Keller Industrial, Inc. v. Engineering & Construction Innovations, Inc.

                 UNITED STATES DISTRICT COURT                            
                    DISTRICT OF MINNESOTA                                


Keller Industrial, Inc.,               File No. 21-cv-2218 (ECT/JFD)      

         Plaintiff,                                                      

v.                                       OPINION AND ORDER                

Engineering & Construction Innovations,                                   
Inc., Fidelity and Deposit Company of                                     
Maryland, and Zurich American Insurance                                   
Company,                                                                  

         Defendants.                                                     
________________________________________________________________________  
Kristine A. Kubes and Laurie W. Meyer, Kubes Law Office PLLC, Minneapolis, MN, for 
Plaintiff Keller Industrial, Inc.                                         
Paul Shapiro, Ernest F. Peake, and Patrick J. Lindmark, Taft Stettinius & Hollister LLP, 
Minneapolis, MN, for Defendants Engineer & Construction Innovations, Inc., Fidelity and 
Deposit Company of Maryland, and Zurich American Insurance Company.       
________________________________________________________________________  
    This diversity case arises out of a January 2021 flood event.  Defendant Engineering 
& Construction Innovations, Inc. (“ECI”) was the general contractor on a project to build 
a water main under the Mississippi River.  When ECI’s tunneling machine became stuck 
at the exit shaft, it subcontracted Plaintiff Keller Industrial, Inc. to freeze the ground around 
the machine to prevent groundwater from entering the area and to enable ECI to retrieve 
the machine.  Keller claimed to do its part, but a few weeks after ECI started working to 
retrieve the tunneling machine, groundwater flooded the tunnel system.  ECI refused to pay 
Keller for its work.  Keller brought this six-count lawsuit, seeking payment for its ground-
freeze work.  ECI counterclaimed for breach of contract and negligence.   
    Several motions require a decision: cross-motions for partial summary judgment; 
ECI’s motion to exclude expert testimony, in part, of Keller’s three expert witnesses; and 
Keller’s motion to exclude the expert testimony of ECI’s engineering expert.  The upshot 

is this:                                                                  
      ECI’s motion for partial summary judgment will be granted because Keller 
      stipulated to the dismissal of Counts III and IV of the Amended Complaint. 

      Keller’s motion for partial summary judgment will be denied.      
      Keller’s motion to exclude the expert testimony of Dr. McGinn will be denied. 
      ECI’s motion to exclude, in part, the expert testimony of Dr. Auld will be mostly 
      granted.                                                           

      ECI’s motion to exclude, in part, the expert testimony of Erin Fallon will be 
      granted.                                                           

      ECI’s motion to exclude, in part, the expert testimony of Paul Wilkinson will be 
      granted in part and denied in part.                                
                               I1                                        
    The parties.  ECI is “a full service heavy civil construction firm that specializes in 
infrastructure, marine, geotechnical and specialty construction projects.”  About ECI, 
Engineering  &  Construction  Innovations,  Inc.,  http://eciconstructors.com/about  (last 
visited Jan. 17, 2023).  ECI is incorporated in Minnesota.  Am. Compl. [ECF No. 23] ¶ 2; 
ECF No. 27 ¶ 2.  Keller “provides solutions to a wide range of geotechnical challenges 
across  the   entire  construction  spectrum.”    Solutions,  Keller      
https://www.keller-na.com/expertise/solutions (last visited Jan. 17, 2024).  Keller is a New 

1    Unless noted otherwise, the facts described in Part I are undisputed.  See Fed. R. 
Civ. P. 56(a).                                                            
Jersey corporation with its principal place of business in New Jersey.  Am. Compl. ¶ 1.  
Fidelity  and  Deposit  Company  of  Maryland’s  (“Fidelity”)  state  of  incorporation  and 
principal place of business are not clear from the record.2  Am. Compl. ¶ 3; ECF No. 26 ¶ 

3.  Defendant Zurich American Insurance Company (“Zurich”) is a New York corporation 
with a principal place of business in Illinois.  Am. Compl. ¶ 4; ECF No. 26 ¶ 4.  Fidelity 
and Zurich issued a payment bond identifying ECI as the principal.  Am. Compl. ¶ 11; ECF 
No. 26 ¶ 11.  Fidelity and Zurich are sureties of that payment bond.  ECF No. 23-1 at 1–2. 
    The City of Minneapolis hires ECI to complete a microtunneling project.  In 2019, 

the City hired ECI as the general contractor on the 10th Avenue Water Main River Crossing 
Project (the “Project”).  ECF No. 62 ¶ 2.  The Project involved the construction of an 
underground water main beneath the Mississippi River near downtown Minneapolis.  Id.  
The City specified that the water main “should be constructed using microtunneling.”  Id. 


