United States District Court, E.D. Wisconsin
DECISION AND ORDER ON PLAINTIFF’S AND DEFENDANTS’ DAUBERT MOTIONS
NANCY JOSEPH, United States Magistrate Judge
Before me are the plaintiff’s, RMS of Wisconsin, Inc., and the defendants’, S-K JV and J.F. Shea Construction, Inc., motions to exclude expert testimony pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). RMS seeks to bar Stuart Lipofsky from testifying as an expert and to strike portions of the expert report of Terence Rodgers. (Docket # 84.) The defendants seek to exclude RMS’ damages expert, Michael Betters. (Docket # 89.) For the reasons discussed below, the plaintiff’s motion is granted in part and denied as moot in part and I will reserve judgment on the defendants’ motion pending a Daubert hearing.
The underlying facts of this case are detailed in this Court’s decision and order granting both parties’ motions for partial summary judgment. (Docket # 150.) For background purposes here, RMS performs excavating and shaft digging work and has performed this work for the defendants in the past. At issue in this case is a subcontract agreement entered into by the parties for the Indianapolis Deep Tunnel Project. As part of its bid to get the contract on the Deep Tunnel Project, the defendants warranted that they would make a good faith effort to award a percentage of their subcontracting dollars to “minority business enterprises, ” which includes “women-owned business enterprises.” RMS has been certified as a women-owned business enterprise. RMS alleges that the defendants never intended to honor the subcontract agreement, but rather used RMS as a “pass-through” to fulfill the requirement to employ women-owned business enterprises. RMS sued the defendants for fraud in the inducement, breach of contract, and breach of the covenant of good faith and fair dealing. Both parties moved for partial summary judgment. The defendants moved for dismissal of RMS’ fraud in the inducement claim, which was granted. RMS moved to declare the subcontract agreement a lump sum contract (as opposed to a time and materials contract), which was also granted.
Both parties have also filed Daubert motions. RMS has moved to exclude the expert testimony of Stuart Lipofsky, the defendants’ project manager, and portions of the expert report of Terence Rodgers, the defendants’ damages expert. The defendants have moved to exclude the opinion of Michael Betters, RMS’ damages expert. I will address each in turn.
The admissibility of expert testimony is governed by Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Ervin v. Johnson & Johnson, Inc., 492 F.3d 901, 904 (7th Cir. 2007). Rule 702 provides that:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b)
the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.
The inquiry consists of three general areas: (1) the testimony must be “helpful, ” which dovetails with the relevance requirements of Fed.R.Evid. 401-403; (2) the expert must be qualified by knowledge, skill, experience, training, or education; and (3) the testimony must be reliable and fit the facts of the case. Lyman v. St. Jude Medical S.C., Inc., 580 F.Supp.2d 719, 722 (E.D. Wis. 2008).
Under the third part of the analysis, the court examines whether (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. Fed.R.Evid. 702. The court acts “as a ‘gatekeeper’ for expert testimony, only admitting such testimony after receiving satisfactory evidence of its reliability.” Dhillon v. Crown Controls Corp., 269 F.3d 865, 869 (7th Cir. 2001). To help ensure the reliability of expert testimony, the court considers, for example, whether the theory can be and has been verified by the scientific method through testing, whether the theory has been subjected to peer review, the known or potential rate of error, and the general acceptance of the theory in the scientific community. Cummins v. Lyle Indus., 93 F.3d 362, 368 (7th Cir. 1996).
Finally, despite the court’s role as a gatekeeper, expert testimony is liberally admissible under the Federal Rules of Evidence. Lyman, 580 F.Supp.2d at 723. “Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate ...