Engineering & Construction Innovations, Inc. v. Bradshaw Construction Corp.

                 UNITED STATES DISTRICT COURT                            
                    DISTRICT OF MINNESOTA                                


Engineering & Construction Innovations,  Case No. 20-cv-0808 (WMW/TNL)   
Inc.,                                                                    

     Plaintiff/Counterclaim-Defendant,      ORDER                        

v.                                                                       

Bradshaw Construction Corporation, and                                   
Travelers Casualty and Surety Company of                                 
America,                                                                 

     Defendants/Counterclaim-Plaintiffs,                                 

v.                                                                       

Fidelity and Deposit Company of                                          
Maryland, and Zurich American Insurance                                  
Company,                                                                 

            Counterclaim-Defendants.                                     
    This matter is before the Court on the parties’ cross-motions to exclude expert 
testimony, (Dkts. 309, 315, 328), and cross-motions for summary judgment (Dkts. 323, 
334).  For the reasons addressed in this Order, Defendants’ motion to exclude the testimony 
of Arthur McGinn is denied; Defendants’ motion to exclude the testimony of Mark Gentry 
is denied; Engineering & Construction Innovations, Inc.’s (“ECI”) motion to exclude the 
testimony  of  Donald  Bergman  is  granted  to  the  extent  that  Bergman’s  opinions  on 
engineering and geological topics are beyond his area of expertise and denied in all other 
respects; ECI’s motion to exclude the testimony of Kimberlie Staheli is denied; and ECI’s 
motion to exclude the testimony of Scott Bender is denied.  As addressed in this Order, 
Defendants’ motion for summary judgment is denied, and ECI’s motion for summary 
judgment is granted in part and denied in part.                           

                         BACKGROUND                                      
I.   The 10th Avenue Water Main River Crossing Project                    
    The  City  of  Minneapolis  (“City”)  planned  to  install  a  water  main  under  the 
Mississippi River as part of the City’s 10th Avenue Water Main River Crossing Project 
(“Project”).  The Project required the construction of a microtunnel through the sandstone 
beneath the Mississippi River.  Microtunneling is a form of mechanized tunnel construction 

that uses a remote-controlled microtunnel boring machine (“MTBM”) to construct a tunnel 
and simultaneously install pipe casing with minimal disruption to the ground above.  
    To  prepare  for  the  Project,  Black  &  Veatch  Corporation  (“Black  &  Veatch”) 
conducted a geotechnical investigation of the Project Site and prepared two geotechnical 
reports.  The Geotechnical Data Report (“GDR”) presented factual details, data and the 

result  of  the  investigation.    The  Geotechnical  Baseline  Report  (“GBR”)  took  the 
information  in  the  GDR  and  established  a  “contractual  statement  of  the  subsurface 
conditions” on the Project Site, “referred to as the baseline conditions.”  (Dkt. 338-1 at 57.)  
The GBR expressly “establishes the allocation of risk between Contractor and Owner for 
the  actual  conditions  encountered.”   (Id.  at  60.)   If  the  actual  subsurface  conditions 

materially differ from the subsurface conditions as expressly described in the GBR, the 
contractor can make a claim for a differing site condition (“DSC”).1  The GBR “provides 
the basis for determining the merit of claims for differing site conditions.”  (Id.)  These 

documents were published to bidders on the Project and expressly included in the contract 
documents.                                                                
    ECI successfully bid on the Project and, in March 2019, ECI entered into an 
agreement (“Prime Contract”) with the City.  Under the Prime Contract, ECI agreed to 
“provide all materials, labor, equipment and incidentals necessary for the 10th Avenue 
Water Main River Crossing Project, all in accordance with the bid specifications[.]”  (Dkt. 

338-1 at 33.)  ECI decided to subcontract the microtunneling portion of the work to another 
party.  In soliciting bids for the microtunneling work, ECI provided bidding subcontractors 
instructions that incorporated the Project’s specifications and included the GDR and GBR.  
    Bradshaw Construction Corporation (“Bradshaw”) submitted a successful bid for 
the microtunneling work on the Project, and ECI and Bradshaw entered into an agreement 

on May 30, 2019 (“Subcontract”).  Under the Subcontract, Bradshaw agreed “to provide 
all labor, materials, services, and equipment to perform the following scope of work on the 
Project: Install 60” steel Casing via Microtunneling.”  (Dkt. 338-3 at 2.)  As part of the 
Subcontract,  Bradshaw  was  “solely  responsible  for  the  means,  methods,  techniques, 
sequences, and procedures” of performing its microtunneling work.”  (Id. at 44.)  The 

Subcontract’s estimated schedule called for Bradshaw to achieve substantial completion of 


1 “Differing Site Condition” occurs when a construction contractor encounters a subsurface 
or  otherwise  concealed  site  condition  that  differs  materially  from  what  the  contract 
indicated or from what would normally be expected.                        
the work by November 22, 2019.  ECI agreed to pay Bradshaw approximately $2.6 million 
upon completion of the Subcontract.                                       

II.  The Microtunneling Work                                              
    Around  October  2019,  Bradshaw’s  portion  of  the  work  began.    Bradshaw 
constructed the concrete head wall—a structure that would be used to launch the MTBM.  
After the completion of the concrete head wall, Bradshaw commenced the microtunneling 
process on November 7, 2019.  That evening, groundwater unexpectedly penetrated the 
shaft and flooded the tunnel.  The groundwater overwhelmed the pumps in the shaft and 

submerged the tunneling equipment, which forced Bradshaw to stop tunneling.  
    A.   Change Orders and DSC Claims                                    
    As part of the Standard General Conditions of the Construction Contract, any 
changes in time or prices required a change order.  Moreover, in making a DSC claim, the 
contractor “shall, promptly after becoming aware thereof and before further disturbing the 

subsurface conditions or performing any work in connection therewith . . . notify Owner 
and Engineer in writing about such condition no later than three (3) days after the first 
observance of such condition.”  Additionally, a contractor “shall not be entitled to any 
adjustment in the Contract Price or Contract Times with respect to a subsurface or physical 
condition if . . . [the] Contractor failed to give the written notice as required.”  (Dkt. 338-4 

at 14.)                                                                   
    On November 15, 2019, Bradshaw sent a letter to ECI:                 
         Due to the groundwater flows encountered on the project being   
         in excess of what is indicated in the Geotechnical Baseline     
         Report, please accept this letter as notification of differing site 
         conditions. Bradshaw hereby reserves the right to claim for the 
         extra costs and extra time associated with these differing site 
         conditions.                                                     

         Please forward this notification on to the owner/engineer. I am 
         available to discuss this matter at your convenience.           

(“First DSC Claim”) (Id. at 30).                                          
    On November 16, 2019, an internal email between Bradshaw employees stated: 
         I just found in the Supplementary Conditions there is a 3 day   
         notice provision for a DSC claim. Why do you think it is 14     
         days? I hope so we arguably have lost any claim rights for this 
         flood that we may have had.                                     
(Dkt. 337-1 at 239.)  Around November 26, 2019, Bradshaw employees discussed this 
issue with Bradshaw’s attorney, who also advised that the claim needed to be submitted to 
Black & Veatch and the City.  Shortly, thereafter, Bradshaw submitted the First DSC Claim 
to Black & Veatch and the City.                                           
    On November 23, 2019, Bradshaw recommenced microtunneling but stopped on 
December 6, 2019, because of a second flood.  On December 13, 2019, Black & Veatch 
rejected the First DSC Claim.  Black & Veatch determined the cause of the flooding was 
not due to differing subsurface conditions.  Instead, Black & Veatch determined that the 
failure of the concrete head wall caused the flooding.  On December 18, 2019, Bradshaw 
appealed Black & Veatch’s denial.  Black  & Veatch rejected Bradshaw’s appeal on 
February 4, 2020.                                                         
    On December 29, 2019, Bradshaw resumed tunneling.  After a few feet, Bradshaw 
encountered high jacking loads2 that prevented Bradshaw from making any significant 

progress.  On January 1, 2020, Bradshaw decided to stop tunneling.  On January 4, 2020, 
Bradshaw submitted another DSC claim (“Second DSC Claim”), which Black & Veatch 
denied on February 13, 2020.                                              
    Pursuant to the Prime Contract, the City issued a Notice of Request for Replacement 
Microtunneling Subcontractor to ECI on February 25, 2020.  ECI terminated Bradshaw the 
following  day,  alleging  material  breaches  of  contract.    ECI  subsequently  engaged 

Akermann, Inc., to complete the Project.                                  
III.  The Lawsuit                                                         
    In March 2020, ECI sued Bradshaw and Travelers, Bradshaw’s surety, in Hennepin 
County District Court.  Defendants subsequently removed the case to the United States 
District Court for the District of Minnesota.  In answering the complaint, Bradshaw brought 

eight counterclaims against ECI.                                          
    On November 21, 2022, Defendants moved to exclude the expert testimony of 
Arthur  McGinn  and  Mark  Gentry.    ECI  subsequently  moved  to  exclude  the  expert 
testimony of Donald Bergman, Kimberlie Staheli and Scott Bender.  Defendants also 
moved  for  partial  summary  judgment  as  to  certain  damages  ECI  that  ECI  contends 

Bradshaw owes.  ECI moved for summary judgment motion on Bradshaw’s crossclaims. 


2 High jacking loads are a severe counterforce that could damage the MTBM if the 
microtunneling continued.                                                 
IV.  Relevant Portion of the Contracts                                    
Section 18.09 of the Prime Contract states:                               
         The parties also recognize the delays, expenses, and difficulties 
         involved in proving in a legal or arbitration proceeding the    
         actual loss suffered by Owner if the Work is not completed on   
         time.  Accordingly, instead of requiring any such proof, Owner  
         and Contractor agree that as liquidated damages for delay (but  
         not as a penalty) contractor shall pay Owner [$5,000 per day if 
         the work is not substantially complete].                        

(Dkt. 326-5 at 27.)  Section 2(c) of the Subcontract states:              

         If the Contract Documents provide for liquidated damages,       
         then Subcontractor will be responsible for the portion of such  
         liquidated  damages  caused  by  Subcontractor’s  delayed  or   
         deficient work pursuant to the Indemnifications paragraph (¶ 6) 
         that Subcontractor agrees are reasonable.                       

(Dkt. 326-8 at 2.)  Section 6 of the Subcontract provides that:           

         Subcontractor  will  defend,  indemnify  and  save  harmless    
         Contractor and Owner, and their respective officers, directors  
         and agents, to the fullest extent of the law, from any and all  
         claims, damages, and expenses, in whole or part, including      
         costs, expert fees, and reasonable attorney’s fees, bodily injury 
         or  property  damage,  arising  or  in  any  way  resulting     
         from . . . [a]ny  other  liability  to  Owner  or  Contractor  that 
         Subcontractor caused including Liquidated Damages.              

(Dkt.  326-8  at  5.)    And  under  section  9  of  the  Subcontract,  “[u]pon  breach, 
Contractor . . . may charge to [Subcontractor] any cost to complete, correct or becomes 
owed to Owner, plus damages from delay or disruption, plus liquidated or actual damages 
caused by Subcontractor’s breach.”  (Dkt. 326-8 at 6.)                    
    ECI  argues  that  Bradshaw  owes  ECI  $7,575,651  in  total  damages,  which  is 
comprised of $250,691 in Additional ECI Pre-Termination Costs, $3,245,562 in Additional 
ECI  Microtunneling  Related  Costs  and  $1,246,168  in  Extended  General  Conditions 
damages. It also includes Overhead and Profit of $785,819 and City of Minneapolis 

Damages of $2,047,411.  The category identified as “City of Minneapolis Damages” 
represents the portion of liquidated damages for which Defendants are allegedly liable.  
The “Extended General Conditions” damages are the daily costs expended from the delay. 
                           ANALYSIS                                      
I.   Daubert Motions                                                      
    The admissibility of expert testimony presents an issue of law governed by Federal 

Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 

 
(1993).  Rule 702 provides:                                               
         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.                                     

Fed. R. Evid. 702.  “An expert may base an opinion on facts or data in the case that the 
expert has been made aware of or personally observed.”  Fed. R. Evid. 703.  “If experts in 
the particular field would reasonably rely on those kinds of facts or data in forming an 
opinion on the subject, they need not be admissible for the opinion to be admitted.”  

 
    The proponent of expert testimony must prove its admissibility by a preponderance 
of the evidence.  Lauzon v. Senco Prods., Inc., 

 (8th Cir. 2001).  “Rule 

702 reflects an attempt to liberalize the rules governing the admission of expert testimony” 
and  favors  admission  over  exclusion.    

  (internal  quotation  marks  omitted).    The 
determination as to the admissibility of expert testimony is within a district court’s sound 
discretion.  See Arkwright Mut. Ins. Co. v. Gwinner Oil, Inc., 

 (8th Cir. 
1997).                                                                    
    A district court must ensure that testimony admitted under Rule 702 “is not only 

relevant,  but  reliable.”    Daubert,  

.    When  making  the  reliability 
determination, a court may evaluate whether the expert’s method has been tested or 
subjected to peer review and publication, the method’s known or potential rate of error, 
and the method’s general acceptance.  Presley v. Lakewood Eng’g & Mfg. Co., 

 (8th Cir. 2009) (citing Daubert, 509 U.S. at 593–94).  These factors are not 

exhaustive, and a court must evaluate the reliability of expert testimony based on the facts 
of the case.  

