implied covenant of good faith and fair dealing. However, Fluor can introduce evidence of BAE’s pre-contract conduct as necessary context for BAE’s conduct after execution of the contract.
Project change notices
BAE ask the court to preclude Fluor from submitting the narrative sections of project change notices, or PCNs, as evidence of the alleged facts contained in them. BAE argues that, because the PCNs were allegedly written many months after completion of the work described in the narratives by someone who allegedly lacks personal knowledge, Fluor cannot claim the business records exception to the hearsay rule. At present, the court cannot conclude that the PCN narratives definitively are not business records under Rule 803(6). BAE’s motion in limine to exclude the narratives will be denied.
Damages testimony
Fluor argues that BAE has no fact or expert witness who can opine on its financial damages. But BAE fact witnesses can testify about the cause, of BAE’s alleged damages. And while Fluor argues that damages testimony from Staley would go beyond the scope of Staley’s report, the report belies that characterization.
Zapata Group errors
Fluor moves the court to exclude any lay or expert testimony proffered by BAE intended to establish (1) that alleged errors and omissions by Fluor’s designer, Zapata Group, resulted in alleged cumulative-impact damages or other costs to Fluor and (2) that these lost-productivity or loss-of-efficiency damages are being claimed against BAE in Fluor’s base scope costs or in Fluor’s PCNs.
As to this motion, the parties have agreed to narrow the scope of the issue. Specifically, the parties stipulated that BAE is not prohibited from asking questions during cross-examination related to Zapata’s performance, that performance’s impact on the project and whether Fluor has properly excluded those alleged impacts from its damages. They further stipulated that Fluor’s motion is not addressed to BAE evidence on delay, and that Fluor will address its objections to BAE’s lay and expert testimony regarding delay at trial. Except to the extent of the parties’ stipulations, the court will deny Fluor’s motion in limine.
2017 and 2019 change proposals
Lastly, Fluor moves the court to exclude any testimony and/or presentation of evidence by BAE witnesses regarding (1) any cost reasonableness analysis performed by BAE with regard to Fluor’s August 2017 change proposal submission and (2) any analysis performed by BAE with regard to Fluor’s August 2019 change proposal. This motion is denied.
Pending motions to exclude expert testimony and motions in limine denied.
Fluor Federal Solutions LLC v. BAE Systems Ordnance Systems Inc., Case No. 7:19-cv-00698, Jan. 15, 2023. WDVA at Roanoke (Dillon). VLW 023-3-018. 17 pp.