2    “[F]ederal courts are obligated to raise the issue of subject-matter jurisdiction sua 
sponte.”  Crawford v. F. Hoffman-La Roche Ltd., 

, 764 n.2 (8th Cir. 2001).  
In assessing diversity jurisdiction, other cases observe Fidelity is incorporated in Maryland 
with its principal place of business in Maryland or Illinois.  See Bill Goodwin Const., LLC 
v. Wondra Const., Inc., No. 3:13cv157, 

, at *2 n.1 (M.D. Pa. Aug. 5, 
2013) (concluding Fidelity was incorporated in Maryland with its principal place of 
business in Illinois); Fidelity & Deposit Co. of Md. v. Rod Cooke Constr., Inc., No. 1:19-
CV-241-JB-M, 

, at *1 (S.D. Ala. July 28, 2020) (“[Fidelity] is a 
Maryland company with its principal place of business in Illinois.”); Fidelity & Deposit 
Co. of Md. v. Willson, No. 2:06-CV-92, 

, at *1 (N.D. Ind. Oct. 26, 2006) 
(“[Fidelity] is a citizen of Maryland, both being organized under the laws of Maryland and 
having its principal place of business there.”).  But see Fidelity & Deposit Co. of Md. v. 
Omni Constr. Co., Inc., No. 19-CV-49, 

, at *1 n.1 (N.D. Ohio Apr. 24, 
2020) (“[Fidelity] is a corporation organized and existing under the laws of the State of 
Illinois with its principal place of business in Illinois.”).  Because Keller is a New Jersey 
corporation with its principal place of business in New Jersey, diversity jurisdiction is 
satisfied.                                                                
      A launch shaft and retrieval shaft were constructed, the launch shaft located on the 
east bank of the Mississippi River and the retrieval shaft located on the west bank.  Jd. 75; 
ECF No.  90-1  at 307  (Marshall Dep.  55:12—14).  A “microtunnel boring machine (the 
‘MTBM’), shaped like a horizontal cylinder, was lowered into the launch shaft.”  ECF No. 
6295.  “The ‘head’ of the MTBM, a  five-foot-diameter cutting tool, was oriented to face 
the direction of tunneling.”  /d.  Hydraulic jacks pushed the MTBM through the ground. 

  The MTBM broke down the subsurface and the subsurface material was pumped out 
of the tunnel system.  /d.  As the MTBM advanced underground from the launch shaft to 
the  retrieval  shaft,  “the  hydraulic jacks  were  periodically retracted,  and  a twenty-foot 
section of encased piping was installed behind the MTBM.” Jd.  9 6.  In theory, the process 
would repeat until the MTBM reached the retrieval shaft,  leaving behind a completed, 
encased pipeline.  /d.  The following schematic illustrates the Project: 
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Id. 47.

    ECI initially hires a subcontractor to microtunnel, before taking over the process.  
ECI hired Bradshaw Construction Corporation (“Bradshaw”), “a microtunneling specialty 
contractor, to perform the Project’s microtunneling” work.  Id. ¶ 8.  Bradshaw started 

microtunneling in November 2019.  Id.  For reasons unclear from the record, Bradshaw 
encountered problems and only advanced its MTBM a short distance in three months.  Id.  
In February 2020, “ECI terminated Bradshaw at the direction of the City.”  Id.  ECI later 
submitted a proposal to self-perform the microtunneling work and started microtunneling 
in early August 2020.  Id. ¶¶ 9–10.                                       

    The MTBM gets stuck.  Within two weeks, the MTBM’s head reached the retrieval 
shaft, “[b]ut ECI was unable to advance its MTBM into the retrieval shaft so that it could 
be recovered and extracted.”  Id. ¶ 10.  A reception seal had been installed in the retrieval 
shaft to receive the MTBM, ECF No. 90-1 at 105, but the MTBM arrived off-center and 
was stuck at the reception seal, id. at 212 (Umlauf Dep. 120:13–15), 302 (Marshall Dep. 