  A court also may consider “whether the expertise was developed for 
litigation or naturally flowed from the expert’s research; whether the proposed expert ruled 
out other alternative explanations; and whether the proposed expert sufficiently connected 
the proposed testimony with the facts of the case.”  Sappington v. Skyjack, Inc., 

 (8th Cir. 2008) (internal quotation marks omitted).  When weighing these factors, 
a district court must function as a gatekeeper to separate “expert opinion evidence based 
on ‘good grounds’ from subjective speculation that masquerades as scientific knowledge.”  
Glastetter v. Novartis Pharm. Corp., 

, 989 (8th Cir. 2001).   
    Expert testimony is not admissible if it is “speculative, unsupported by sufficient 
facts, or contrary to the facts of the case,” Marmo v. Tyson Fresh Meats, Inc., 

 (8th Cir. 2006), such that the testimony is “so fundamentally unsupported that it 
can offer no assistance to the jury,” Minn. Supply Co. v. Raymond Corp., 

, 
544 (8th Cir. 2006) (internal quotation marks omitted).  But disputes about the factual basis 
of an expert’s testimony ordinarily implicate the credibility—not the admissibility—of the 
testimony.  Sappington, 

; see also Minn. Supply Co., 472 F.3d at 544. 
    Both parties move to exclude expert testimony.  Defendants move to exclude the 

expert testimony of Arthur McGinn and Mark Gentry.  ECI moves to exclude the expert 
testimony of Donald Bergman, Kimberlie Staheli and Scott Bender.          
    A.   Arthur McGinn                                                   
         1.   McGinn’s Qualifications                                    
    Arthur McGinn is an engineer that ECI retained as an expert.  Defendants argue that 

McGinn is not qualified to testify as an expert witness regarding microtunneling and his 
testimony  should  be  excluded  entirely  because  McGinn  has  worked  on  only  two 
microtunneling projects in the past.  ECI disagrees, highlighting McGinn’s credentials and 
arguing that any limited experience goes to the weight of the testimonial evidence not 
McGinn’s qualifications to testify as an expert witness.                  

    McGinn  has  a  Ph.D.  in  Geotechnical  Engineering,  a  master’s  degree  in  civil 
engineering and is professionally licensed in six states and the District of Columbia.  
McGinn has over 25  years of relevant work experience, and he  has worked on two 
microtunneling projects in the past.  Based on McGinn’s “knowledge, skill, training [and] 
education,” the Court concludes that McGinn qualifies as an expert.  Fed. R. Evid. 702.  
Any gaps in McGinn’s experience in microtunneling go to the weight of his opinion, not 

to its admissibility.  See Robinson v. GEICO Gen. Ins. Co., 

 (8th Cir. 
2006).  Accordingly, the Court denies Defendants’ motion to exclude McGinn’s testimony 
as it pertains to this argument.                                          
         2.   McGinn’s Testimony on Ground Permeability and Muck Ring    
              Return Rates                                               
    Alternatively, Defendants contend that McGinn’s testimony on the topics of ground 
permeability and muck ring return rates should be excluded because McGinn’s testimony 
is unreliable.  Defendants maintain that McGinn failed to adequately disclose the basis for 
his opinion as required by Rule 26(a)(2)(b), Fed. R. Civ. P.  ECI responds that McGinn’s 

opinions are adequately supported by the record.  ECI also argues that Defendants’ Daubert 
motion is a veiled discovery motion that should have been brought by October 21, 2022.  
    Here, it is unclear if Defendants brought this motion to exclude testimony under 
Rule 702, Fed. R. Evid., or Rule 37(a), Fed. R. Civ. P. Defendants’ arguments begin with 
a reference to Fed. R. Evid. 702, but the argument pivots to an exclusion analysis under 

Rule 37(a), Fed. R. Civ. P.  In their response memorandum, Defendants clarify that they 
are arguing that exclusion is required under Fed. R. Evid. 702.  But Defendants provide no 
corrected analysis.                                                       
    To the extent that Defendants argue that exclusion is required under Rule 702, Fed. 
R. Evid., there is no basis for exclusion.  Expert testimony is not admissible if it is 

“speculative, unsupported by sufficient facts, or contrary to the facts of the case,” Marmo, 

, such that it is “so fundamentally unsupported that it can offer no assistance 
to the jury,” Minn. Supply Co., 472 F.3d at 544.  At his deposition, McGinn testified that 

his conclusions regarding ground permeability and muck ring return rate were based on 
calculations that he performed in connection with other projections that were located near 
the Project site in this case.  As such, the Court concludes that McGinn’s testimony is based 
on  sufficient  facts  and  data.    Therefore,  Defendants’  motion  to  exclude  McGinn’s 
testimony on this ground is denied.                                       
    To the extent that Defendants rely on Rule 37(a), Fed. R. Civ. P., this motion to 

strike is untimely.  The scheduling order required “[a]ll non-dispositive motions and 
supporting documents which relate to expert discovery [to] be filed and served on or before 
October 21, 2022.”  (Dkt. 288 ¶ 4.)  Defendants brought this motion on November 21, 
2022.  Defendants offer no explanation for the untimely filing.  Therefore, to the extent 
that Defendants move to strike under Rule 37(a), the motion is denied.    

    B.   Mark Gentry                                                     
    Mark Gentry is ECI’s scheduling and damages expert.  Defendants seek to exclude 
Gentry’s expert testimony, arguing that Gentry’s damages calculation is inconsistent with 
the Subcontract and established damages principles.  Particularly, Defendants challenge 
Gentry’s inclusion of ECI’s lost Overhead and Profit in the overall calculation.  Exclusion 

is unwarranted, ECI argues, because Gentry’s calculation is fundamentally supported.  
    First, Defendants contend that Gentry’s calculation is not based on sufficient facts 
or data because the calculation is inconsistent with the Subcontract.  This argument is based 
on Defendants’ interpretation of the contract, which is an issue for the trier of fact.  Such 
disputes are not properly resolved in the context of a Daubert motion.    

    Second,  Defendants  maintain  that  Gentry’s  calculation  is  fundamentally 
unsupported by the record because Gentry simply relies on ECI’s calculations.  Defendants 
take issue with Gentry’s reliance on the 16.57% rate for ECI’s Overhead and Profits 
calculated by ECI’s former chief financial officer.  ECI contends this rate was derived from 
discussion with the former CFO and review of the Project’s financial records.  This 
challenge  to  the  factual  basis  of  Gentry’s  conclusions  implicates  credibility,  not  the 

admissibility, of the testimony.  See Sappington, 

.  As such, the Court denies 
Defendants’ motion to exclude Gentry’s testimony.                         
    C.   Donald Bergman                                                  
    Donald Bergman is the Chief Estimator for Frank Coluccio Construction Company 
and has experience in planning and bidding on microtunneling projects.  Defendants 

retained Bergman for the purpose of explaining the technical language of the industry.  ECI 
argues that Bergman’s testimony should be limited to the reasonableness of Bradshaw’s 
bid on the project.  ECI maintains that Bergman’s expert report provides inadmissible legal 
conclusions, unqualified opinions on engineering and geological topics, improper opinions 
on whether the DSC claims were properly rejected, an unhelpful recitation of the facts, and  

irrelevant opinions regarding Test Borings.  Defendants do not dispute that Bergman 
cannot provide inadmissible legal conclusions.  But Defendants oppose the motion to 
exclude Bergman’s testimony, arguing that they will not illicit any inadmissible legal 
conclusions at trial.  Defendants contend that Bergman’s testimony on these other subjects 
is admissible.  These issues are addressed in turn.                       

         1.   Inadmissible Legal Conclusions                             
    Portions of Bergman’s expert testimony should be excluded because he provides 
inadmissible legal conclusions, ECI contends.  “As a general rule, questions of law are the 
subject of the court’s instructions and not the subject of expert testimony.”  United States 
v. Klaphake, 

 (8th Cir. 1995) (internal quotation marks omitted); accord 
S. Pine Helicopters, Inc. v. Phoenix Aviation Managers, Inc., 

, 841 (8th Cir. 

2003) (“[E]xpert testimony on legal matters is not admissible.”).  Expert testimony about 
the requirements of the law is improper because it “would give the appearance that the 
court was shifting to witnesses the responsibility to decide the case.”  Portz v. St. Cloud 
State Univ., 

 (D. Minn. 2018) (internal quotation omitted).  The 
construction of the terms and conditions of written contracts presents an issue of law for 

the trial court to determine.  Weitz Co. v. Lexington Ins. Co., 

 (8th Cir. 
2015).                                                                    
    Here, both parties agree that Bergman’s legal conclusions are inadmissible.  ECI’s 
arguments are broadly stated and do not identify the legal conclusions that it seeks to 
exclude.  Moreover, Defendants maintain that they will avoid eliciting these statements 

from Bergman.  As there is no dispute before the Court at this time, the Court denies the 
motion as moot.                                                           
         2.   Opinions on Engineering and Geological Topics              
    ECI seeks to exclude Bergman’s opinions regarding engineering and geological 

topics, arguing that Bergman is unqualified to speak on these topics.  ECI challenges 
Bergman’s conclusions regarding the shaft constructed by ECI and seal constructed by 
Bradshaw.  Bergman has five decades of experience in the planning and bidding on 
microtunneling projects.  The extent to which this work  pertains to engineering and 
geological topics is unclear.  Bergman concedes that “[he is] not a [professional engineer], 
[he is] not a hydrologist, nor [is he] a geological [professional engineer].”  (Dkt. 332-1 at 

132:10-132:19.)  Nothing in the record establishes that Bergman’s opinions are supported 
by any scientific, technical or specialized knowledge that would help the trier of fact 
understand the evidence or determine a fact at issue.  See Fed. R. Evid. 702.  Rather, 
Bergman’s opinions are based on his own personal opinions and conclusions from his 
review  of  documents  and  photos  provided  to  him.    The  record  is  insufficient  as  to 

Bergman’s  qualifications  to  opine  on  these  two  topics  and  how  he  arrived  at  his 
conclusions.  Accordingly, the Court concludes that Bergman lacks the background to 
opine on engineering and geological topics.  For these reasons, ECI’s motion to exclude 
Bergman’s testimony on engineering and geological topics is granted.      
         3.   Opinions on Whether DSC Claims Were Properly Rejected      

    ECI seeks to exclude all of Bergman’s testimony regarding DSC claims because 
Bergman did not evaluate what the actual subsurface conditions were.  Specifically, ECI 
takes issue with Bergman’s opinions on whether the DSC claims have been properly filed 
and whether the claims have been responded to properly.  Bergman has over 28 years of 
experience in addressing DSC claims.  Bergman’s DSC opinions are formed from his 
review of the claim and his understanding of industry practices.  Based on his work 

experience with DSC claims, the Court concludes that Bergman is qualified to opine on 
the DSC claims.  Moreover, knowledge and methodology pertain to the weight that the 
jury accords Bergman’s testimony, not its admissibility.  See Miles v. Gen Motors Corp., 

 (8th Cir. 2001).  ECI’s motion to exclude Bergman’s DSC testimony is 
denied.                                                                   
         4.   Statements Regarding Facts                                 

    ECI argues that Bergman’s testimony is unhelpful because he merely recites the 
factual record and, for this reason, ECI seeks to exclude Bergman’s statements regarding 
facts.  “[A]n expert who simply ‘draws inferences or reaches conclusions within the jury’s 
competence’ does not provide ‘helpful testimony’ under Rule 702.”  Somnis v. Country 
Mut. Ins. Co., 

 (D. Minn. 2012) (citing Nichols v. Am. Nat’l 

Ins. Co., 

 (8th Cir. 1998)).  Because expert evidence can be both powerful 
and quite misleading, the Court must be particularly careful to exclude expert testimony if 
it might lead the jury to simply rely on the expert’s opinion and “surrender its own common 
sense.”  Westcott v. Crinklaw, 

 (8th Cir. 1995).         
    The parties agree that Bergman cannot simply recite the facts.  They disagree, 

however, as to the extent that Bergman is doing so.  Defendants maintain that Bergman’s 
recitation of the facts provides the foundation for his opinions.  But it is difficult to ascertain 
at this time what specific facts Bergman will be stating to the jury and what facts he will 
be providing as the foundation for his opinion.  This dispute is more appropriately resolved 
at trial.  Therefore, ECI’s motion to exclude Bergman’s testimony that simply recites facts 
is denied.                                                                

         5.   Opinions Regarding Test Borings                            
    ECI also seeks to exclude Bergman’s opinions regarding test borings, arguing he 
does not provide any relevant opinion on the matter.  Specifically, ECI contests Bergman’s 
opinion that “the [geotechnical baseline report] might have benefited from additional 
borings.]”  (Dkt. 332-1 at 141:19-146:17.)  Defendants contend that Bergman’s opinions 
are relevant.                                                             

    Evidence is relevant if it has any tendency to make a fact more or less probable than 
it would be without the evidence and the fact is of consequence in determining the action.  
Fed. R. Evid. 401.  Bergman’s opinion is relevant because it pertains to whether ECI’s 
rejection of Bradshaw’s DSC claims was reasonable under the contract.  Accordingly, 
ECI’s motion to exclude Bergman’s opinion regarding test borings is denied.  

    D.   Kimberlie Staheli                                               
    Kimberlie Staheli is a construction expert for Defendants.  ECI does not challenge 
Staheli’s qualifications as an expert witness.  Rather, ECI argues that Staheli’s opinions 
about  the  Project’s  subsurface  conditions  are  unreliable  because  neither  Staheli  nor 
Defendants physically inspected the Project’s subsurface.                 

    Staheli provides a detailed account of the methodologies she employed to examine 
the subsurface conditions at the Project.  ECI argues that Staheli’s testimony is insufficient 
because she opined that the three best and most accurate methods to investigate the 
presence of voids in a particular subsurface location would be vertical borings, ground 
penetrating radar and cross-hole tomography.  And Staheli concedes that these methods 
were not used because of costs.                                           

     “An expert may base an opinion on facts or data in the case that the expert has been 
made aware of or personally observed.”  Fed. R. Evid. 703.  “If experts in the particular 
field would reasonably rely on those kinds of facts or data in forming an opinion on the 
subject, they need not be admissible for the opinion to be admitted.”  

  ECI does not 
appear to argue the methods employed by Staheli are insufficient.  Rather, ECI maintains 
that these methods were not the best and most accurate methods that Staheli identified.  

Staheli’s knowledge and methodology pertain to the weight that the jury accords her 
testimony rather than its admissibility.  See Miles, 

.  For this reason, ECI’s 
motion to exclude Staheli’s expert testimony is denied.                   
    E.   Scott Bender                                                    
    Scott Bender is Defendants’ hydrogeology expert.  ECI does not challenge his 

ability to testify as an expert witness.  Rather, ECI argues that Bender’s opinions about 
grouting are unreliable because he lacks the appropriate licensure or certification.  
    Bender  has  experience  working  with  a  variety  of  grouts.  As  a  result  of  this 
experience, he is knowledgeable about what will infiltrate porous media.   Gaps in Bender’s 
qualifications, however, pertain to the weight of Bender’s opinion, not to its admissibility.  

