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Burbach Aquatics, Inc., As Successor To David F. Burbach v. the City of Elgin

January 18, 2011

BURBACH AQUATICS, INC., AS SUCCESSOR TO DAVID F. BURBACH,
D/B/A/ BURBACH MUNICIPAL & CIVIL ENGINEERING, PLAINTIFF,
v.
THE CITY OF ELGIN, ILLINOIS,
A MUNICIPAL CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER

Before the Court is Plaintiff Burbach Aquatics, Inc.'s Daubert motion seeking to strike the expert report and preclude the trial testimony of Defendant's expert, Daniel T. Nicholas [81]. For the reasons stated below, Plaintiff's motion is granted in part and denied in part.

I. Background

Plaintiff Burbach Aquatics, Inc. ("Plaintiff") is a Wisconsin corporation engaged in business as an architectural and engineering firm specializing in the design of aquatic facilities. The City of Elgin ("Defendant") is a municipal corporation organized and existing under the laws of the State of Illinois and located in Kane County, Illinois.

Plaintiff's predecessor-in-interest, David F. Burbach, d/b/a/ Burbach Municipal and Civil Engineers, entered into a written contract with Defendant on or about March 8, 1995. Pursuant to the contract, Plaintiff agreed to renovate and replace pools and bathhouses in Elgin's Lords Park and Wing Park, and Defendant agreed to pay Plaintiff in exchange. The contract did not identify a specific date by which the projects were to be completed, but it did provide that the "architectural services shall be performed as expeditiously and as consistently with the professional skill and care of the ordinary progress of the work." The contract did not define the terms "expeditiously" or "professional skill and care." Plaintiff alleges that it requested a one-year "extension" of time in order to enable it to apply for and acquire the necessary permits from the Illinois Department of Health, but that Defendant declined the request and sought to proceed on an "expedited" schedule. The project at Wing Park was completed without dispute. The Lords Park project suffered various delays, resulting in the park's pool opening to the public approximately five weeks late. As a result, Defendant has not paid Plaintiff the full amount due under the contract.

Plaintiff brought a one-count complaint against Defendant alleging that Defendant breached the contract by failing to pay Plaintiff for the services that Plaintiff allegedly performed for the Lords Park project. Plaintiff seeks a judgment in the amount of $135,559 plus interest (the compensation for the phase of the project that Defendant argues has been forfeited). Defendant counters that Plaintiff materially breached the contract by failing to substantially perform all of its duties and responsibilities pertaining to the Lords Park project, and therefore is not entitled to full payment of the contract amount. Specifically, Defendant contends that Plaintiff did not substantially perform its duties during the construction phase ("Phase III") of the project, resulting in the five-week delay in the opening of the Lords Park pool.

II. Legal Framework for a Rule 702 Analysis

Federal Rule of Evidence 702 and the Supreme Court's decision in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), provide the legal framework for the admissibility of expert testimony. See United States v. Pansier, 576 F.3d 726, 737 (7th Cir. 2009). Rule 702 permits the admission of expert testimony if "scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue." Fed. R. Evid. 702. Rule 702 requires that the district court act as a "'gatekeeper' that must determine whether proffered expert testimony is reliable and relevant before accepting a witness as an expert." Winters v. Fru-Con Inc., 498 F.3d 734, 741-42 (7th Cir. 2007) (quoting Autotech Tech. Ltd. P'ship v. Automationdirect.com, 471 F.3d 745, 749 (7th Cir. 2006)); see also Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 1337, 147-49 (1999); Daubert, 509 U.S. at 589.

In assessing a motion to exclude testimony under Rule 702, the Court must consider whether the proposed opinion witness (1) is qualified to offer opinion testimony under 702, (2) has employed a reliable methodology, (3) proposes to offer opinions that follow rationally from the application of his "knowledge, skill, experience, training, or education," and (4) presents testimony on a matter that is relevant to the case at hand, and thus helpful to the trier of fact. See Kumho Tire, 526 U.S. at 151-53; Gen Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997); Daubert, 509 U.S. at 589-93; see also Walker v. Soo Line R.R. Co., 208 F.3d 581, 586 (7th Cir. 2000). "The proponent of the expert bears the burden of demonstrating that the expert's testimony would satisfy the Daubert standard." Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 705 (7th Cir. 2009). District judges possess considerable discretion in dealing with expert testimony. Carroll v. Otis Elevator Co., 896 F.2d 210, 212 (7th Cir. 1990); see also Gen. Elec. Co., 522 U.S. at 141-43 (holding that abuse of discretion standard applies in reviewing district court rulings on admissibility of proposed Rule 702 opinion testimony).