33:3–15).  Because the retrieval shaft was sealed from the subsurface, see id. at 103–104, 
forcing the MTBM into the retrieval shaft risked groundwater intrusions into the tunnel 
system.                                                                   
    The dirt wing problem.  The MTBM had “an antiroll fin or steering fin . . . that 
helped stabilize the machine.”  ECF No. 90-1 at 137 (Johnson Dep. 95:14–16).  The parties 

refer to this steering fin as the dirt wing.  See, e.g., id. at 137 (Johnson Dep. 95:25–96:3).  
The dirt wing was designed to be retractable, but when the MTBM reached the retrieval 
shaft it would not retract.  Id. at 137 (Johnson Dep. 95:8–20).  This dirt wing contributed 
to the MTBM being stuck at the reception seal system, unable to advance further into the 
retrieval shaft.  Id.; see also id. at 318 (Marshall Dep. 100:7–14) (“if we were to try to push 
through our seal, it would tear the seal was our fear.  So the goal was to try to extract the 
dirt wing to further advance the MTBM.”).  In August 2020, ECI attempted to remove the 

dirt wing, resulting in groundwater inflows into the MTBM.  Id. at 202 (Umlauf Dep. 
78:15–19), 258 (Hogen Dep. 88:7–12).  In August and early September 2020, while 
attempting to remove the dirt wing and stop groundwater inflows, ECI placed grout around 
the MTBM.  Id. at 338 (Marshall Dep. 179:4–21), 259 (Hogen Dep. 89:3–14). 
    ECI subcontracts Keller to freeze the ground.  To resolve these problems, ECI 

contracted Keller to design and install a “ground-freeze system in the area around the 
MTBM and the retrieval shaft.”  ECF No. 62 ¶ 11.  “The idea was that freezing the 
subsurface would enable ECI personnel to perform additional work . . . to advance the 
MTBM into the retrieval shaft” without groundwater or soil flowing into the tunnel system.  
Id.  Keller created a preliminary ground-freeze design, ECF No. 90-1 at 30 (Sopko Dep. 

47:16–21), drafted a ground-freezing proposal, and on October 6, 2021, sent a revised 
ground-freezing proposal to ECI.  ECF No. 62-1 at 20–25.  On October 12, 2021, Keller 
and ECI executed a subcontractor agreement (the “Subcontract”) for Keller to design, 
furnish, and install a “frozen soil system for temporary ground stabilization and ground 
water control.”  Id. at 13, 20.  Keller’s responsibilities included “[t]he installation and 

oversight of the ground freeze system in accordance with [Keller’s] proposal dated October 
6, 2020.”  Id. at 13.  ECI was responsible for furnishing, drilling, and installing the ground-
freeze pipe described more fully in the next paragraph.  Id.              
    Keller’s ground-freeze design.  Keller’s ground-freeze design included several 
components.  Keller proposed installing 30 freeze pipes drilled to 120 feet deep.  ECF No. 
90-1 at 7.  Freeze pipes are steel pipes drilled into the ground.  ECF No. 90-1 at 194 

(Umlauf Dep. 45:3–4).  The freeze pipes are then connected to a freeze plant, which cools 
and circulates liquid brine through the freeze pipes.  ECF No. 90-1 at 52 (Sopko Dep. 
139:6–11), 8.  Over time, as the chilled liquid brine circulates through the freeze pipes, 
heat is extracted from the surrounding earth, lowering the ground temperature around the 
freeze pipes.  Id. at 6.  The goal of lowering the ground temperature is to form a frozen 

mass.  Id. at 48 (Sopko Dep. 122:19–23).  Here, the frozen mass was to be formed around 
the MTBM and retrieval shaft.  Id.  Various temperature sensors would monitor the freeze.  
Temperature  monitoring  pipes  are  pipes  drilled  into  the  ground,  filled  with  calcium 
chloride brine.  Id. at 50 (Sopko Dep. 132:1–12).  A beadedstream is installed in the 
temperature monitoring pipes—a wire with temperature sensors reporting data at different 

depths along the pipe.  Id. at 50 (Sopko Dep. 132:1–133–25), 51 (Sopko Dep. 134:17–
135:1).  The beadedstreams are connected to an instrumentation panel, or control panel, 
located at the site of the Project.  Id. at 34 (Sopko Dep. 67:8–14).  A temperature sensor 
measures the brine temperature as it returns from the freeze pipes to the freeze plant.  Id. 
at 52 (Sopko Dep. 139:6–11).  Finally, Keller proposed monitoring the ground temperature 