Robinson, 

.  Accordingly, ECI’s motion to exclude Bender’s expert 
testimony is denied.                                                      
II.  Summary Judgment                                                     
    Summary judgment is proper when the moving party establishes that there is no 

genuine dispute as to any material fact and the moving party “is entitled to judgment as a 
matter of law.”  Fed. R. Civ. P. 56(a); see Anderson v. Liberty Lobby, Inc., 

 (1968).  When considering a motion for summary judgment, the court views the 
evidence and any reasonable inferences to be drawn from the evidence in the light most 
favorable to the nonmoving party.  Krenik v. Cty. Of Le Sueur, 

 (8th Cir. 
1995).                                                                    

    Whether a fact  is “material” is assessed under the  governing substantive law.  
Anderson, 

.  Summary judgment is not appropriate where a dispute about a 
material fact is “genuine,” i.e., “if the evidence is such that a reasonable jury could return 
a verdict for the nonmoving party.”  

                                  
    The party seeking summary judgment bears the initial burden of production.  See 

Celotex Corp. v. Catrett, 

 (1986).  When the moving party carried its 
burden,  the  nonmoving  party  “must  do  more  than  simply  show  that  there  is  some 
metaphysical doubt as to the material facts,” Scott v. Harris, 

 (2007), or 
rest on “the mere allegations or denials.”  Anderson, 

.  The nonmoving party 
must cite with particularity those aspects of the record that support the assertion that a fact 

is genuinely disputed.  Fed. R. Civ. P. 56(c)(1)(A).                      
    A.   Defendants’ Summary Judgment Motion                             
    In their motion for partial summary judgment, Defendants maintain that ECI cannot 
recover “actual delay” damages and liquidated damages under the Subcontract, ECI lacks 
standing to recover damages related to the change order and ECI’s claim for liquidated 
damages on behalf of the City are not ripe.  Each argument is addressed in turn.  

         1.   Actual Damages and Liquidated Damages under the            
              Subcontract.                                               
    Defendants contend that ECI cannot recover actual damages and liquidated damages 
under the Subcontract because the Subcontract does not permit the simultaneous recovery 
of these damages.  It is undisputed that the Subcontract incorporates an enforceable 
liquidated damages clause from the Prime Contract.  And the Subcontract states that 
“Contractor . . . may charge to [Subcontractor] any cost to complete, correct or becomes 
owed to Owner, plus damages from delay or disruption, plus liquidated or actual damages 
caused by Subcontractor’s breach.”  (Dkt. 326-8 at 6.)                    

    Defendants argue that the liquidated damages imposed on ECI by the City through 
the Prime Contract are consistent with the terms of the Subcontract.  And, Defendants 
contend, “extended general conditions” damages provided by ECI are actual damages.3  As 
such, Defendants maintain that under the subcontract, ECI can only receive either the “City 
of Minneapolis Damages” or “extended general conditions” damages.         

    Defendants’  arguments  are  unavailing.    The  Subcontract  states  that 
“Contractor . . . may charge to [Subcontractor] any cost to complete, correct or [that] 
becomes owed to Owner, plus damages from delay or disruption, plus liquidated or actual 


3 Defendants refer to the “extended general conditions” damages here as “actual delay 
damages.”  (See Dkt. 325 at 26.)  In doing so, Defendants seemingly concede that the 
damages at issue here are also delay damages.  The Court presumes that Defendants are 
referring to “actual damages” in the disputed clause of the contract.     
damages.”  (Dkt. 326-8 at 6) (emphasis added).  Defendants do not identify any provision 
in the contract or cite any case law to support the contention that the “extended general 

conditions” damages at issue here should be considered actual damages.  As there is a 
genuine dispute as to any material fact as it relates to the categorization of these damages, 
Defendants fail to show that they are entitled to judgment as a matter of law.  Defendant’s 
motion for summary judgment on this issue is denied.                      
         2.   Standing to Recover Damages Pertaining to the Change Order  

    Defendants contend that ECI lacks standing to recover $2,583,041 from the change 
order provided by the City because the City did not properly assign this claim to ECI.  In 
response to this argument, ECI maintains that it is not seeking recovery on behalf of the 
City for the change order.  ECI argues that it incurred an additional $3,245,562 in costs 
following Bradshaw’s breach.  And ECI is seeking to recover $3,245,562 from Defendants.  
The $2,583,041 change order, ECI contends, was provided to ECI following Bradshaw’s 

termination so that ECI would have sufficient funds to complete the project.  Under The 
Common  Interest  and  Cooperation  Agreement,  any  money  recovered  by  ECI  up  to 
$2,583,041  would  be  disbursed  to  the  City.    Viewing  the  evidence  and  drawing  all 
reasonable inferences in the light most favorable to ECI, Defendants fail to establish that 
there is no genuine dispute as to any material fact.  Accordingly, Defendants’ motion for 

summary judgment as to ECI’s lack of standing to recover $2,583,041 from the change 
order is denied.                                                          
         3.   Whether the Liquidated Damages are Ripe                    
    Defendants summary judgment on ECI’s claim for liquidated damages assessed by 
the City, arguing that the money has not yet been collected and, therefore, the issue is not 

ripe for adjudication.                                                    
    “A claim is not ripe for adjudication if it rests upon contingent future events that 
may occur as anticipated, or indeed may not occur at all.”  Texas v. United States, 

 (1998) (quotation omitted).  Although a plaintiff is not required to wait until the 
threatened injury occurs, the injury must be “certainly impending.”  Paraquad, Inc. v. St. 

Louis Housing Auth., 

, 958-59 (8th Cir. 2001).                
    ECI’s claim for liquidated damages does not rest on the contingent future event that 
it might owe the City the liquidated damages.  See HCIC Enterprises, LLC v. United States, 

, 302 (2020) (Federal Claims Court concluding a claim is not ripe when 
liquidated damages have yet to be assessed).  The Prime Contract provides that ECI shall 

pay liquidated damages in the event of a delay.  It is undisputed that the City assessed 
liquidated damages against ECI and is requesting payment.  As the liquidated damages 
have been assessed, the injury to ECI is “certainly impending.”  Paraquad, Inc., 259 F.3d 
at 958.  Additionally, Defendants lack any legal support for their argument that a party 
must collect the liquidated damages before standing can be established.  The amount of 

liquidated damages to the City is known and owed.  ECI has standing to bring a claim for 
the liquidated damages against Bradshaw.  As such, Defendants fail to show that they are 
entitled to summary judgment on ECI’s claim for liquidated damages assessed by the City.  
Defendants’ motion for summary judgment on this ground is denied.         
    B.    ECI’s Motion for Summary Judgment                              
    ECI moves the Court for summary judgment as to Bradshaw’s counterclaims.4  

Bradshaw’s counterclaims are as follows: (1) breach-of-contract, (2) wrongful-termination, 
(3) prompt-payment claim, (4) professional-negligence, (5) breach of express and implied 
warranty, (6) misappropriation-of-property, (7) request for attorneys’ fees and (8) a bond 
claim.  ECI contends it is entitled to summary judgment on these claims because the claims 
are either foreclosed by the contract, statutorily barred or not recognized under Minnesota 
law.  Each claim is addressed in turn.                                    

         1.   Breach-of-Contract Claim (Count I)                         
    ECI seeks summary judgment on Bradshaw’s breach-of-contract claim to the extent 
that Bradshaw argues that Bradshaw was entitled to a change order based on the DSC 
claims submitted to ECI.                                                  
    To prevail on a breach-of-contract claim, Bradshaw must show: “(1) formation of a 

contract, (2) performance by [Bradshaw] of any conditions precedent to his right to demand 
performance by [ECI], and (3) breach of the contract by [ECI].”  Lyon Fin. Servs., Inc. v. 
Ill. Paper & Copier Co., 

 (Minn. 2014).                
    Here, the parties dispute the third element—whether ECI breached the Subcontract 
by failing to honor and accept Bradshaw’s DSC claims.  For Bradshaw to succeed in this 

claim against ECI, Bradshaw must establish that its nonperformance was excusable and 
that ECI breached the contract first.  To be excusable, Bradshaw must establish that it was 

4 Travelers also made counterclaims, but ECI does not move for summary judgment on 
those counterclaims at this time.  (Dkt. 336 at 18 n.1.)                  
entitled to a change order.  Under the terms of the Subcontract, Bradshaw is “entitled to an 
equitable adjustment in Contract Price or Contract Times, or both, to the extent [that a 

differing site condition] . . . causes an increase or decrease in [Bradshaw’s] cost of or time 
required for, performance of the Work.”  (Dkt. 338-4 at 14.)  In other words, if Bradshaw 
brings valid DSC claims, Bradshaw is entitled to a change order.          
    ECI contends that Bradshaw’s was not entitled to a change order because (1) 
Bradshaw’s DSC claim notices were improper and (2) Bradshaw cannot meet the elements 
of a Type I DSC claim.                                                    

              a.   Sufficiency of the DSC Notices                        
    The parties dispute whether Bradshaw’s DSC claims were untimely pursuant to the 
terms of the Subcontract.  Bradshaw contends its claims were timely.      
    Under  the  terms  of  the  Subcontract,  if  the  subcontractor  “believes”  it  has 
encountered a differing subsurface condition, the subcontractor must “notify Owner and 

Engineer  in  writing  about  such  condition  no  later than  three  (3)  days  after  the  first 
observance of such condition.”  (Dkt. 338-4 at 13.)5  If written notice is not given as 
required, than the subcontractor “shall not be entitled to any adjustment in the Contract 
Price of Contract Times with respect to [that] subsurface or physical condition.”  (Dkt. 338-
4 at 14.)  The subcontractor “shall not be entitled to any adjustment” if the subcontractor 


5 Bradshaw argues that the contract’s notice provision should not be strictly interpreted.  
This argument is unavailing.  When contract language is “clear and unambiguous,” the 
Court must enforce the contract as written and “should not rewrite, modify, or limit its 
effect by a strained construction.”  Luis v. RBC Cap. Markets, LLC, 

 (8th 
Cir. 2020).                                                               
“failed to give written notice as required.”  (Dkt. 338-4 at 14.)  If a DSC Claim is denied, 
“[a] denial of the Claim shall be final and binding unless within 30 days of the denial the 

other party invokes the procedures set forth in Article 17 for the final resolution of disputes.”  
(Dkt. 338-3 at 66.)                                                       
    Regarding the First DSC Claim, it is undisputed that Bradshaw first observed and 
encountered its first DSC event on November 7, 2019.  But Bradshaw did not submit its 
First DSC Claim to ECI until November 15, 2019.  Even when drawing all reasonable 
inferences in Bradshaw’s favor, the First DSC Claim was untimely.6  Bradshaw was not 

entitled to a change order for the First DSC Claim.                       
    Regarding the Second DSC Claim, ECI contends that the second DSC was first 
observed during Bradshaw’s work when Bradshaw experienced high jacking loads during 
drilling.  According to ECI, the high jacking loads were also observed on December 29, 
2019.  But the record provides that the second DSC could have been first observed on 

January 1, 2020, when Bradshaw decided to stop tunneling.  Bradshaw notified ECI on 
January 4, 2020, which is within the 3-day period and, therefore, timely.  ECI has not 
shown that “there is no genuine dispute as to any material fact” as to when the second DSC 
was first encountered.  Therefore, when all reasonable inferences are drawn in Bradshaw’s 
favor, ECI fails to show that it is entitled to judgment as to a matter of law. 




6 Moreover, this untimely notice was partially acknowledged by Bradshaw.  (See Dkt. 337-
1 at 239.)  Bradshaw’s concerns on the timeliness of the filing led Bradshaw to consult its 
attorney.  (Dkt. 337-1 at 158.)                                           
    In sum, the Court concludes that the First DSC Claim was untimely.  However, a 
genuine dispute as to material facts exists as to whether the Second DSC Claim was 

untimely.                                                                 
              b.   Elements of a DSC Claim                               
    ECI also maintains that Bradshaw cannot meet the elements of a DSC claim under 
Minnesota Law.  Because the Court concludes that the First DSC Claim was untimely, the 
Court evaluates only whether Bradshaw can meet the elements for the Second DSC Claim. 
     It is undisputed that Bradshaw makes a “Type I” DSC claim.  Under Minnesota 

law, to prove a “Type I” DSC claim, a contractor must prove each of the following 
elements:                                                                 
         i. the contract documents must have affirmatively indicated or  
         represented the subsurface conditions which form the basis of   
         the plaintiff’s claim;                                          

         ii. the contractor must have acted as a  reasonably prudent     
         contractor in interpreting the contract documents;              

         iii.  the  contractor  must  have  reasonably  relied  on  the  
         indications of subsurface conditions in the contract;           

         iv. the subsurface conditions actually encountered, within the  
         contract  site  area,  must  have  differed  materially  from  the 
         subsurface conditions indicated in the same contract area;      

         v. the actual subsurface conditions encountered must have been  
         reasonably unforeseeable; and                                   

         vi. the contractor’s claimed excess costs must be shown to be   
         solely  attributable  to  the  materially  different  subsurface 
         conditions within the contract site.                            
Frontier Pipeline, LLC v. Metro. Council, No. A10-1437, 

, at *3–4 
(Minn.  App.  July  25,  2011)  (citing  Rice  Lake  Contracting  Corp.  v.  Rust  Env’t  & 

Infrastructure, Inc., 

 (Minn. App. 2000) .  “A contractor is not eligible 
for  an  equitable adjustment  for a  Type  I  differing  site  condition  unless  the  contract 
indicated what that condition would be.”  Comtrol, Inc. v. United States, 

 (Fed. Cir. 2002); see also Frontier Pipeline, 

, at *3–4.  It is 
undisputed by the parties that the GBR:                                   
       •  Set baselines for geotechnical conditions and material behavior 
         that can be assumed to be encountered during construction;      

       •  Identified important design and construction considerations,   
         key  project  constraints,  and  selected  requirements  to  be 
         addressed  by  contractors  during  bid  preparation  and       
         construction;                                                   

       •  Provided  guidance  to  Owner  and  their  representatives  in 
         administering the Contract;                                     
(Dkt.  347-5  at  4.)    Moreover,  “[t]he  GBR  is  the  sole  document  for  geotechnical 
interpretations for the Project and provides the basis for determining the merit of claims 
for differing site conditions.”  (Dkt. 347-5 at 4.)                       
    It is undisputed that the GBR did not directly address the tunnel voids discussed in 
the Second DSC Claim.  ECI argues that because the GBR does not affirmatively make 
any  representation to  the tunnel  voids  discussed  in Bradshaw’s  Second  DSC  Claim, 
Bradshaw is not entitled to an adjustment.  Bradshaw disagrees, contending that ECI’s 
argument oversimplifies the issues that Bradshaw experienced.  In support of this argument, 
Bradshaw asserts that the tunnel voids are directly tied the ground water inflows, which 
were discussed in the GBR, and thus were represented in the GBR.          

    As the GBR does not address the tunnel voids, “it cannot be said that [Bradshaw] 
encountered  conditions  materially  differing  from  those  specifically  indicated  in  the 
specification.”  See Comtrol, Inc., 

.  Moreover, Bradshaw’s attempts 
to tie the tunnel voids with the ground water inflows representations are unavailing because 
Bradshaw fails to provide any factual or legal support for this claim.  Because ECI has met 
its burden of production, Bradshaw “must do more than simply show that there is some 

metaphysical doubt as to the material facts.”  Scott, 

.  However, Bradshaw 
fails to do so.  As such, ECI has established that it is entitled to judgment as a matter of 
law on the Second DSC Claim.  The Court, therefore, grants ECI’s Motion for Summary 
Judgment on this issue.                                                   
    Bradshaw failed to raise the First DSC Claim in a timely manner.  And pertaining 

to the Second DSC Claim, the GBR does not address tunnel voids.  Accordingly, the Court 
grants ECI summary judgment on Bradshaw’s breach-of-contract claim against ECI. 
         2.   Wrongful-Termination Claim (Count II)                      
    Bradshaw argues that ECI wrongfully terminated Bradshaw.  ECI presents two 
arguments in its defense.  ECI contends that the Subcontract entitled ECI to terminate 

Bradshaw’s  employment  “for  cause.”    Alternatively,  ECI  maintains  that  Bradshaw’s 
wrongful  termination  claim  fails  because  ECI  was  entitled  to  terminate  Bradshaw’s 
employment “for convenience.”                                             
    The Subcontract provides “Contractor may terminate or suspend Subcontractor’s 
Work, all or in part, if Owner terminates any Work, upon Subcontractor’s material breach, 

or for convenience.  Subcontractor shall be in material breach if, after five (5) days’ written 
notice,  Subcontractor . . . unreasonably  fails  to  complete  or  proceed  with  Work  per 
schedule; [or] tells Contractor that it will not perform.”  (Dkt. 347-6 at 5.)  
    ECI contends that it was entitled to terminate Bradshaw for cause for two reasons: 
Bradshaw unreasonably failed to complete or proceed with the work according to the 
schedule and Bradshaw stated it would not perform its work.  ECI, however, provides no 

support to show that the delays were unreasonable.  Moreover, Bradshaw presents evidence 
that Bradshaw persistently attempted to microtunnel despite the struggles it encountered.  
Additionally, Bradshaw did not state that it would not perform its work.  Bradshaw 
informed ECI that it would stop its tunneling operations while Bradshaw and outside 
experts “investigated to determine the best solution,” and Bradshaw sought guidance from 

ECI and the City on how to proceed.                                       
    Alternatively,  ECI’s  argues  that  it  was  entitled  to  terminate  Bradshaw  “for 
convenience.”  This argument is unavailing because ECI never invoked this clause.  The 
record establishes that ECI terminated Bradshaw “for cause.”  But ECI did not invoke the 
“for convenience” clause.  Moreover, ECI cites no case law to support its contention that 

it is entitled to judgment as a matter of law when a “for convenience” clause exists but is 
not invoked.  As such, ECI’s motion for summary judgment on Bradshaw’s wrongful 
termination claim is denied.                                              
         3.   Prompt-Payment Claim (Count III)                           
    Bradshaw contends that ECI violated 

(3) by failing to pay 1.5% 

in interest on any payment amount owed as of January 9, 2020.  ECI argues that it does not 
owe any interest because the statute only provides interest for undisputed services provided 
and ECI contends that Bradshaw’s services are still in dispute.  A prime contractor is 
required to:                                                              
         to  promptly  pay  any  subcontractor  . . . within  ten  days  of 
         receipt by the party responsible for payment of payment for     
         undisputed  services  provided  by  the  party  requesting      
         payment . . . . The contract shall be deemed to require the party 
         responsible for payment to pay interest of 1-1/2 percent per    
         month  to  the party  requesting  payment  on  any undisputed   
         amount not paid on time . . . . A party requesting payment who  
         prevails in a civil action to collect interest penalties . . . must 
         be awarded its costs and disbursements, including attorney fees   

(3).  To prevail, Bradshaw must prove at trial that it requested payment 
from ECI for undisputed services and that ECI failed to pay Bradshaw services within ten 
days of receiving that request.  See Meyer Contracting, Inc. v. Fowler, No. A18-0785, 

 at *3 (Minn. Ct. App. 2019).  ECI claims that summary judgment should be 
granted because all of Bradshaw’s work is disputed.  And because the work is still disputed, 
ECI  argues  that  Bradshaw  is  not  entitled  to  interest  under  

(3). 
Bradshaw argues that interest is owed for a late payment that was due on January 10, 2020, 
but paid on February 6, 2020.                                             
    Although  ECI  argues  that  all  of  Bradshaw’s  work  is  disputed,    the  summary 
judgment record fails to establish that there are no outstanding payments still owed to 
Bradshaw.   Accordingly, ECI’s motion for summary judgment on Bradshaw’s prompt-
payment claim is denied.                                                  

         4.   Professional-Negligence Claim (Count IV)                   
    Bradshaw  contends  that  ECI  committed  professional  negligence  in  ECI’s 
construction of the launch shaft.  Summary judgment should be granted, ECI argues, 
because Bradshaw fails to establish a prima facie case of professional negligence under 

, subd. 2 as Bradshaw failed to provide two expert disclosures as 
required to bring such claims.  Bradshaw agrees that that summary judgment is appropriate 

because it failed to meet the pleading requirements.  ECI’s motion for summary judgment 
regarding Bradshaw’s professional-negligence claim is granted.            
         5.   Warranty Claim (Count V)                                   
    Bradshaw contends that ECI breached both express and implied warranties of their 
contract.  ECI argues Bradshaw’s arguments fail for two reasons: (1) ECI expressly 

disclaimed any warranties regarding the subsurface conditions and (2) Bradshaw was 
responsible for its own means and methods, so no warranty was implied.  (Dkt. 336 at 33.) 
    ECI argues that the Contract Documents disclaimed all express and implied 
warranties regarding the subsurface conditions.  In support of this argument, ECI points 
to Sections 5.03(C)(3), 5.03(C)(6), and 5.03(C)(9) from the Supplementary Conditions.   

Section 5.03(C)(6) provides the warranty statement states:                
         Neither Owner, Engineer, nor geotechnical or other consultant   
         warrants or guarantees that actual subsurface conditions will   
         be as described in the GBR, nor is the GBR intended to warrant  
         or  guarantee  the  use  of  specific  means  or  methods  of   
         construction.                                                   
(Dkt. 338-4 at 11.) (emphasis added).  ECI is commonly referred to as “Contractor” within 
the Contract Documents.7  As ECI does not expressly disclaim these warranties, the Court 
concludes summary judgment is not appropriate.                            
    ECI argues that regardless of any warranty, Bradshaw was solely responsible for the 

means, methods, techniques, sequences, and procedures of performing its microtunneling 
work thus no warranty was implied.  Bradshaw, however, provides that it was bound to 
build in accordance with the City’s specifications.                       
    “[W]here one party furnishes specifications and plans for a contractor to follow in 
a construction job, he thereby impliedly warrants their sufficiency for the purposes implicit 
therein and whether the builder has been damaged in proceeding with the work in reliance 

on such an implied warranty or whether he was damaged in relying on the warranty in 
making his bid, he may recover.”  Granite Re, Inc. v. City of La Crescent, No. 08-cv-
441(RHK/RLE), 

, at *8 (D. Minn. Sept. 11, 2009) (citing McCree & Co. 
v. State, 

 (Minn. 1958)).                               
      In the Standard General Conditions of the Construction Contract, Bradshaw is 

solely responsible for the “means, methods, techniques, sequences, and procedures” of 
performing its microtunneling work.  However, excerpts from the Project Manual provide 
the manner that Bradshaw was required to perform its work.  In viewing evidence in the 
light most favorable to the Bradshaw, ECI fails to show that it is “entitled to judgment as 


7 Similarly, the GBR only states: “The contractual baselines do not represent warranties by 
Owner of the actual subsurface conditions that will be encountered by Contractor.”  (Dkt. 
338-1 at 60.)                                                             
a matter of law” as to whether Bradshaw had discretion to deviate from the specifications 
provided.  Accordingly, ECI’s motion for summary judgment on Bradshaw’s express and 

implied warranties claims is denied.                                      
         6.   Misappropriation of Property (Count VI)                    
    Bradshaw  brings  a  claim  for  misappropriation  of  property,  arguing  that  ECI 
improperly refused to allow Bradshaw onto the Project site to recover its equipment that 
remained  on-site.  ECI  argues  that  misappropriation  of  property  is  not  a  tort  that  is 
recognized by Minnesota law.                                              

    Minnesota does not recognize the common law tort of misappropriation of property.  
In support of its claim that misappropriation of property exists, Bradshaw cites to State v. 
Kiewel, 

 (Minn. 1928).  (Dkt. 345 at 42.)  However, Kiewel is a criminal 
matter that addresses embezzlement.  Bradshaw also incorrectly cites to World Data 
Products, Inc. v. Keefe, No. C2-99-644, 

, *4 (Minn. Ct. App. 1999), 

which addresses misappropriation of trade secrets, and RMG Partners, LLC v. Arctic Cat 
Sales Inc., Case No. 20-CV-609 (NEB/LIB), 

, *1 (D. Minn. Sept. 16, 
2021), which addresses misappropriation of intellectual property.  None of these cases 
stand for Bradshaw’s position that Minnesota recognizes misappropriation of property as 
a  tort.    Accordingly,  ECI’s  motion  for  summary  judgment  on  Bradshaw’s 

misappropriation-of-property claim is granted.                            
         7.   Bond Claim (Count VIII)                                    
    Bradshaw’s bond claim seeks to recover from a payment bond owned by ECI.  ECI 
argues that Bradshaw’s bond claim fails because payment can only be made when a claim 
is substantiated.  Bradshaw contests this claim by arguing that the bond is a guarantor of 
performance by ECI.  Bradshaw argues that if one of its other counterclaims move forward, 

Bradshaw’s bond claim should move forward as well because the bond serves as guarantor 
of ECI’s obligations.                                                     
    Under 

,                                          
         a contract with a public body for the doing of any public work  
         is not valid unless the contractor gives (1) a performance bond 
         to the public body with whom the contractor entered into the    
         contract, for the use and benefit of the public body to complete 
         the contract according to its terms, and conditioned on saving  
         the public body harmless from all costs and charges that may    
         accrue on account of completing the specified work, and (2) a   
         payment bond for the use and benefit of all persons furnishing  
         labor and materials engaged under, or to perform the contract,  
         conditioned for the payment, as they become due, of all just    
         claims for the labor and materials                              

Here, because some of Bradshaw’s claims survive summary judgment, ECI’s summary 
judgment motion on Bradshaw’s bond claim is denied.                       
         8.   Attorneys’ Fees Claim (Count VII)                          
    Bradshaw  seeks  attorneys’  fees.    ECI  maintains  that  attorneys’  fees  are  not 
recoverable unless authorized by contract or by statute.  Bradshaw is not seeking attorneys’ 
fees pursuant to the Subcontract.  Rather Bradshaw contends that fees are statutorily 
mandated under 

.  Under the statute, reasonable attorneys’ fees, costs, 
and disbursements may be awarded in an action to enforce claims under the act if the action 
is successfully maintained or successfully appealed.  

. 
    Here, because Bradshaw’s bond claim survives summary judgment, Bradshaw’s 
attorneys’ fee claim survives as well.  Accordingly, ECI’s summary judgment motion on 

Bradshaw’s attorneys’ fees claim is denied.                               

    Based on the foregoing analysis and all the files, records and proceedings herein, IT 
IS HEREBY ORDERED:                                                        

    1.   Defendants’ motion to exclude the testimony of Arthur McGinn, (Dkt. 309), 
         is DENIED;                                                      
    2.   Defendants’ motion to exclude the testimony of Mark Gentry, (Dkt. 315), is 
         DENIED;                                                         
    3.   ECI’s motion to exclude the testimony of Donald Bergman, (Dkt. 328), is 
         GRANTED   to  the  extent  that  he  will  be  opining  on  engineering  and 
         geological topics beyond his area of expertise and DENIED in all other 
         respects;                                                       
    4.   ECI’s motion to exclude the testimony of Kimberlie Staheli, (Dkt. 328), is 
         DENIED;                                                         
    5.   ECI’s  motion  to  exclude  the  testimony  of  Scott  Bender,  (Dkt.  328),  is 
         DENIED;                                                         
    6.   Defendant’s motion for summary judgment, (Dkt. 323), is DENIED; and 
    7.   ECI’s motion for summary judgment, (Dkt. 334), is GRANTED in part and 
         DENIED in part as addressed herein.                             

LET JUDGMENT BE ENTERED ACCORDINGLY.                                      
Dated: September 25, 2023       s/Wilhelmina M. Wright                                  
                                Wilhelmina M. Wright                     
                                United States District Judge             

                 UNITED STATES DISTRICT COURT                            
                    DISTRICT OF MINNESOTA                                


Engineering & Construction Innovations,  Case No. 20-cv-0808 (WMW/TNL)   
Inc.,                                                                    

     Plaintiff/Counterclaim-Defendant,      ORDER                        

v.                                                                       

Bradshaw Construction Corporation, and                                   
Travelers Casualty and Surety Company of                                 
America,                                                                 

     Defendants/Counterclaim-Plaintiffs,                                 

v.                                                                       

Fidelity and Deposit Company of                                          
Maryland, and Zurich American Insurance                                  
Company,                                                                 

            Counterclaim-Defendants.                                     
    This matter is before the Court on the parties’ cross-motions to exclude expert 
testimony, (Dkts. 309, 315, 328), and cross-motions for summary judgment (Dkts. 323, 
334).  For the reasons addressed in this Order, Defendants’ motion to exclude the testimony 
of Arthur McGinn is denied; Defendants’ motion to exclude the testimony of Mark Gentry 
is denied; Engineering & Construction Innovations, Inc.’s (“ECI”) motion to exclude the 
testimony  of  Donald  Bergman  is  granted  to  the  extent  that  Bergman’s  opinions  on 
engineering and geological topics are beyond his area of expertise and denied in all other 
respects; ECI’s motion to exclude the testimony of Kimberlie Staheli is denied; and ECI’s 
motion to exclude the testimony of Scott Bender is denied.  As addressed in this Order, 
Defendants’ motion for summary judgment is denied, and ECI’s motion for summary 
judgment is granted in part and denied in part.                           

                         BACKGROUND                                      
I.   The 10th Avenue Water Main River Crossing Project                    
    The  City  of  Minneapolis  (“City”)  planned  to  install  a  water  main  under  the 
Mississippi River as part of the City’s 10th Avenue Water Main River Crossing Project 
(“Project”).  The Project required the construction of a microtunnel through the sandstone 
beneath the Mississippi River.  Microtunneling is a form of mechanized tunnel construction 

that uses a remote-controlled microtunnel boring machine (“MTBM”) to construct a tunnel 
and simultaneously install pipe casing with minimal disruption to the ground above.  
    To  prepare  for  the  Project,  Black  &  Veatch  Corporation  (“Black  &  Veatch”) 
conducted a geotechnical investigation of the Project Site and prepared two geotechnical 
reports.  The Geotechnical Data Report (“GDR”) presented factual details, data and the 

result  of  the  investigation.    The  Geotechnical  Baseline  Report  (“GBR”)  took  the 
information  in  the  GDR  and  established  a  “contractual  statement  of  the  subsurface 
conditions” on the Project Site, “referred to as the baseline conditions.”  (Dkt. 338-1 at 57.)  
The GBR expressly “establishes the allocation of risk between Contractor and Owner for 
the  actual  conditions  encountered.”   (Id.  at  60.)   If  the  actual  subsurface  conditions 

materially differ from the subsurface conditions as expressly described in the GBR, the 
contractor can make a claim for a differing site condition (“DSC”).1  The GBR “provides 
the basis for determining the merit of claims for differing site conditions.”  (Id.)  These 

documents were published to bidders on the Project and expressly included in the contract 
documents.                                                                
    ECI successfully bid on the Project and, in March 2019, ECI entered into an 
agreement (“Prime Contract”) with the City.  Under the Prime Contract, ECI agreed to 
“provide all materials, labor, equipment and incidentals necessary for the 10th Avenue 
Water Main River Crossing Project, all in accordance with the bid specifications[.]”  (Dkt. 

338-1 at 33.)  ECI decided to subcontract the microtunneling portion of the work to another 
party.  In soliciting bids for the microtunneling work, ECI provided bidding subcontractors 
instructions that incorporated the Project’s specifications and included the GDR and GBR.  
    Bradshaw Construction Corporation (“Bradshaw”) submitted a successful bid for 
the microtunneling work on the Project, and ECI and Bradshaw entered into an agreement 

on May 30, 2019 (“Subcontract”).  Under the Subcontract, Bradshaw agreed “to provide 
all labor, materials, services, and equipment to perform the following scope of work on the 
Project: Install 60” steel Casing via Microtunneling.”  (Dkt. 338-3 at 2.)  As part of the 
Subcontract,  Bradshaw  was  “solely  responsible  for  the  means,  methods,  techniques, 
sequences, and procedures” of performing its microtunneling work.”  (Id. at 44.)  The 

Subcontract’s estimated schedule called for Bradshaw to achieve substantial completion of 


1 “Differing Site Condition” occurs when a construction contractor encounters a subsurface 
or  otherwise  concealed  site  condition  that  differs  materially  from  what  the  contract 
indicated or from what would normally be expected.                        
the work by November 22, 2019.  ECI agreed to pay Bradshaw approximately $2.6 million 
upon completion of the Subcontract.                                       

II.  The Microtunneling Work                                              
    Around  October  2019,  Bradshaw’s  portion  of  the  work  began.    Bradshaw 
constructed the concrete head wall—a structure that would be used to launch the MTBM.  
After the completion of the concrete head wall, Bradshaw commenced the microtunneling 
process on November 7, 2019.  That evening, groundwater unexpectedly penetrated the 
shaft and flooded the tunnel.  The groundwater overwhelmed the pumps in the shaft and 

submerged the tunneling equipment, which forced Bradshaw to stop tunneling.  
    A.   Change Orders and DSC Claims                                    
    As part of the Standard General Conditions of the Construction Contract, any 
changes in time or prices required a change order.  Moreover, in making a DSC claim, the 
contractor “shall, promptly after becoming aware thereof and before further disturbing the 

subsurface conditions or performing any work in connection therewith . . . notify Owner 
and Engineer in writing about such condition no later than three (3) days after the first 
observance of such condition.”  Additionally, a contractor “shall not be entitled to any 
adjustment in the Contract Price or Contract Times with respect to a subsurface or physical 
condition if . . . [the] Contractor failed to give the written notice as required.”  (Dkt. 338-4 

at 14.)                                                                   
    On November 15, 2019, Bradshaw sent a letter to ECI:                 
         Due to the groundwater flows encountered on the project being   
         in excess of what is indicated in the Geotechnical Baseline     
         Report, please accept this letter as notification of differing site 
         conditions. Bradshaw hereby reserves the right to claim for the 
         extra costs and extra time associated with these differing site 
         conditions.                                                     

         Please forward this notification on to the owner/engineer. I am 
         available to discuss this matter at your convenience.           

(“First DSC Claim”) (Id. at 30).                                          
    On November 16, 2019, an internal email between Bradshaw employees stated: 
         I just found in the Supplementary Conditions there is a 3 day   
         notice provision for a DSC claim. Why do you think it is 14     
         days? I hope so we arguably have lost any claim rights for this 
         flood that we may have had.                                     
(Dkt. 337-1 at 239.)  Around November 26, 2019, Bradshaw employees discussed this 
issue with Bradshaw’s attorney, who also advised that the claim needed to be submitted to 
Black & Veatch and the City.  Shortly, thereafter, Bradshaw submitted the First DSC Claim 
to Black & Veatch and the City.                                           
    On November 23, 2019, Bradshaw recommenced microtunneling but stopped on 
December 6, 2019, because of a second flood.  On December 13, 2019, Black & Veatch 
rejected the First DSC Claim.  Black & Veatch determined the cause of the flooding was 
not due to differing subsurface conditions.  Instead, Black & Veatch determined that the 
failure of the concrete head wall caused the flooding.  On December 18, 2019, Bradshaw 
appealed Black & Veatch’s denial.  Black  & Veatch rejected Bradshaw’s appeal on 
February 4, 2020.                                                         
    On December 29, 2019, Bradshaw resumed tunneling.  After a few feet, Bradshaw 
encountered high jacking loads2 that prevented Bradshaw from making any significant 

progress.  On January 1, 2020, Bradshaw decided to stop tunneling.  On January 4, 2020, 
Bradshaw submitted another DSC claim (“Second DSC Claim”), which Black & Veatch 
denied on February 13, 2020.                                              
    Pursuant to the Prime Contract, the City issued a Notice of Request for Replacement 
Microtunneling Subcontractor to ECI on February 25, 2020.  ECI terminated Bradshaw the 
following  day,  alleging  material  breaches  of  contract.    ECI  subsequently  engaged 

Akermann, Inc., to complete the Project.                                  
III.  The Lawsuit                                                         
    In March 2020, ECI sued Bradshaw and Travelers, Bradshaw’s surety, in Hennepin 
County District Court.  Defendants subsequently removed the case to the United States 
District Court for the District of Minnesota.  In answering the complaint, Bradshaw brought 

eight counterclaims against ECI.                                          
    On November 21, 2022, Defendants moved to exclude the expert testimony of 
Arthur  McGinn  and  Mark  Gentry.    ECI  subsequently  moved  to  exclude  the  expert 
testimony of Donald Bergman, Kimberlie Staheli and Scott Bender.  Defendants also 
moved  for  partial  summary  judgment  as  to  certain  damages  ECI  that  ECI  contends 

Bradshaw owes.  ECI moved for summary judgment motion on Bradshaw’s crossclaims. 


2 High jacking loads are a severe counterforce that could damage the MTBM if the 
microtunneling continued.                                                 
IV.  Relevant Portion of the Contracts                                    
Section 18.09 of the Prime Contract states:                               
         The parties also recognize the delays, expenses, and difficulties 
         involved in proving in a legal or arbitration proceeding the    
         actual loss suffered by Owner if the Work is not completed on   
         time.  Accordingly, instead of requiring any such proof, Owner  
         and Contractor agree that as liquidated damages for delay (but  
         not as a penalty) contractor shall pay Owner [$5,000 per day if 
         the work is not substantially complete].                        

(Dkt. 326-5 at 27.)  Section 2(c) of the Subcontract states:              

         If the Contract Documents provide for liquidated damages,       
         then Subcontractor will be responsible for the portion of such  
         liquidated  damages  caused  by  Subcontractor’s  delayed  or   
         deficient work pursuant to the Indemnifications paragraph (¶ 6) 
         that Subcontractor agrees are reasonable.                       

(Dkt. 326-8 at 2.)  Section 6 of the Subcontract provides that:           

         Subcontractor  will  defend,  indemnify  and  save  harmless    
         Contractor and Owner, and their respective officers, directors  
         and agents, to the fullest extent of the law, from any and all  
         claims, damages, and expenses, in whole or part, including      
         costs, expert fees, and reasonable attorney’s fees, bodily injury 
         or  property  damage,  arising  or  in  any  way  resulting     
         from . . . [a]ny  other  liability  to  Owner  or  Contractor  that 
         Subcontractor caused including Liquidated Damages.              

(Dkt.  326-8  at  5.)    And  under  section  9  of  the  Subcontract,  “[u]pon  breach, 
Contractor . . . may charge to [Subcontractor] any cost to complete, correct or becomes 
owed to Owner, plus damages from delay or disruption, plus liquidated or actual damages 
caused by Subcontractor’s breach.”  (Dkt. 326-8 at 6.)                    
    ECI  argues  that  Bradshaw  owes  ECI  $7,575,651  in  total  damages,  which  is 
comprised of $250,691 in Additional ECI Pre-Termination Costs, $3,245,562 in Additional 
ECI  Microtunneling  Related  Costs  and  $1,246,168  in  Extended  General  Conditions 
damages. It also includes Overhead and Profit of $785,819 and City of Minneapolis 

Damages of $2,047,411.  The category identified as “City of Minneapolis Damages” 
represents the portion of liquidated damages for which Defendants are allegedly liable.  
The “Extended General Conditions” damages are the daily costs expended from the delay. 
                           ANALYSIS                                      
I.   Daubert Motions                                                      
    The admissibility of expert testimony presents an issue of law governed by Federal 

Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 

 
(1993).  Rule 702 provides:                                               
         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.                                     

Fed. R. Evid. 702.  “An expert may base an opinion on facts or data in the case that the 
expert has been made aware of or personally observed.”  Fed. R. Evid. 703.  “If experts in 
the particular field would reasonably rely on those kinds of facts or data in forming an 
opinion on the subject, they need not be admissible for the opinion to be admitted.”  

 
    The proponent of expert testimony must prove its admissibility by a preponderance 
of the evidence.  Lauzon v. Senco Prods., Inc., 

 (8th Cir. 2001).  “Rule 

702 reflects an attempt to liberalize the rules governing the admission of expert testimony” 
and  favors  admission  over  exclusion.    

  (internal  quotation  marks  omitted).    The 
determination as to the admissibility of expert testimony is within a district court’s sound 
discretion.  See Arkwright Mut. Ins. Co. v. Gwinner Oil, Inc., 

 (8th Cir. 
1997).                                                                    
    A district court must ensure that testimony admitted under Rule 702 “is not only 

relevant,  but  reliable.”    Daubert,  

.    When  making  the  reliability 
determination, a court may evaluate whether the expert’s method has been tested or 
subjected to peer review and publication, the method’s known or potential rate of error, 
and the method’s general acceptance.  Presley v. Lakewood Eng’g & Mfg. Co., 

 (8th Cir. 2009) (citing Daubert, 509 U.S. at 593–94).  These factors are not 

exhaustive, and a court must evaluate the reliability of expert testimony based on the facts 
of the case.  

  A court also may consider “whether the expertise was developed for 
litigation or naturally flowed from the expert’s research; whether the proposed expert ruled 
out other alternative explanations; and whether the proposed expert sufficiently connected 
the proposed testimony with the facts of the case.”  Sappington v. Skyjack, Inc., 

 (8th Cir. 2008) (internal quotation marks omitted).  When weighing these factors, 
a district court must function as a gatekeeper to separate “expert opinion evidence based 
on ‘good grounds’ from subjective speculation that masquerades as scientific knowledge.”  
Glastetter v. Novartis Pharm. Corp., 

, 989 (8th Cir. 2001).   
    Expert testimony is not admissible if it is “speculative, unsupported by sufficient 
facts, or contrary to the facts of the case,” Marmo v. Tyson Fresh Meats, Inc., 

 (8th Cir. 2006), such that the testimony is “so fundamentally unsupported that it 
can offer no assistance to the jury,” Minn. Supply Co. v. Raymond Corp., 

, 
544 (8th Cir. 2006) (internal quotation marks omitted).  But disputes about the factual basis 
of an expert’s testimony ordinarily implicate the credibility—not the admissibility—of the 
testimony.  Sappington, 

; see also Minn. Supply Co., 472 F.3d at 544. 
    Both parties move to exclude expert testimony.  Defendants move to exclude the 

expert testimony of Arthur McGinn and Mark Gentry.  ECI moves to exclude the expert 
testimony of Donald Bergman, Kimberlie Staheli and Scott Bender.          
    A.   Arthur McGinn                                                   
         1.   McGinn’s Qualifications                                    
    Arthur McGinn is an engineer that ECI retained as an expert.  Defendants argue that 

McGinn is not qualified to testify as an expert witness regarding microtunneling and his 
testimony  should  be  excluded  entirely  because  McGinn  has  worked  on  only  two 
microtunneling projects in the past.  ECI disagrees, highlighting McGinn’s credentials and 
arguing that any limited experience goes to the weight of the testimonial evidence not 
McGinn’s qualifications to testify as an expert witness.                  

    McGinn  has  a  Ph.D.  in  Geotechnical  Engineering,  a  master’s  degree  in  civil 
engineering and is professionally licensed in six states and the District of Columbia.  
McGinn has over 25  years of relevant work experience, and he  has worked on two 
microtunneling projects in the past.  Based on McGinn’s “knowledge, skill, training [and] 
education,” the Court concludes that McGinn qualifies as an expert.  Fed. R. Evid. 702.  
Any gaps in McGinn’s experience in microtunneling go to the weight of his opinion, not 

to its admissibility.  See Robinson v. GEICO Gen. Ins. Co., 

 (8th Cir. 
2006).  Accordingly, the Court denies Defendants’ motion to exclude McGinn’s testimony 
as it pertains to this argument.                                          
         2.   McGinn’s Testimony on Ground Permeability and Muck Ring    
              Return Rates                                               
    Alternatively, Defendants contend that McGinn’s testimony on the topics of ground 
permeability and muck ring return rates should be excluded because McGinn’s testimony 
is unreliable.  Defendants maintain that McGinn failed to adequately disclose the basis for 
his opinion as required by Rule 26(a)(2)(b), Fed. R. Civ. P.  ECI responds that McGinn’s 

opinions are adequately supported by the record.  ECI also argues that Defendants’ Daubert 
motion is a veiled discovery motion that should have been brought by October 21, 2022.  
    Here, it is unclear if Defendants brought this motion to exclude testimony under 
Rule 702, Fed. R. Evid., or Rule 37(a), Fed. R. Civ. P. Defendants’ arguments begin with 
a reference to Fed. R. Evid. 702, but the argument pivots to an exclusion analysis under 

Rule 37(a), Fed. R. Civ. P.  In their response memorandum, Defendants clarify that they 
are arguing that exclusion is required under Fed. R. Evid. 702.  But Defendants provide no 
corrected analysis.                                                       
    To the extent that Defendants argue that exclusion is required under Rule 702, Fed. 
R. Evid., there is no basis for exclusion.  Expert testimony is not admissible if it is 

“speculative, unsupported by sufficient facts, or contrary to the facts of the case,” Marmo, 

, such that it is “so fundamentally unsupported that it can offer no assistance 
to the jury,” Minn. Supply Co., 472 F.3d at 544.  At his deposition, McGinn testified that 

his conclusions regarding ground permeability and muck ring return rate were based on 
calculations that he performed in connection with other projections that were located near 
the Project site in this case.  As such, the Court concludes that McGinn’s testimony is based 
on  sufficient  facts  and  data.    Therefore,  Defendants’  motion  to  exclude  McGinn’s 
testimony on this ground is denied.                                       
    To the extent that Defendants rely on Rule 37(a), Fed. R. Civ. P., this motion to 

strike is untimely.  The scheduling order required “[a]ll non-dispositive motions and 
supporting documents which relate to expert discovery [to] be filed and served on or before 
October 21, 2022.”  (Dkt. 288 ¶ 4.)  Defendants brought this motion on November 21, 
2022.  Defendants offer no explanation for the untimely filing.  Therefore, to the extent 
that Defendants move to strike under Rule 37(a), the motion is denied.    

    B.   Mark Gentry                                                     
    Mark Gentry is ECI’s scheduling and damages expert.  Defendants seek to exclude 
Gentry’s expert testimony, arguing that Gentry’s damages calculation is inconsistent with 
the Subcontract and established damages principles.  Particularly, Defendants challenge 
Gentry’s inclusion of ECI’s lost Overhead and Profit in the overall calculation.  Exclusion 

is unwarranted, ECI argues, because Gentry’s calculation is fundamentally supported.  
    First, Defendants contend that Gentry’s calculation is not based on sufficient facts 
or data because the calculation is inconsistent with the Subcontract.  This argument is based 
on Defendants’ interpretation of the contract, which is an issue for the trier of fact.  Such 
disputes are not properly resolved in the context of a Daubert motion.    

    Second,  Defendants  maintain  that  Gentry’s  calculation  is  fundamentally 
unsupported by the record because Gentry simply relies on ECI’s calculations.  Defendants 
take issue with Gentry’s reliance on the 16.57% rate for ECI’s Overhead and Profits 
calculated by ECI’s former chief financial officer.  ECI contends this rate was derived from 
discussion with the former CFO and review of the Project’s financial records.  This 
challenge  to  the  factual  basis  of  Gentry’s  conclusions  implicates  credibility,  not  the 

admissibility, of the testimony.  See Sappington, 

.  As such, the Court denies 
Defendants’ motion to exclude Gentry’s testimony.                         
    C.   Donald Bergman                                                  
    Donald Bergman is the Chief Estimator for Frank Coluccio Construction Company 
and has experience in planning and bidding on microtunneling projects.  Defendants 

retained Bergman for the purpose of explaining the technical language of the industry.  ECI 
argues that Bergman’s testimony should be limited to the reasonableness of Bradshaw’s 
bid on the project.  ECI maintains that Bergman’s expert report provides inadmissible legal 
conclusions, unqualified opinions on engineering and geological topics, improper opinions 
on whether the DSC claims were properly rejected, an unhelpful recitation of the facts, and  

irrelevant opinions regarding Test Borings.  Defendants do not dispute that Bergman 
cannot provide inadmissible legal conclusions.  But Defendants oppose the motion to 
exclude Bergman’s testimony, arguing that they will not illicit any inadmissible legal 
conclusions at trial.  Defendants contend that Bergman’s testimony on these other subjects 
is admissible.  These issues are addressed in turn.                       

         1.   Inadmissible Legal Conclusions                             
    Portions of Bergman’s expert testimony should be excluded because he provides 
inadmissible legal conclusions, ECI contends.  “As a general rule, questions of law are the 
subject of the court’s instructions and not the subject of expert testimony.”  United States 
v. Klaphake, 

 (8th Cir. 1995) (internal quotation marks omitted); accord 
S. Pine Helicopters, Inc. v. Phoenix Aviation Managers, Inc., 

, 841 (8th Cir. 

2003) (“[E]xpert testimony on legal matters is not admissible.”).  Expert testimony about 
the requirements of the law is improper because it “would give the appearance that the 
court was shifting to witnesses the responsibility to decide the case.”  Portz v. St. Cloud 
State Univ., 

 (D. Minn. 2018) (internal quotation omitted).  The 
construction of the terms and conditions of written contracts presents an issue of law for 

the trial court to determine.  Weitz Co. v. Lexington Ins. Co., 

 (8th Cir. 
2015).                                                                    
    Here, both parties agree that Bergman’s legal conclusions are inadmissible.  ECI’s 
arguments are broadly stated and do not identify the legal conclusions that it seeks to 
exclude.  Moreover, Defendants maintain that they will avoid eliciting these statements 

from Bergman.  As there is no dispute before the Court at this time, the Court denies the 
motion as moot.                                                           
         2.   Opinions on Engineering and Geological Topics              
    ECI seeks to exclude Bergman’s opinions regarding engineering and geological 

topics, arguing that Bergman is unqualified to speak on these topics.  ECI challenges 
Bergman’s conclusions regarding the shaft constructed by ECI and seal constructed by 
Bradshaw.  Bergman has five decades of experience in the planning and bidding on 
microtunneling projects.  The extent to which this work  pertains to engineering and 
geological topics is unclear.  Bergman concedes that “[he is] not a [professional engineer], 
[he is] not a hydrologist, nor [is he] a geological [professional engineer].”  (Dkt. 332-1 at 

132:10-132:19.)  Nothing in the record establishes that Bergman’s opinions are supported 
by any scientific, technical or specialized knowledge that would help the trier of fact 
understand the evidence or determine a fact at issue.  See Fed. R. Evid. 702.  Rather, 
Bergman’s opinions are based on his own personal opinions and conclusions from his 
review  of  documents  and  photos  provided  to  him.    The  record  is  insufficient  as  to 

Bergman’s  qualifications  to  opine  on  these  two  topics  and  how  he  arrived  at  his 
conclusions.  Accordingly, the Court concludes that Bergman lacks the background to 
opine on engineering and geological topics.  For these reasons, ECI’s motion to exclude 
Bergman’s testimony on engineering and geological topics is granted.      
         3.   Opinions on Whether DSC Claims Were Properly Rejected      

    ECI seeks to exclude all of Bergman’s testimony regarding DSC claims because 
Bergman did not evaluate what the actual subsurface conditions were.  Specifically, ECI 
takes issue with Bergman’s opinions on whether the DSC claims have been properly filed 
and whether the claims have been responded to properly.  Bergman has over 28 years of 
experience in addressing DSC claims.  Bergman’s DSC opinions are formed from his 
review of the claim and his understanding of industry practices.  Based on his work 

experience with DSC claims, the Court concludes that Bergman is qualified to opine on 
the DSC claims.  Moreover, knowledge and methodology pertain to the weight that the 
jury accords Bergman’s testimony, not its admissibility.  See Miles v. Gen Motors Corp., 

 (8th Cir. 2001).  ECI’s motion to exclude Bergman’s DSC testimony is 
denied.                                                                   
         4.   Statements Regarding Facts                                 

    ECI argues that Bergman’s testimony is unhelpful because he merely recites the 
factual record and, for this reason, ECI seeks to exclude Bergman’s statements regarding 
facts.  “[A]n expert who simply ‘draws inferences or reaches conclusions within the jury’s 
competence’ does not provide ‘helpful testimony’ under Rule 702.”  Somnis v. Country 
Mut. Ins. Co., 

 (D. Minn. 2012) (citing Nichols v. Am. Nat’l 

Ins. Co., 

 (8th Cir. 1998)).  Because expert evidence can be both powerful 
and quite misleading, the Court must be particularly careful to exclude expert testimony if 
it might lead the jury to simply rely on the expert’s opinion and “surrender its own common 
sense.”  Westcott v. Crinklaw, 

 (8th Cir. 1995).         
    The parties agree that Bergman cannot simply recite the facts.  They disagree, 

however, as to the extent that Bergman is doing so.  Defendants maintain that Bergman’s 
recitation of the facts provides the foundation for his opinions.  But it is difficult to ascertain 
at this time what specific facts Bergman will be stating to the jury and what facts he will 
be providing as the foundation for his opinion.  This dispute is more appropriately resolved 
at trial.  Therefore, ECI’s motion to exclude Bergman’s testimony that simply recites facts 
is denied.                                                                

         5.   Opinions Regarding Test Borings                            
    ECI also seeks to exclude Bergman’s opinions regarding test borings, arguing he 
does not provide any relevant opinion on the matter.  Specifically, ECI contests Bergman’s 
opinion that “the [geotechnical baseline report] might have benefited from additional 
borings.]”  (Dkt. 332-1 at 141:19-146:17.)  Defendants contend that Bergman’s opinions 
are relevant.                                                             

    Evidence is relevant if it has any tendency to make a fact more or less probable than 
it would be without the evidence and the fact is of consequence in determining the action.  
Fed. R. Evid. 401.  Bergman’s opinion is relevant because it pertains to whether ECI’s 
rejection of Bradshaw’s DSC claims was reasonable under the contract.  Accordingly, 
ECI’s motion to exclude Bergman’s opinion regarding test borings is denied.  

    D.   Kimberlie Staheli                                               
    Kimberlie Staheli is a construction expert for Defendants.  ECI does not challenge 
Staheli’s qualifications as an expert witness.  Rather, ECI argues that Staheli’s opinions 
about  the  Project’s  subsurface  conditions  are  unreliable  because  neither  Staheli  nor 
Defendants physically inspected the Project’s subsurface.                 

    Staheli provides a detailed account of the methodologies she employed to examine 
the subsurface conditions at the Project.  ECI argues that Staheli’s testimony is insufficient 
because she opined that the three best and most accurate methods to investigate the 
presence of voids in a particular subsurface location would be vertical borings, ground 
penetrating radar and cross-hole tomography.  And Staheli concedes that these methods 
were not used because of costs.                                           

     “An expert may base an opinion on facts or data in the case that the expert has been 
made aware of or personally observed.”  Fed. R. Evid. 703.  “If experts in the particular 
field would reasonably rely on those kinds of facts or data in forming an opinion on the 
subject, they need not be admissible for the opinion to be admitted.”  

  ECI does not 
appear to argue the methods employed by Staheli are insufficient.  Rather, ECI maintains 
that these methods were not the best and most accurate methods that Staheli identified.  

Staheli’s knowledge and methodology pertain to the weight that the jury accords her 
testimony rather than its admissibility.  See Miles, 

.  For this reason, ECI’s 
motion to exclude Staheli’s expert testimony is denied.                   
    E.   Scott Bender                                                    
    Scott Bender is Defendants’ hydrogeology expert.  ECI does not challenge his 

ability to testify as an expert witness.  Rather, ECI argues that Bender’s opinions about 
grouting are unreliable because he lacks the appropriate licensure or certification.  
    Bender  has  experience  working  with  a  variety  of  grouts.  As  a  result  of  this 
experience, he is knowledgeable about what will infiltrate porous media.   Gaps in Bender’s 
qualifications, however, pertain to the weight of Bender’s opinion, not to its admissibility.  

Robinson, 

.  Accordingly, ECI’s motion to exclude Bender’s expert 
testimony is denied.                                                      
II.  Summary Judgment                                                     
    Summary judgment is proper when the moving party establishes that there is no 

genuine dispute as to any material fact and the moving party “is entitled to judgment as a 
matter of law.”  Fed. R. Civ. P. 56(a); see Anderson v. Liberty Lobby, Inc., 

 (1968).  When considering a motion for summary judgment, the court views the 
evidence and any reasonable inferences to be drawn from the evidence in the light most 
favorable to the nonmoving party.  Krenik v. Cty. Of Le Sueur, 

 (8th Cir. 
1995).                                                                    

    Whether a fact  is “material” is assessed under the  governing substantive law.  
Anderson, 

.  Summary judgment is not appropriate where a dispute about a 
material fact is “genuine,” i.e., “if the evidence is such that a reasonable jury could return 
a verdict for the nonmoving party.”  

                                  
    The party seeking summary judgment bears the initial burden of production.  See 

Celotex Corp. v. Catrett, 

 (1986).  When the moving party carried its 
burden,  the  nonmoving  party  “must  do  more  than  simply  show  that  there  is  some 
metaphysical doubt as to the material facts,” Scott v. Harris, 

 (2007), or 
rest on “the mere allegations or denials.”  Anderson, 

.  The nonmoving party 
must cite with particularity those aspects of the record that support the assertion that a fact 

is genuinely disputed.  Fed. R. Civ. P. 56(c)(1)(A).                      
    A.   Defendants’ Summary Judgment Motion                             
    In their motion for partial summary judgment, Defendants maintain that ECI cannot 
recover “actual delay” damages and liquidated damages under the Subcontract, ECI lacks 
standing to recover damages related to the change order and ECI’s claim for liquidated 
damages on behalf of the City are not ripe.  Each argument is addressed in turn.  

         1.   Actual Damages and Liquidated Damages under the            
              Subcontract.                                               
    Defendants contend that ECI cannot recover actual damages and liquidated damages 
under the Subcontract because the Subcontract does not permit the simultaneous recovery 
of these damages.  It is undisputed that the Subcontract incorporates an enforceable 
liquidated damages clause from the Prime Contract.  And the Subcontract states that 
“Contractor . . . may charge to [Subcontractor] any cost to complete, correct or becomes 
owed to Owner, plus damages from delay or disruption, plus liquidated or actual damages 
caused by Subcontractor’s breach.”  (Dkt. 326-8 at 6.)                    

    Defendants argue that the liquidated damages imposed on ECI by the City through 
the Prime Contract are consistent with the terms of the Subcontract.  And, Defendants 
contend, “extended general conditions” damages provided by ECI are actual damages.3  As 
such, Defendants maintain that under the subcontract, ECI can only receive either the “City 
of Minneapolis Damages” or “extended general conditions” damages.         

    Defendants’  arguments  are  unavailing.    The  Subcontract  states  that 
“Contractor . . . may charge to [Subcontractor] any cost to complete, correct or [that] 
becomes owed to Owner, plus damages from delay or disruption, plus liquidated or actual 


3 Defendants refer to the “extended general conditions” damages here as “actual delay 
damages.”  (See Dkt. 325 at 26.)  In doing so, Defendants seemingly concede that the 
damages at issue here are also delay damages.  The Court presumes that Defendants are 
referring to “actual damages” in the disputed clause of the contract.     
damages.”  (Dkt. 326-8 at 6) (emphasis added).  Defendants do not identify any provision 
in the contract or cite any case law to support the contention that the “extended general 

conditions” damages at issue here should be considered actual damages.  As there is a 
genuine dispute as to any material fact as it relates to the categorization of these damages, 
Defendants fail to show that they are entitled to judgment as a matter of law.  Defendant’s 
motion for summary judgment on this issue is denied.                      
         2.   Standing to Recover Damages Pertaining to the Change Order  

    Defendants contend that ECI lacks standing to recover $2,583,041 from the change 
order provided by the City because the City did not properly assign this claim to ECI.  In 
response to this argument, ECI maintains that it is not seeking recovery on behalf of the 
City for the change order.  ECI argues that it incurred an additional $3,245,562 in costs 
following Bradshaw’s breach.  And ECI is seeking to recover $3,245,562 from Defendants.  
The $2,583,041 change order, ECI contends, was provided to ECI following Bradshaw’s 

termination so that ECI would have sufficient funds to complete the project.  Under The 
Common  Interest  and  Cooperation  Agreement,  any  money  recovered  by  ECI  up  to 
$2,583,041  would  be  disbursed  to  the  City.    Viewing  the  evidence  and  drawing  all 
reasonable inferences in the light most favorable to ECI, Defendants fail to establish that 
there is no genuine dispute as to any material fact.  Accordingly, Defendants’ motion for 

summary judgment as to ECI’s lack of standing to recover $2,583,041 from the change 
order is denied.                                                          
         3.   Whether the Liquidated Damages are Ripe                    
    Defendants summary judgment on ECI’s claim for liquidated damages assessed by 
the City, arguing that the money has not yet been collected and, therefore, the issue is not 

ripe for adjudication.                                                    
    “A claim is not ripe for adjudication if it rests upon contingent future events that 
may occur as anticipated, or indeed may not occur at all.”  Texas v. United States, 

 (1998) (quotation omitted).  Although a plaintiff is not required to wait until the 
threatened injury occurs, the injury must be “certainly impending.”  Paraquad, Inc. v. St. 

Louis Housing Auth., 

, 958-59 (8th Cir. 2001).                
    ECI’s claim for liquidated damages does not rest on the contingent future event that 
it might owe the City the liquidated damages.  See HCIC Enterprises, LLC v. United States, 

, 302 (2020) (Federal Claims Court concluding a claim is not ripe when 
liquidated damages have yet to be assessed).  The Prime Contract provides that ECI shall 

pay liquidated damages in the event of a delay.  It is undisputed that the City assessed 
liquidated damages against ECI and is requesting payment.  As the liquidated damages 
have been assessed, the injury to ECI is “certainly impending.”  Paraquad, Inc., 259 F.3d 
at 958.  Additionally, Defendants lack any legal support for their argument that a party 
must collect the liquidated damages before standing can be established.  The amount of 

liquidated damages to the City is known and owed.  ECI has standing to bring a claim for 
the liquidated damages against Bradshaw.  As such, Defendants fail to show that they are 
entitled to summary judgment on ECI’s claim for liquidated damages assessed by the City.  
Defendants’ motion for summary judgment on this ground is denied.         
    B.    ECI’s Motion for Summary Judgment                              
    ECI moves the Court for summary judgment as to Bradshaw’s counterclaims.4  

Bradshaw’s counterclaims are as follows: (1) breach-of-contract, (2) wrongful-termination, 
(3) prompt-payment claim, (4) professional-negligence, (5) breach of express and implied 
warranty, (6) misappropriation-of-property, (7) request for attorneys’ fees and (8) a bond 
claim.  ECI contends it is entitled to summary judgment on these claims because the claims 
are either foreclosed by the contract, statutorily barred or not recognized under Minnesota 
law.  Each claim is addressed in turn.                                    

         1.   Breach-of-Contract Claim (Count I)                         
    ECI seeks summary judgment on Bradshaw’s breach-of-contract claim to the extent 
that Bradshaw argues that Bradshaw was entitled to a change order based on the DSC 
claims submitted to ECI.                                                  
    To prevail on a breach-of-contract claim, Bradshaw must show: “(1) formation of a 

contract, (2) performance by [Bradshaw] of any conditions precedent to his right to demand 
performance by [ECI], and (3) breach of the contract by [ECI].”  Lyon Fin. Servs., Inc. v. 
Ill. Paper & Copier Co., 

 (Minn. 2014).                
    Here, the parties dispute the third element—whether ECI breached the Subcontract 
by failing to honor and accept Bradshaw’s DSC claims.  For Bradshaw to succeed in this 

claim against ECI, Bradshaw must establish that its nonperformance was excusable and 
that ECI breached the contract first.  To be excusable, Bradshaw must establish that it was 

4 Travelers also made counterclaims, but ECI does not move for summary judgment on 
those counterclaims at this time.  (Dkt. 336 at 18 n.1.)                  
entitled to a change order.  Under the terms of the Subcontract, Bradshaw is “entitled to an 
equitable adjustment in Contract Price or Contract Times, or both, to the extent [that a 

differing site condition] . . . causes an increase or decrease in [Bradshaw’s] cost of or time 
required for, performance of the Work.”  (Dkt. 338-4 at 14.)  In other words, if Bradshaw 
brings valid DSC claims, Bradshaw is entitled to a change order.          
    ECI contends that Bradshaw’s was not entitled to a change order because (1) 
Bradshaw’s DSC claim notices were improper and (2) Bradshaw cannot meet the elements 
of a Type I DSC claim.                                                    

              a.   Sufficiency of the DSC Notices                        
    The parties dispute whether Bradshaw’s DSC claims were untimely pursuant to the 
terms of the Subcontract.  Bradshaw contends its claims were timely.      
    Under  the  terms  of  the  Subcontract,  if  the  subcontractor  “believes”  it  has 
encountered a differing subsurface condition, the subcontractor must “notify Owner and 

Engineer  in  writing  about  such  condition  no  later than  three  (3)  days  after  the  first 
observance of such condition.”  (Dkt. 338-4 at 13.)5  If written notice is not given as 
required, than the subcontractor “shall not be entitled to any adjustment in the Contract 
Price of Contract Times with respect to [that] subsurface or physical condition.”  (Dkt. 338-
4 at 14.)  The subcontractor “shall not be entitled to any adjustment” if the subcontractor 


5 Bradshaw argues that the contract’s notice provision should not be strictly interpreted.  
This argument is unavailing.  When contract language is “clear and unambiguous,” the 
Court must enforce the contract as written and “should not rewrite, modify, or limit its 
effect by a strained construction.”  Luis v. RBC Cap. Markets, LLC, 

 (8th 
Cir. 2020).                                                               
“failed to give written notice as required.”  (Dkt. 338-4 at 14.)  If a DSC Claim is denied, 
“[a] denial of the Claim shall be final and binding unless within 30 days of the denial the 

other party invokes the procedures set forth in Article 17 for the final resolution of disputes.”  
(Dkt. 338-3 at 66.)                                                       
    Regarding the First DSC Claim, it is undisputed that Bradshaw first observed and 
encountered its first DSC event on November 7, 2019.  But Bradshaw did not submit its 
First DSC Claim to ECI until November 15, 2019.  Even when drawing all reasonable 
inferences in Bradshaw’s favor, the First DSC Claim was untimely.6  Bradshaw was not 

entitled to a change order for the First DSC Claim.                       
    Regarding the Second DSC Claim, ECI contends that the second DSC was first 
observed during Bradshaw’s work when Bradshaw experienced high jacking loads during 
drilling.  According to ECI, the high jacking loads were also observed on December 29, 
2019.  But the record provides that the second DSC could have been first observed on 

January 1, 2020, when Bradshaw decided to stop tunneling.  Bradshaw notified ECI on 
January 4, 2020, which is within the 3-day period and, therefore, timely.  ECI has not 
shown that “there is no genuine dispute as to any material fact” as to when the second DSC 
was first encountered.  Therefore, when all reasonable inferences are drawn in Bradshaw’s 
favor, ECI fails to show that it is entitled to judgment as to a matter of law. 




6 Moreover, this untimely notice was partially acknowledged by Bradshaw.  (See Dkt. 337-
1 at 239.)  Bradshaw’s concerns on the timeliness of the filing led Bradshaw to consult its 
attorney.  (Dkt. 337-1 at 158.)                                           
    In sum, the Court concludes that the First DSC Claim was untimely.  However, a 
genuine dispute as to material facts exists as to whether the Second DSC Claim was 

untimely.                                                                 
              b.   Elements of a DSC Claim                               
    ECI also maintains that Bradshaw cannot meet the elements of a DSC claim under 
Minnesota Law.  Because the Court concludes that the First DSC Claim was untimely, the 
Court evaluates only whether Bradshaw can meet the elements for the Second DSC Claim. 
     It is undisputed that Bradshaw makes a “Type I” DSC claim.  Under Minnesota 

law, to prove a “Type I” DSC claim, a contractor must prove each of the following 
elements:                                                                 
         i. the contract documents must have affirmatively indicated or  
         represented the subsurface conditions which form the basis of   
         the plaintiff’s claim;                                          

         ii. the contractor must have acted as a  reasonably prudent     
         contractor in interpreting the contract documents;              

         iii.  the  contractor  must  have  reasonably  relied  on  the  
         indications of subsurface conditions in the contract;           

         iv. the subsurface conditions actually encountered, within the  
         contract  site  area,  must  have  differed  materially  from  the 
         subsurface conditions indicated in the same contract area;      

         v. the actual subsurface conditions encountered must have been  
         reasonably unforeseeable; and                                   

         vi. the contractor’s claimed excess costs must be shown to be   
         solely  attributable  to  the  materially  different  subsurface 
         conditions within the contract site.                            
Frontier Pipeline, LLC v. Metro. Council, No. A10-1437, 

, at *3–4 
(Minn.  App.  July  25,  2011)  (citing  Rice  Lake  Contracting  Corp.  v.  Rust  Env’t  & 

Infrastructure, Inc., 

 (Minn. App. 2000) .  “A contractor is not eligible 
for  an  equitable adjustment  for a  Type  I  differing  site  condition  unless  the  contract 
indicated what that condition would be.”  Comtrol, Inc. v. United States, 

 (Fed. Cir. 2002); see also Frontier Pipeline, 

, at *3–4.  It is 
undisputed by the parties that the GBR:                                   
       •  Set baselines for geotechnical conditions and material behavior 
         that can be assumed to be encountered during construction;      

       •  Identified important design and construction considerations,   
         key  project  constraints,  and  selected  requirements  to  be 
         addressed  by  contractors  during  bid  preparation  and       
         construction;                                                   

       •  Provided  guidance  to  Owner  and  their  representatives  in 
         administering the Contract;                                     
(Dkt.  347-5  at  4.)    Moreover,  “[t]he  GBR  is  the  sole  document  for  geotechnical 
interpretations for the Project and provides the basis for determining the merit of claims 
for differing site conditions.”  (Dkt. 347-5 at 4.)                       
    It is undisputed that the GBR did not directly address the tunnel voids discussed in 
the Second DSC Claim.  ECI argues that because the GBR does not affirmatively make 
any  representation to  the tunnel  voids  discussed  in Bradshaw’s  Second  DSC  Claim, 
Bradshaw is not entitled to an adjustment.  Bradshaw disagrees, contending that ECI’s 
argument oversimplifies the issues that Bradshaw experienced.  In support of this argument, 
Bradshaw asserts that the tunnel voids are directly tied the ground water inflows, which 
were discussed in the GBR, and thus were represented in the GBR.          

