United States District Court, N.D. Oklahoma
LEXINGTON INSURANCE COMPANY; GAVILON FERTILIZER, LLC; CERTAIN UNDERWRITERS AT LLOYD'S OF LONDON; and GAVILON GRAIN, LLC, Plaintiffs,
NEWBERN FABRICATING, INC., and BAUCOM CONCRETE CONSTRUCTION, INC., Defendants, and NEWBERN FABRICATING, INC., Third-Party Plaintiff,
DOVELAND ENGINEERING CO., Third-Party Defendant.
OPINION AND ORDER
V. EAGAN, UNITED STATES DISTRICT JUDGE
before the Court is the report and recommendation (Dkt # 329)
of Magistrate Judge T. Lane Wilson recommending that the
Court grant Baucom Concrete Construction, Inc.'s (Baucom)
motion to exclude or limit the testimony of Brian Bretz (Dkt.
# 147). Lexington Insurance Company (Lexington) filed an
objection (Dkt. # 337) to the report and recommendation, and
Baucom filed a response (Dkt. # 340).
action arises from the collapse of a wall of a storage
facility at the Tulsa Port of Catoosa. Gavilon Grain owned
the building, which Gavilon Fertilizer used to store
fertilizer. Dkt. # 147, at 2. In 2004, Gavilon Grain
contracted with Newbern Fabricating, Inc. (Newbern), a
construction company that builds river terminals and
equipment, to build a concrete storage facility. Id.
Baucom worked as the subcontractor responsible for the
concrete work on the project. Id. On March 7, 2013,
a concrete wall of the building collapsed, resulting in
damage to the wall itself and the master control center (MCC
Room), an adjacent room that housed controls, motors, and
electronics that controlled the building's conveyer
system. Id. Plaintiffs Lexington and Lloyd's of
London paid a number of claims related to the losses
sustained from the wall collapse. Dkt. # 54, 4-5. Plaintiffs
filed this action against defendants Newbern and Baucom,
asserting that the damages were caused by inadequate design
and installation of the concrete columns. Id. at
hired the firm Cunningham Lindsey to act as insurance
adjuster for the Gavilon claim. Dkt. # 185-3, at 7.
Cunningham Lindsey hired Bretz soon after the wall collapse
to conduct a preliminary inspection of damage and estimate
the cost of repairs. Id.; Dkt. # 147-2, at 4. Bretz
conducted a field inspection on March 20, 2013. Dkt. # 147-2,
at 5. On March 28, 2013, Bretz sent a preliminary inspection
report (preliminary report) to Cunningham Lindsey that
described the damage and included a “rough
order-of-magnitude reserve estimate.” Id. at
8. On May 21, 2013, Bretz sent Cunningham Lindsey a
“scope of damage repairs and associated cost
estimate” (second report), which included a one-page
“preliminary estimate summary” (May estimate).
Id. at 11-13. At some point between May 21, 2013 and
September 25, 2013,  another one-page “preliminary
estimate summary” was prepared (September estimate),
which is identical to the May estimate except for the
estimate for “electrical” is approximately $1,
000 less. Id. at 17-23. The September estimate also
includes a six-page detailed estimate. Id. Both
reports and estimates were produced to Baucom during
discovery in this case.
identified Bretz as an expert in repair cost estimation and
produced a report of Bretz pursuant to Federal Rule of Civil
Procedure 26(a)(2)(B) on September 30, 2015 (expert report).
Bretz's expert report includes a paragraph describing his
educational background and history with hi s cur re nt
employer, a summary of how Bretz was hired and his visit to
the site of the collapse in May 2013, and a list of the major
repairs needed to restore the building to its pre-loss
condition. Dkt. # 147-1, at 1-3. The second-to-last paragraph
contains the following sentence: “The above report and
associated estimate of damage repairs did not take into
account any code upgrade requirements which were unknown at
the time of this original report.” Id. at 3.
for Baucom emailed counsel for Lexington to ask about
Bretz's expert report in December 2015. Baucom's
counsel noted that cost estimates were mentioned in the
report but not attached, and no statement of compensation,
list of publications, or list of previous cases was included.
Dkt. # 147-2, at 3. Lexington's counsel responded with
six previously produced documents, stating that Baucom should
refer to them for “documentation containing the damage
amount and analysis.” Id. at 1. These
documents included Bretz's preliminary report, second
report and accompanying May estimate, two copies of the
September estimate, and a invoice for Bretz's consulting
expenses for April 2013. Id.
now asks the Court to exclude Bretz's testimony because
his expert report failed to meet the requirements of Rule
26(a), and because his cost estimate methodology is
unreliable. Dkt. # 147, at 3. Lexington responds that
Bretz's expert report complies with Rule 26(a) and his
methodology is reliable. Dkt. # 185, at 3.
Court may refer any pretrial matter pending before it to a
magistrate judge for a report and recommendation. 28 U.S.C.
§ 636(b)(1)(A). However, the parties may object to the
magistrate judge's recommendation within fourteen days of
service of the recommendation. Schrader v. Fred A. Ray,
M.D., P.C., 296 F.3d 968, 975 (10th Cir. 2002); Vega
v. Suthers, 195 F.3d 573, 579 (10th Cir. 1999). The
Court “shall make a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C.
§ 636(b)(1). The Court may accept, reject, or modify the
report and recommendation of the magistrate judge in whole or
in part. Fed.R.Civ.P. 72(b).
asks the Court to exclude Bretz's testimony for two
reasons: (1) Bretz's expert report failed to comply with
Rule 26(a), and (2) Bretz's methodology is unreliable.
The magistrate judge recommended that Bretz's testimony
should be excluded because Bretz's expert report did not
comply with Rule 26(a), and that failure was not
substantially justified or harmless. Dkt. # 329, at 7.
Because the magistrate judge recommended Baucom's motion
be granted on Baucom's Rule 26(a) argument, the
magistrate judge did not address Baucom's argument
regarding Bretz's methodology. Id. Lexington
objects to the report and recommendation, arguing that
Bretz's expert report complied with Rule 26(a) and that
any alleged deficiencies were harmless. Dkt. # 337. Baucom
responded to Lexington's objection, arguing that
Lexington's harmlessness argument is waived because it
was not raised before the magistrate judge. Dkt. # 340, at
Court first addresses Bacuom's Rule 26(a)
argument. Rule 26(a)(2)(B) governs expert reports,