from inside the MTBM “using a portable magnetic datalogger.”  Id. at 4.   
    Installation of the ground-freeze and temperature monitoring pipes.  On the west 
bank of the Mississippi River, Keller set up the ground-freeze system around the retrieval 
shaft and MTBM in November 2020.  ECF No. 62 ¶ 13.  Keller selected the physical 
locations to install the freeze pipes, incorporating existing freeze pipes near the shaft into 
the design.  ECF No. 90-1 at 47 (Sopko Dep. 120:7–121:10).3  “ECI drilled temporary case 
holes at locations and depth as determined by Keller’s design, and then installed the steel 

freeze pipe in the . . . temporary case drilled hole[s] . . . and retracted the temporary casing.”  
Id.  at  194  (Umlauf  Dep.  45:1–5).    Keller  determined  the  number  and  location  of 
temperature monitoring pipes.  Id. at 51 (Sopko Dep. 135:2–10).  The portable datalogger 
was initially installed in the MTBM, see id. at 56 (Sopko Dep. 154:2–5), but at some point 
after January 3, 2021, it was removed, ECF No. 88-1 at 246 (McGinn Dep. 245:5–11), 260 

(259:19–25).                                                              
    Initiating the freeze.  In early December 2020, Keller turned the ground-freeze 
system on.  ECF No. 62 ¶ 13.  Over the course of December, Keller compared the 
temperatures measured by its temperature sensors with temperatures predicted by “an as-
built model,” meaning a model based on measured datapoints such as the locations of the 

freeze pipes, temperature pipes, and the temperature of the brine circulating through the 
freeze  pipes.    ECF  No.  90-1  at  58  (Sopko  Dep.  165:4–24).    At  some point, Keller 
determined the frozen mass had been formed based on temperature readings and visual 
observations.  Id. at 55–56 (Sopko Dep. 153:19–154:16).  On January 3, 2021, Keller sent 
an “Authorization to Excavate” to ECI, informing ECI that excavation and recovery of the 

MTBM could begin with two qualifications.  ECF No. 62-1 at 27.  First, cutting and 


3    A different freezing contractor had performed a freeze around the retrieval shaft 
when ECI installed the reception seal.  ECF No. 90-1 at 47 (Sopko Dep. 120:19–24).  Some 
of the freeze pipes installed by the previous freezing contractor had been left in place. 
welding could not exceed one shift per day (or less if activities resulted in excessive 
melting).  Id.  Second, any groundwater or soil inflows were to be reported to the onsite 
Keller representative immediately.  Id.                                   

    ECI starts MTBM recovery operations.  After receiving Keller’s authorization, ECI 
started working in the shaft and tunnel to recover the MTBM.  One of the first steps taken 
by ECI was debris removal.  ECF No. 90-1 at 109.  On January 7, 2021, ECI personnel 
observed an inward deflection, or bulge, in the steel skin of the MTBM.  Id. at 109, 283 
(Hogen Dep. 186:22–187:7).  ECI measured the deflection at 48 inches by 20 inches and 4 

inches deep.  Id. at 283 (Hogen Dep. 188:7–15), 109.  There was concern this inward 
deflection acted “as a pinch point,” making it more difficult for the MTBM to be pushed 
into the retrieval shaft.  Id. at 286 (Hogen Dep. 197:22–23).             
    ECI’s attempt to jack the MTBM into the retrieval shaft is unsuccessful.  In early 
January, the pipe running under the Mississippi River was connected to the MTBM by a 

trailing can.  ECF No. 90-1 at 331 (Marshall Dep. 151:1–14).  ECI installed three hydraulic 
jacks near the joint where the trailing can of the MTBM connected to the pipe.  Id. 
(Marshall Dep. 150:18–24).  The hydraulic jacks were placed to push the MTBM forward 
into the retrieval shaft.  ECF No. 90-1 at 107.  In early January, ECI made two cuts to 
facilitate  the  push.    First,  on  January  11,  2021,  ECI  made  a  circumferential  cut  (a 

360-degree cut) in the pipe directly behind the MTBM’s trailing can.4  ECF No. 90-1 at 
325 (Marshall Dep. 127:5–11).  The cut was made to disconnect the MTBM from the pipe 

