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Secured Systems Technology, Inc v. Frank Lill & Son

December 19, 2012

SECURED SYSTEMS TECHNOLOGY, INC., PLAINTIFF
v.
FRANK LILL & SON, INC., DEFENDANT
FRANK LILL & SON, INC., THIRD-PARTY PLAINTIFF
v.
SHARED SYSTEMS TECHNOLOGY, INC. THIRD-PARTY DEFENDANT.



The opinion of the court was delivered by: Charles J. Siragusa United States District Judge

DECISION AND ORDER

INTRODUCTION

This action involves a dispute arising from a construction contract. Now before the Court is Defendant's motion (Docket No. [#95]) to preclude the testimony of Plaintiff's and Counterclaim-Defendant's expert w itness, R. Michael Loew ke. The application is granted.

BACKGROUND

The reader is presumed to be familiar w ith the Court' s prior Decisions and Orders in this action. See, Docket Nos. [#73, 85, 114]. This action arises from disputes over construction w ork that w as performed at the Bridgeport Harbor Station in Connecticut. Stone & Webster Construction, Inc. (" Stone & Webster" ) w as the prime contractor, and Defendant, Frank Lill & Son, Inc. (" Lill" ), w as a subcontractor. On or about January 9, 2007, Plaintiff Secured Systems Technology, Inc. (" Secured" ) and Lill entered a subcontract, pursuant to w hich Secured agreed to install insulation at the project, in exchange for $3,101,725.00.

Secured maintains that it performed the w ork required by the subcontract, as w ell as additional w ork that Lill requested, but Lill refused to pay for the w ork. Additionally, Secured contends that Lill interfered w ith its w ork in various w ays. Specifically, Secured alleges that Lill refused to provide necessary w ork space and electrical pow er, issued change orders and then refused to make accommodations for Secured to perform the w ork, refused to make timely approvals of materials, and forced Secured to install insulation on duct w ork that w as already erected and elevated, rather than on the ground as per the subcontract and common industry practice. Secured further maintains that Lill intentionally w ithheld payments in order to harm Secured. In the Amended Complaint, Secured asserts claims for breach of contract, breach of implied covenant of good faith and fair dealing, unjust enrichment, quantum meruit, fraud, and violation of Connecticut General Statute § 42-158j (providing for timely payment of contractors, subcontractors and suppliers).

Lill denies those allegations, and contends that Secured abandoned the project before completing its w ork, performed some w ork improperly and failed to pay its subcontractors and suppliers. Lill also maintains that Secured failed to comply w ith the subcontract's claims procedures and dispute resolution procedures. Lill asserts counterclaims against Secured, and against Counterclaim-Defendant Shared Systems Technology, Inc. (" Shared" ), w hich Lill maintains is Secured's alter ego.

Shared has asserted its ow n counterclaims against Lill, asserting the same claims raised by Secured, namely: Breach of contract, breach of implied covenant of good faith and fair dealing, unjust enrichment, quantum meruit, fraud and violation of Connecticut General Statute § 42-158j. In addition, Shared asserts counterclaims for " intentional interference w ith contract," " intentional interference w ith prospective economic and contractual advantage" and " third party beneficiary" breach of contract.

During pretrial discovery, Secured and Lill obtained reports from their respective expert w itnesses. Secured's expert is Edw ard Mislavsky (" Mislavsky" ), w ho prepared a report dated July 14, 2009. (See, Mislavsky Report [#99-8]). Based on his detailed review of the record, Mislavsky offers a number of opinions, including the follow ing:

1) Lill did not properly manage the project w ork schedule, w hich caused Secured to incur damages for lost productivity and unabsorbed overhead; 2) Lill obstructed Secured's ability to perform its w ork, by failing to release ductw ork to be insulated, installing ductw ork prior to it being insulated and failing to provide Secured w ith an appropriate pow er source and w ork area; 3) Lill ow es Secured approximately $5 million in damages.

Lill's expert is Christopher Beirise (" Beirise" ) of the Kenrich Group, LLC. In rebuttal to Mislavsky's report, Beirise offers opinions including the follow ing: 1) it w as not Lill's responsibility to create a project schedule; 2) many of the delays w ith the project w ere caused by parties other than Lill, including Secured; 3) Mislavsky has not show n that Secured sustained damages for lost productivity and unabsorbed overhead; 4) Lill paid Secured's invoices; 5) Lill incurred damages as a result of Secured actions, in the amount of $842,395.40; and 6) Mislavsky's calculations of Secured's damages are incorrect, and overstate Secured's damages by approximately $1.7 million.

Shared also obtained a report from its expert, R. Michael Loew ke (" Loew ke" ). See, Docket Nos. [#95-4, #95-5]. Loew ke indicates that his report is based on his review of the record and the reports by Mislavsky and Beirise. Loew ke's report states that it w ill " provide a different focus on the legitimacy of the theories and opinions expressed" by Mislavsky. More specifically, Loew ke states that he has review ed Beirise's " 'methods' of calculating damages and costs," and that Mislavsky's opinion is flaw ed and " disingenuous at best." See, [#95-5] at pp. 5-6, 3. Loew ke offers opinions including the follow ing: 1) the delays on the job w ere beyond the control of Lill and Secured; 2) both Lill and Secured suffered severe losses in productivity due to the delays; 3) Lill initially attempted to obtain payments from Stone & Webster to compensate Secured for the delays, but later discontinued those efforts; 4) Lill received payment from Stone & Webster, but w ithheld payment from Secured; 5) Lill directed Secured to perform additional w ork, but did not prepare the proper change orders; 6) Lill failed to provide Secured w ith a proper w ork area and equipment; 7) Secured completed its scope of w ork under the contract; 8) Beirise did not properly calculate Lill's alleged damages; 9) Beirise incorrectly asserts that Secured never presented a claim for delay costs; and 10) Secured is entitled to $4.8 million in damages, exclusive of interest and consequential damages.

Follow ing the completion of discovery, Secured and Lill each filed motions for partial summary judgment. Lill also subsequently filed the subject motion to preclude Loew ke's expert testimony, on the grounds that it " attempt[s] to usurp the role of the jury in this matter, [and] also w ill not assist the ...


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