First, in regard to qualifications, Rule 702 allows parties to introduce expert opinions if the expert has the requisite "knowledge, skill, experience, training, or education." Anyone who has relevant expertise and can offer responsible opinion testimony that is helpful to a judge or jury may qualify as an expert witness. See Tuf Racing Prod., Inc. v. Am. Suzuki Motor Corp., 223 F.3d 585, 591 (7th Cir. 2000). In assessing a proposed witness's qualifications, a court should consider the witness's full range of education, experience, and training. LG Elec. U.S.A., Inc. v. Whirlpool Corp., 661 F. Supp. 2d 940, 951 (N.D. Ill. 2009). In addition, given that "[m]odern science is highly specialized," a court must take care to confirm that a proposed expert is qualified to offer opinion testimony in the specific area of his or her proposed testimony. Braun v. Lorrillard, Inc., 84 F.3d 230, 235 (7th Cir. 1996).

With respect to the second factor a court must consider in a Rule 702 analysis, Daubert lists a number of relevant considerations in evaluating an expert's reasoning and methodology, including testing, peer review, error rates, and acceptability in the relevant scientific community. Daubert at 593-94. "[T]he test of reliability is flexible," however, "and Daubert's list of specific factors neither necessarily nor exclusively applies to all experts or in every case." Kumho, 526 U.S. at 141 (internal quotation omitted). "Rather the law grants a district court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination." Id. at 142 (emphasis omitted); see also Pansier, 576 F.3d at 737 (the Seventh Circuit "gives the [district] court great latitude in determining not only how to measure the reliability of the proposed expert testimony but also whether the testimony is, in fact, reliable") (emphasis omitted) (citing Jenkins v. Bartlett, 487 f.3d 482, 489) (7th Cir. 2007); Lewis, 561 F.3d at 704-05 ("the law grants the district court great discretion regarding the manner in which it conducts that [Daubert] evaluation"). For example, a district court may deem reliable the testimony of a witness whose expertise is based on practical experience rather than data. See Metavante Corp. v. Emigrant Sav. Bank, 619 F.3d 748, 761 (7th Cir. 2010).

Third, in assessing the admissibility of proposed expert testimony, the Court's "focus, of course, must be solely on principles and methodology, not on the conclusions that they generate." Daubert, 509 U.S. at 595. However, as the Supreme Court has recognized, "conclusions and methodology are not entirely distinct from one another," and while "[t]rained experts commonly extrapolate from existing data[,] * * * nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert." Gen. Elec., 522 U.S. at 146. In other words, "[a]n expert who supplies nothing but a bottom line supplies nothing of value to the judicial process." Wendler & Ezra, P.C. v. Am. Int'l Grp., Inc., 521 F.3d 790, 791-92 (7th Cir. 2008) (quoting Mid-State Fertilizer Co. v. Exch. Nat'l Bank, 877 F.2d 1333, 1339 (7th Cir. 1989)). To ensure that the expert's conclusions follow reliably from his or her methods, the Seventh Circuit has stressed that "the district court is responsible for making sure that when scientists testify in court they adhere to the same standards of intellectual rigor that are demanded in their professional work." Braun, 84 F.3d at 234. In short, "[i]t is critical under Rule 702 that there be a link between the facts or data the expert has worked with and the conclusion the expert's testimony is intended to support." United States v. Mamah, 332 F.3d 475, 478 (7th Cir. 2003). Where that link is missing, "[a] court may conclude that there is simply too great an analytical gap between the data and the opinion proffered." Gen. Elec.,522 U.S. at 146.

Finally, Rule 702 bars the admission of an expert's opinions unless such opinions will assist the trier of fact to understand the evidence or determining a fact in issue. In order to satisfy this "helpfulness" requirement, expert testimony must satisfy two elements. First, the proffered testimony must relate to a fact in issue: "expert testimony which does not relate to an issue in the case is not relevant, and, ergo, non-helpful." Porter v. Whitehall Laboratories, Inc., 9 F.3d 607, 613 (7th Cir. 1993) (quoting Daubert, 509 U.S. at 591). Second, the proffered testimony must assist the fact finder in understanding what otherwise might be outside its grasp.

See S.E.C. v. Lipson, 46 F. Supp.2d 758, 763 (N.D. Ill.1998);Sommerfield v. City of Chicago, 254 F.R.D. 317, 329 (N.D. Ill. 2008) (holding that "[e]xpert testimony is helpful to the [trier of fact] if it concerns a ...


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