4    The circumferential cut was made, verified, then expanded.  See ECF No. 90-1 at 
106–07.  It is not clear if all this work occurred on January 11, 2021.   
running under the Mississippi River so the hydraulic jacks could push the MTBM into the 
retrieval shaft.  Id. at 325 (Marshall Dep. 128:16–21).  ECI performed the cut with a 
“grinder/cutting wheel” and a carbon air arc.  Id. at 107.  Second, ECI made a relief cut in 

the top of the MTBM to relieve the inward deflection.  Id. at 286 (Hogen Dep. 197:12–23).  
ECI tried to jack the MTBM into the retrieval shaft without success.  Id. at 300 (Marshall 
Dep. 25:19–26:5).                                                         
    ECI continues efforts to push the MTBM into the retrieval shaft.  ECI attempted to 
remove the reception seal to clear the MTBM’s path into the retrieval shaft.  ECF No. 90-1 

at 303 (Marshall Dep. 40:15–41:1).  Removing the seal proved difficult, id. at 272 (Hogen 
Dep. 144:13–18), and ECI performed grinding, cutting, and torching work to remove parts 
of the seal.  See id. at 301 (Marshall Dep. 31:20–32:12); 303–04 (Marshall Dep. 40:22–
41:1, 42:11–43:2).  There was also concern that the MTBM was frozen to the subsurface.  
Id. at 77 (Sopko Dep. 241:4–13).  To facilitate removal of the MTBM, freeze pipes near 

the reception seal were turned off.  Id. at 220 (Umlauf Dep. 151:23–152:21).  ECI also ran 
heaters near the MTBM during off-shift hours (roughly 14 hours a day).  Id. at 108.  One 
heater was located in the retrieval shaft, pointed toward the MTBM, while a second heater 
was located near the joint between the trailing can and pipe, pointed toward the MTBM 
from the other direction.  Id. at 108.  ECI ran the heaters to break, or weaken, the bond 

between the MTBM and the frozen subsurface.  Id. at 156 (Johnson Dep. 172:12–24).  ECI 
used poly sheeting to insulate the heaters, keeping the heat contained around the MTBM 
instead of diffusing down the tunnel or up the retrieval shaft.  Id. at 108; 157 (Johnson Dep. 
176:5–20).5  Despite these efforts, ECI’s additional jacking attempts were unsuccessful.  
See, e.g., id. at 303 (Marshall Dep. 40:22–25).  To provide additional jacking force, ECI 
planned to install a fourth hydraulic jack in the tunnel.  Id. at 332 (Marshall Dep. 153:5–

11).                                                                      
    The tunnel and shafts flood.  When ECI personnel arrived at the site of the Project 
on January 21, 2021, they found the launch shaft, retrieval shaft, and tunnel flooded.  ECF 
No. 90-1 at 308 (Marshall Dep. 57:8–58:6).  Pumping tests were performed on both shafts 
to confirm groundwater was continuously entering the tunnel system.  Id. at 109.  ECI 

engaged divers to investigate the flooding, who determined groundwater was flowing into 
the tunnel network from inside the MTBM.  Id. at 109, 309 (Marshall Dep. 63:9–24).6  
Shortly after the flood event, ECI started withholding payments from Keller.  ECF No. 62 
¶ 17.  ECI never advanced the MTBM into the retrieval shaft.  Id. ¶16.  Instead, “ECI gutted 
the interior of the MTBM and left its outer casing in place as the last ‘section’ of tunnel 

used to house the water main.”  Id.                                       
    The lawsuit.  Keller filed the operative six-count Amended Complaint on December 
1, 2021.  Am. Compl.  Count I is a claim on the surety bond against Fidelity and Zurich.  
Id. ¶¶ 35–44.  Count II is a breach-of-contract claim against ECI.  Id. ¶¶ 45–53.  Count III 
is a violation of the Minnesota Prompt Payment Statute, 

, against ECI.  


5    The parties dispute whether the insulation successfully contained heat within the 
MTBM.                                                                     

6    In part, water and sediment flowed through the circumferential cut.  ECF No. 90-1 
at 83 (Sopko Dep. 263:8–20).                                              

 ¶¶ 54–62.  Count IV is a claim under Minnesota’s Mechanic’s Lien Statute, 

, against ECI.  

 ¶¶ 63–70.  Count V is a claim of account stated against ECI.  

 
¶¶ 71–77.  Count VI is a claim for contractual costs, expenses, and attorneys’ fees, against 

ECI.  

 ¶¶ 78–79.  ECI filed its Answer and Counterclaims on December 13, 2021.  ECF 
No. 27.  ECI brings two counterclaims.  

  Count I is for breach of contract, 

 ¶¶ 37–42, 
and Count II is negligence, 

 ¶¶ 43–50.  The parties’ motions follow the end of discovery. 
                               II                                        
    Summary judgment is warranted “if the movant shows that there is no genuine 

dispute as to any material fact and the movant is entitled to judgment as a matter of law.”  
Fed. R. Civ. P. 56(a).  A fact is “material” only if its resolution might affect the outcome 
of the suit under the governing substantive law.  Anderson v. Liberty Lobby, Inc., 

 (1986).  A dispute over a fact is “genuine” only if “the evidence is such that a 
reasonable jury could return a verdict for the nonmoving party.”  

  “The evidence of the 

non-movant is to be believed, and all justifiable inferences are to be drawn in [its] favor.”  

 (citation omitted).  A “smoking gun” is not required for the non-movant to defeat 
a summary judgment motion.  Teleconnect Co. v. Ensrud, 

 (8th Cir. 1995).  
But the non-movant must show “more than mere speculation, conjecture, or fantasy.”  Clay 
v. Credit Bureau Enters., Inc., 

 (8th Cir. 2014) (citation and quotations 

omitted); Zayed v. Associated Bank, N.A., 

 (8th Cir. 2019). 
                               A                                         
    Keller seeks summary judgment as a matter of law that ECI is not entitled to any 
delay-related damages.  ECF No. 66 at 5.  The Subcontract only allows ECI to recover 
delay-related damages from Keller for damages arising from “defective or malfunctioning 
equipment provided by Keller and directly employed in the ground freezing operation.”  
ECF No. 89 at 7 (quoting ECF No. 62-1 at 15).  Keller argues there is no evidence in the 

record that its equipment malfunctioned or was defective.  ECF No. 66 at 11.  ECI does 
not dispute Keller’s interpretation of the Subcontract, ECF No. 89 at 3, but ECI opposes 
summary judgment on two grounds.                                          
    First, ECI argues, “at summary judgment, the moving party must present competent, 
admissible evidence—and because Keller failed to do that here, summary judgment is 

improper.”  ECF No. 89 at 6.  ECI contends that Keller has failed to provide competent, 
admissible evidence because “Keller’s motion rests entirely on an attorney affidavit (where 
the  affiant  has  no  actual,  firsthand  knowledge)  riddled  with  hearsay  and  foundation 
problems.”  

  This critique misses the mark—a movant’s initial burden at summary 
judgment depends on which party bears the burden of proof at trial.  After discovery, a 

movant will be entitled to summary judgment “against a party who fails to make a showing 
sufficient to establish the existence of an element essential to that party’s case, and on 
which that party will bear the burden of proof at trial.”  Celotex Corp. v. Catrett, 

 (1986).  As the Supreme Court explained in Celotex, the movant’s burden “may 
be discharged by ‘showing’–that is, pointing out to the district court—that there is an 

absence of evidence to support the nonmoving party’s case.”  

.  “[T]his initial 
burden on the movant is ‘far from stringent’ and ‘regularly discharged with ease.’”  Bedford 
v. Doe, 

 (8th Cir. 2018) (quoting St. Jude Med., Inc. v. Lifecare Int’l, 
Inc., 

, 596 (8th Cir. 2001)).  “In other words, if the nonmoving party must 
prove X to prevail, the moving party at summary judgment can either produce evidence 
that X is not so or point out that the nonmoving party lacks the evidence to prove X.”  Id. 
at 996–97.                                                                

    ECI has the burden of proof at trial because Keller seeks partial summary judgment 
against the delay-related damages component of ECI’s breach-of-contract counterclaim.  
Because ECI has the burden of proof at trial, Keller is not required to affirmatively produce 
evidence that Keller’s ground-freeze equipment did not malfunction.  Rather, it may move 
for summary judgment by pointing out ECI lacks the evidence to prove that Keller’s 

equipment malfunctioned or was defective.  ECI, as the nonmoving party, must then 
demonstrate the existence of specific facts in the record that create a genuine issue for trial.  
Anderson, 477 U.S at 256.                                                 
    Second, ECI claims there is a genuine issue of material fact whether Keller’s 
temperature-monitoring  equipment  malfunctioned.    This  issue  presents  a  close  call.  

Although  ECI  contends  “the  record  is  replete  with  evidence  showing  that  Keller’s 
equipment was defective or malfunctioning,” the only “non-exhaustive” example relates to 
Keller’s  temperature-monitoring  equipment.    ECF  No.  89  at  14–20.    Without  direct 
evidence of temperature-monitoring equipment malfunctions, ECI relies on circumstantial 
evidence.                                                                 

    (A) ECI starts by claiming “Keller’s design proposal predicted that it would take 
between six and eight weeks for the freeze to form, at which time ECI could begin 
excavating and recovering the MTBM.”  ECF No. 89 at 15.  It further cites to a deposition 
of Joseph Sopko, Keller’s director of ground freezing, as follows:        
    Q: So in other words, this means, once you turn the freeze system on, Keller’s 
    estimating that it will take six to eight weeks for the freeze to reach the point where 
    ECI can begin undertaking to complete its microtunneling activities, right? 

