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L.W. Matteson, Inc. v. Sevenson Environmental Services, Inc.

United States District Court, Second Circuit

May 23, 2013

L.W. MATTESON, INC., Plaintiff,
v.
SEVENSON ENVIRONMENTAL SERVICES, INC., Defendant.

DECISION AND ORDER

H. KENNETH SCHROEDER, Jr., Magistrate Judge.

In accordance with 28 U.S.C. ยง 636(c), the parties have consented to have the undersigned conduct all further proceedings in this case, including entry of final judgment. Dkt. #100.

Currently before the Court is plaintiff L.W. Matteson, Inc.'s ("Matteson's"), fourth motion in limine seeking to exclude evidence or argument from defendant Sevenson Environmental Services, Inc.'s ("Sevenson's"), expert witnesses, Timothy Harrington, P.E. and Michael Pisani, P.E. on the ground that their original expert disclosure relates solely to issues of productivity, which are not relevant to the issues remaining in this matter following the Court's summary judgment decision, and to exclude evidence or argument from Sevenson's expert witness, Timothy Donegan, P.E., concerning productivity. Dkt. #122. Matteson also seeks to exclude evidence or testimony contained in the experts' supplemental expert reports in accordance with this Court's Decision and Order (Dkt. #87), denying Sevenson's motion to supplement their expert disclosure. Dkt. #122.

Sevenson responds that it does not intend to call Michael Pisani, P.E. at trial and agrees that the denial of its request to supplement its original expert witness reports precludes reference by its expert witnesses of information which was not contained in their original reports. Dkt. #129. With respect to Mr. Donegan, Sevenson states that it will not offer testimony that most rental contracts have a minimal production rate clause. Dkt. #129. With respect to Mr. Harrington, Sevenson states that it will not offer testimony regarding the crack in the hull of the dredge. Dkt. #129, p.14. However, Sevenson argues that testimony from Mr. Donegan and Mr. Harrington, consistent with their original expert reports, "will assist the jury in understanding the scientific methodologies employed in dredging, and is relevant to the primary disputed fact of the case - that Matteson was not pumping material during... all times in which it billed Sevenson at the 100% rate." Dkt. #129, pp.12-13.

Mr. Donegan's expert report sets forth the following opinions:

1. Matteson should have considered an employee monitoring outflow at the rim ditch when the density meter was not operating properly during dredging.
2. Matteson's production decreased as a result of a problem with the operation of the port spud on the Little Rock dredge.
3. Over a 15-day period from 8/17/09 through 8/31/09, the Little Rock dredge averaged approximately 5, 650 cubic yards of daily production of fly ash on 11 days of production. The Little Rock had no production on the remaining four days. The basis of this opinion is an inspection and review of data from WinOPS software program aboard the Little Rock on September 1 and 2, 2009. WinOPS is a dredging software that is used for providing positional information, data logging of dredging operations. The WinOPS position (using a global positioning system) output was overlaid with the hydrographic survey performed by Sevenson (before dredge and after dredge) to determine where the dredge was on a particular day and how many cubic yards were removed that day.
4. Review of the WinOPS data logged during the period of 8/26/09 to 9/2/09 during my site visit on September 1 and 2, 2009 indicates that the density meter on the Little Rock was either not working or the dredge was pumping clean water. The WinOPS system logged position and density of the slurry in the pipeline. If the software had logged a "1" then the material in the pipeline is just water. If the output from the density meter is greater than 1, then it is pumping water.[1]

Dkt. #79-2, p.2.

Sevenson argues that Mr. Donegan's opinion that Matteson should place an employee at the rim ditch to monitor outflow goes to Matteson's capacity to determine whether the pump was moving material rather than water when it was billing 100% time. Dkt. #129, p.13. Sevenson also argues that Donegan's opinion that Matteson's production decreased as a result of a problem with the operation of the port spud goes to whether Matteson spent more time than necessary repositioning the dredge, thereby inflating the amount of 70% pay time. Dkt. #129, p.13. Finally, Sevenson argues that Mr. Donegan's opinion regarding the average cubic yards of daily production and the density meter recording disputes Matteson's claim that it was moving material through the dredge pipe for the amount of time claimed in the dredge logs because if Matteson was moving material through the pipe, productivity would have been higher than the daily average. Dkt. #129, p.14.

Matteson replies that there is no evidence that Sevenson ever requested that Matteson place an employee at the rim ditch or that any such employee could have visually detected fly ash with a density of as little as 1.001 and notes that Sevenson placed one of its own employees at the rim ditch. Dkt. #138, pp.2-3. Matteson also replies that the contract did not limit the amount of 70% pay time and that Sevenson's remedy for displeasure with Matteson's efficiency was to terminate the contract. Dkt. #138, pp.3-4. Matteson replies that Mr. Donegan's opinion as to the amount of material dredged is irrelevant and that his opinion regarding the density meter undermines Sevenson's contention that the density meter was working properly and that WinOPS was properly recording data from the density meter. Dkt. #138, p.4.

Mr. Harrington's expert report sets forth the following opinions:

1. The unusable condition of the port spud on the Little Rock dredge negatively impacted dredging ...

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