    As the GBR does not address the tunnel voids, “it cannot be said that [Bradshaw] 
encountered  conditions  materially  differing  from  those  specifically  indicated  in  the 
specification.”  See Comtrol, Inc., 

.  Moreover, Bradshaw’s attempts 
to tie the tunnel voids with the ground water inflows representations are unavailing because 
Bradshaw fails to provide any factual or legal support for this claim.  Because ECI has met 
its burden of production, Bradshaw “must do more than simply show that there is some 

metaphysical doubt as to the material facts.”  Scott, 

.  However, Bradshaw 
fails to do so.  As such, ECI has established that it is entitled to judgment as a matter of 
law on the Second DSC Claim.  The Court, therefore, grants ECI’s Motion for Summary 
Judgment on this issue.                                                   
    Bradshaw failed to raise the First DSC Claim in a timely manner.  And pertaining 

to the Second DSC Claim, the GBR does not address tunnel voids.  Accordingly, the Court 
grants ECI summary judgment on Bradshaw’s breach-of-contract claim against ECI. 
         2.   Wrongful-Termination Claim (Count II)                      
    Bradshaw argues that ECI wrongfully terminated Bradshaw.  ECI presents two 
arguments in its defense.  ECI contends that the Subcontract entitled ECI to terminate 

Bradshaw’s  employment  “for  cause.”    Alternatively,  ECI  maintains  that  Bradshaw’s 
wrongful  termination  claim  fails  because  ECI  was  entitled  to  terminate  Bradshaw’s 
employment “for convenience.”                                             
    The Subcontract provides “Contractor may terminate or suspend Subcontractor’s 
Work, all or in part, if Owner terminates any Work, upon Subcontractor’s material breach, 

or for convenience.  Subcontractor shall be in material breach if, after five (5) days’ written 
notice,  Subcontractor . . . unreasonably  fails  to  complete  or  proceed  with  Work  per 
schedule; [or] tells Contractor that it will not perform.”  (Dkt. 347-6 at 5.)  
    ECI contends that it was entitled to terminate Bradshaw for cause for two reasons: 
Bradshaw unreasonably failed to complete or proceed with the work according to the 
schedule and Bradshaw stated it would not perform its work.  ECI, however, provides no 

support to show that the delays were unreasonable.  Moreover, Bradshaw presents evidence 
that Bradshaw persistently attempted to microtunnel despite the struggles it encountered.  
Additionally, Bradshaw did not state that it would not perform its work.  Bradshaw 
informed ECI that it would stop its tunneling operations while Bradshaw and outside 
experts “investigated to determine the best solution,” and Bradshaw sought guidance from 

ECI and the City on how to proceed.                                       
    Alternatively,  ECI’s  argues  that  it  was  entitled  to  terminate  Bradshaw  “for 
convenience.”  This argument is unavailing because ECI never invoked this clause.  The 
record establishes that ECI terminated Bradshaw “for cause.”  But ECI did not invoke the 
“for convenience” clause.  Moreover, ECI cites no case law to support its contention that 

it is entitled to judgment as a matter of law when a “for convenience” clause exists but is 
not invoked.  As such, ECI’s motion for summary judgment on Bradshaw’s wrongful 
termination claim is denied.                                              
         3.   Prompt-Payment Claim (Count III)                           
    Bradshaw contends that ECI violated 

(3) by failing to pay 1.5% 

in interest on any payment amount owed as of January 9, 2020.  ECI argues that it does not 
owe any interest because the statute only provides interest for undisputed services provided 
and ECI contends that Bradshaw’s services are still in dispute.  A prime contractor is 
required to:                                                              
         to  promptly  pay  any  subcontractor  . . . within  ten  days  of 
         receipt by the party responsible for payment of payment for     
         undisputed  services  provided  by  the  party  requesting      
         payment . . . . The contract shall be deemed to require the party 
         responsible for payment to pay interest of 1-1/2 percent per    
         month  to  the party  requesting  payment  on  any undisputed   
         amount not paid on time . . . . A party requesting payment who  
         prevails in a civil action to collect interest penalties . . . must 
         be awarded its costs and disbursements, including attorney fees   

(3).  To prevail, Bradshaw must prove at trial that it requested payment 
from ECI for undisputed services and that ECI failed to pay Bradshaw services within ten 
days of receiving that request.  See Meyer Contracting, Inc. v. Fowler, No. A18-0785, 

 at *3 (Minn. Ct. App. 2019).  ECI claims that summary judgment should be 
granted because all of Bradshaw’s work is disputed.  And because the work is still disputed, 
ECI  argues  that  Bradshaw  is  not  entitled  to  interest  under  

(3). 
Bradshaw argues that interest is owed for a late payment that was due on January 10, 2020, 
but paid on February 6, 2020.                                             
    Although  ECI  argues  that  all  of  Bradshaw’s  work  is  disputed,    the  summary 
judgment record fails to establish that there are no outstanding payments still owed to 
Bradshaw.   Accordingly, ECI’s motion for summary judgment on Bradshaw’s prompt-
payment claim is denied.                                                  

         4.   Professional-Negligence Claim (Count IV)                   
    Bradshaw  contends  that  ECI  committed  professional  negligence  in  ECI’s 
construction of the launch shaft.  Summary judgment should be granted, ECI argues, 
because Bradshaw fails to establish a prima facie case of professional negligence under 

, subd. 2 as Bradshaw failed to provide two expert disclosures as 
required to bring such claims.  Bradshaw agrees that that summary judgment is appropriate 

because it failed to meet the pleading requirements.  ECI’s motion for summary judgment 
regarding Bradshaw’s professional-negligence claim is granted.            
         5.   Warranty Claim (Count V)                                   
    Bradshaw contends that ECI breached both express and implied warranties of their 
contract.  ECI argues Bradshaw’s arguments fail for two reasons: (1) ECI expressly 

disclaimed any warranties regarding the subsurface conditions and (2) Bradshaw was 
responsible for its own means and methods, so no warranty was implied.  (Dkt. 336 at 33.) 
    ECI argues that the Contract Documents disclaimed all express and implied 
warranties regarding the subsurface conditions.  In support of this argument, ECI points 
to Sections 5.03(C)(3), 5.03(C)(6), and 5.03(C)(9) from the Supplementary Conditions.   

Section 5.03(C)(6) provides the warranty statement states:                
         Neither Owner, Engineer, nor geotechnical or other consultant   
         warrants or guarantees that actual subsurface conditions will   
         be as described in the GBR, nor is the GBR intended to warrant  
         or  guarantee  the  use  of  specific  means  or  methods  of   
         construction.                                                   
(Dkt. 338-4 at 11.) (emphasis added).  ECI is commonly referred to as “Contractor” within 
the Contract Documents.7  As ECI does not expressly disclaim these warranties, the Court 
concludes summary judgment is not appropriate.                            
    ECI argues that regardless of any warranty, Bradshaw was solely responsible for the 

means, methods, techniques, sequences, and procedures of performing its microtunneling 
work thus no warranty was implied.  Bradshaw, however, provides that it was bound to 
build in accordance with the City’s specifications.                       
    “[W]here one party furnishes specifications and plans for a contractor to follow in 
a construction job, he thereby impliedly warrants their sufficiency for the purposes implicit 
therein and whether the builder has been damaged in proceeding with the work in reliance 

on such an implied warranty or whether he was damaged in relying on the warranty in 
making his bid, he may recover.”  Granite Re, Inc. v. City of La Crescent, No. 08-cv-
441(RHK/RLE), 

, at *8 (D. Minn. Sept. 11, 2009) (citing McCree & Co. 
v. State, 

 (Minn. 1958)).                               
      In the Standard General Conditions of the Construction Contract, Bradshaw is 

solely responsible for the “means, methods, techniques, sequences, and procedures” of 
performing its microtunneling work.  However, excerpts from the Project Manual provide 
the manner that Bradshaw was required to perform its work.  In viewing evidence in the 
light most favorable to the Bradshaw, ECI fails to show that it is “entitled to judgment as 


7 Similarly, the GBR only states: “The contractual baselines do not represent warranties by 
Owner of the actual subsurface conditions that will be encountered by Contractor.”  (Dkt. 
338-1 at 60.)                                                             
a matter of law” as to whether Bradshaw had discretion to deviate from the specifications 
provided.  Accordingly, ECI’s motion for summary judgment on Bradshaw’s express and 

implied warranties claims is denied.                                      
         6.   Misappropriation of Property (Count VI)                    
    Bradshaw  brings  a  claim  for  misappropriation  of  property,  arguing  that  ECI 
improperly refused to allow Bradshaw onto the Project site to recover its equipment that 
remained  on-site.  ECI  argues  that  misappropriation  of  property  is  not  a  tort  that  is 
recognized by Minnesota law.                                              

    Minnesota does not recognize the common law tort of misappropriation of property.  
In support of its claim that misappropriation of property exists, Bradshaw cites to State v. 
Kiewel, 

 (Minn. 1928).  (Dkt. 345 at 42.)  However, Kiewel is a criminal 
matter that addresses embezzlement.  Bradshaw also incorrectly cites to World Data 
Products, Inc. v. Keefe, No. C2-99-644, 

, *4 (Minn. Ct. App. 1999), 

which addresses misappropriation of trade secrets, and RMG Partners, LLC v. Arctic Cat 
Sales Inc., Case No. 20-CV-609 (NEB/LIB), 

, *1 (D. Minn. Sept. 16, 
2021), which addresses misappropriation of intellectual property.  None of these cases 
stand for Bradshaw’s position that Minnesota recognizes misappropriation of property as 
a  tort.    Accordingly,  ECI’s  motion  for  summary  judgment  on  Bradshaw’s 

misappropriation-of-property claim is granted.                            
         7.   Bond Claim (Count VIII)                                    
    Bradshaw’s bond claim seeks to recover from a payment bond owned by ECI.  ECI 
argues that Bradshaw’s bond claim fails because payment can only be made when a claim 
is substantiated.  Bradshaw contests this claim by arguing that the bond is a guarantor of 
performance by ECI.  Bradshaw argues that if one of its other counterclaims move forward, 

Bradshaw’s bond claim should move forward as well because the bond serves as guarantor 
of ECI’s obligations.                                                     
    Under 

,                                          
         a contract with a public body for the doing of any public work  
         is not valid unless the contractor gives (1) a performance bond 
         to the public body with whom the contractor entered into the    
         contract, for the use and benefit of the public body to complete 
         the contract according to its terms, and conditioned on saving  
         the public body harmless from all costs and charges that may    
         accrue on account of completing the specified work, and (2) a   
         payment bond for the use and benefit of all persons furnishing  
         labor and materials engaged under, or to perform the contract,  
         conditioned for the payment, as they become due, of all just    
         claims for the labor and materials                              

Here, because some of Bradshaw’s claims survive summary judgment, ECI’s summary 
judgment motion on Bradshaw’s bond claim is denied.                       
         8.   Attorneys’ Fees Claim (Count VII)                          
    Bradshaw  seeks  attorneys’  fees.    ECI  maintains  that  attorneys’  fees  are  not 
recoverable unless authorized by contract or by statute.  Bradshaw is not seeking attorneys’ 
fees pursuant to the Subcontract.  Rather Bradshaw contends that fees are statutorily 
mandated under 

.  Under the statute, reasonable attorneys’ fees, costs, 
and disbursements may be awarded in an action to enforce claims under the act if the action 
is successfully maintained or successfully appealed.  

. 
    Here, because Bradshaw’s bond claim survives summary judgment, Bradshaw’s 
attorneys’ fee claim survives as well.  Accordingly, ECI’s summary judgment motion on 

Bradshaw’s attorneys’ fees claim is denied.                               

    Based on the foregoing analysis and all the files, records and proceedings herein, IT 
IS HEREBY ORDERED:                                                        

    1.   Defendants’ motion to exclude the testimony of Arthur McGinn, (Dkt. 309), 
         is DENIED;                                                      
    2.   Defendants’ motion to exclude the testimony of Mark Gentry, (Dkt. 315), is 
         DENIED;                                                         
    3.   ECI’s motion to exclude the testimony of Donald Bergman, (Dkt. 328), is 
         GRANTED   to  the  extent  that  he  will  be  opining  on  engineering  and 
         geological topics beyond his area of expertise and DENIED in all other 
         respects;                                                       
    4.   ECI’s motion to exclude the testimony of Kimberlie Staheli, (Dkt. 328), is 
         DENIED;                                                         
    5.   ECI’s  motion  to  exclude  the  testimony  of  Scott  Bender,  (Dkt.  328),  is 
         DENIED;                                                         
    6.   Defendant’s motion for summary judgment, (Dkt. 323), is DENIED; and 
    7.   ECI’s motion for summary judgment, (Dkt. 334), is GRANTED in part and 
         DENIED in part as addressed herein.                             

LET JUDGMENT BE ENTERED ACCORDINGLY.                                      
Dated: September 25, 2023       s/Wilhelmina M. Wright                                  
                                Wilhelmina M. Wright                     
                                United States District Judge