    A: Right.                                                            

Id.  However, by late December, after the ground-freeze system was running for roughly 
four weeks, Keller concluded the freeze was sufficient for ECI to start recovery efforts.  
ECF No. 90-1 at 85 (Sopko Dep. 272:16–273:4).  According to ECI, this is circumstantial 
evidence the beadedstreams in the temperature monitoring pipes were reporting colder than 
actual temperatures, and thus malfunctioning by transmitting inaccurate data.  ECF No. 89 
at 16.                                                                    
    There is some contrary evidence in the record.  Although the proposal states, “the 
following sequence will occur . . . [i]nitiate freezing for six to eight weeks,” ECF No. 90-1 
at 4, the proposal later notes that “the frozen mass will be formed in approximately 28 
days” id. at 6.  In his deposition, Sopko addressed this discrepancy:     
    Q: Why did you select six to eight weeks as the appropriate time frame for the 
    freeze?                                                              

    A: Well, if you would look at the model that we were just showing, it was really 
    frozen in 28 days, or six weeks would be 42 days.  But because this always ends up 
    in a, you know, contractual issue, that that’s six – the 28 freeze days are days of, 
    you know, plant operating completely.  We always add extra time, particularly in a 
    job where there’s going to be generator power.  You – you know, you’re going to 
    have – you need 28 really nice, cold freezing days, but we like to put that in there 
    because there are things that – that could delay the freeze.         

    . . .                                                                

    Q: So sort of in short, while you – your model says it only will take 28 freeze days 
    for the freeze formation to be satisfactory to you –                 

    A: Uh-huh.                                                           
    Q:-- you built in a little bit of cushion, just out of an abundance of caution, and 
    freeze it for a bit longer, is that right?                           

    A: Contingency.                                                      

ECF No. 90-1 at 49–50, (Sopko Dep. 129:2–130:8).  Sopko testified these delays “didn’t 
happen on this job.”  Id. at 50 (Sopko Dep. 130:19–20).  However, when explaining the 
January 3, 2021, authorization to excavate, Sopko testified the full six to eight weeks was 
not required because “[t]he freeze froze faster than the [design] model,” id. at 85 (Sopko 
Dep. 273:9–13), and because “the measured temperatures were a lot colder than we 
anticipated.”  Id. (Sopko Dep. 273:19–20).  Viewing the facts in the light most favorable 
to the nonmoving party, it is necessary to accept that the ground froze faster than the model 
predicted.7    This  circumstantial  evidence  somewhat  supports  an  inference  that  the 
beadedstreams in the temperature monitoring pipes were malfunctioning.    
    (B)  Next,  ECI  argues  the  failure  for  the  flood  event  to  register  on  Keller’s 
temperature monitoring pipes is evidence the sensors were not transmitting accurate data.  
ECI contends “although water (which, by definition, is above freezing temperature) was 
present in the tunnel and throughout the freeze zone, Keller’s temperature-monitoring 
equipment registered no changes.”  ECF No. 89 at 17.  Because the entry point for the 
groundwater was within the proximity to the MTBM, within the freeze zone, ECI claims 

the failure for the temperature-sensors in the temperature monitoring pipes to record 


7    It is not clear from the record how Keller’s measured temperatures compared to the 
as-built model.                                                           
increased  temperatures  demonstrates  that  the  temperature  sensors  were  defective  or 
malfunctioning.  See id. at 18.                                           
    There is a question whether the temperature monitoring pipes should have recorded 

a  substantial  change  in  temperature  before  or  during  the  flood  event.    In  Sopko’s 
deposition, he testified the temperature monitoring pipes “measure the temperature right 
where they are.  They can’t measure outside of it.”  ECF No. 90-1 at 52 (Sopko Dep. 
138:13–14).  When asked about warm water flowing through voids in the freeze zone, 
Sopko testified temperature monitoring pipes would pick up the void “if [the temperature 

monitoring pipes] happen to be in the location of the void, sure.”  Id. at 87 (Sopko Dep. 
280:12–13).  But there is contrary evidence in the record that the temperature monitoring 
pipes should have detected a breach inside the frozen mass.  Keller initially was convinced 
the breach was not in the freeze zone because Keller’s temperature-monitoring equipment 
did not report significant changes in temperature.  Id. at 80–81 (Sopko Dep. 253:19–

254:21).  In particular, Sopko testified in his deposition that he would have expected a 
breach in the frozen mass to show up in the data transmitted by the temperature monitoring 
pipes.  Id. at 80–81 (Sopko Dep. 253:19–254:21).  And viewing the facts in the light most 
favorable to ECI, the breach occurred within the freeze zone.  See, e.g., id. at 81 (Sopko 
Dep. 256:17–257:11).  Moreover, there is some evidence of a void (empty space left by 

subsurface eroding into the tunnel system) near a temperature monitoring pipe.  Id. at 83 
(Sopko Dep. 263:8–264:9).  This is circumstantial evidence that Keller’s beadedstreams in 
its temperature monitoring pipes malfunctioned.                           
    (C)  Finally,  ECI  argues  “Keller’s  temperature-monitoring  equipment  wasn’t 
working properly because its internal sensors were frozen in place, causing them to 
transmit inaccurate data about ground temperatures within the so-called ‘freeze zone.’”  

ECF No. 89 at 14.  To support this theory, ECI provides three emails and a paragraph in an 
affidavit.  ECF No. 91 ¶ 3; see also ECF No. 91-1 at 2.  On June 2, 2021, an ECI employee 
emailed Keller stating “there is [sic] apparently some issues with removing some of the 
temperature pipes that are frozen in?  Not sure why they are frozen in.”  ECF No. 91-1 at 
2.  A Keller employee responded the same day, explaining “[w]e are not sure what the issue 

is.  Its [sic] possible that freshwater got into the top of the pipes and froze on the surface. . . .  
Our plan is to drop a pipe down the temperature monitor and circulate hydrant water to 
attempt to melt the ice (if its [sic] ice) within the temperature pipe.  We would only be 
using this to free up maybe the top 10-feet.  If the blockage is below this, this method wont 
[sic] be enough.”  Id. at 2.                                              

    To start, there is contradictory evidence in the record whether frozen temperature 
monitoring pipes would transmit inaccurate data.  Sopko testified frozen water in the 
temperature monitoring pipes would not impact recorded temperatures:      
    Q: Okay.  And do you ever use water in the temperature monitoring pipes as the 
    liquid?                                                              

    A: Not on purpose.  There’s been times – you could.  There’s been times where 
    surface flooding has flooded pipes.  You’d get the same data.  But when you put – 
    if you did put water in, you know, it would freeze, which is fine, you get data.  Just 
    if you ever have to pull out your temperature string or anything it would be a lot 
    harder.                                                              

    Q: So you’d get the same data from a temperature monitoring pipe that is filled with 
    this calcium chloride brine as you would from a temperature monitoring pipe that is 
    filled with frozen water?                                            

    A: Yes.                                                              
    Q: Okay.                                                             
    A: Yeah, I’ve filled them with sand in some cases too.               
    Q: Okay.  Doesn’t the thing that’s within the temperature monitoring pipe affect at 
    all the thermistor’s ability to read ground temperatures?            

    A: No.                                                               
ECF No. 90-1 at 59 (Sopko Dep. 166:8–167:4).  However, ECI’s expert, Dr. Arthur 
McGinn, opined “a frozen brine solution in a TMP would register with a false positive that 
the formation was fully established and maintained, thereby inaccurately conveying that it 
was safe for ECI personnel to engage in construction activities in the retrieval shaft and in 
the tunnel.”  ECF No. 74-1 at 864.  At this stage, viewing the facts in ECI’s favor, it is 
reasonable to conclude that frozen temperature monitoring pipes would transmit inaccurate 
data.                                                                     
    Regardless, the link between these emails and the flood event is tenuous.  The emails 
and affidavit demonstrate that the temperature monitoring pipes were frozen in June 2021.  

But this evidence does little to show the temperature monitoring pipes were frozen months 
earlier in December 2020 or January 2021, before the flood event occurred.  And the emails 
convey a lack of certainty about the problem.  Statements such as “[the pipes are] not 
supposed to be like that at all,” and “[w]e are not sure what the issue is.  Its [sic] possible 
that freshwater got into the top of the pipes and froze on the surface,” do little to suggest 

the problem is months old.  Without more evidence, it is difficult to infer the temperature 
monitoring pipes froze before the flood event.  Even when considered in conjunction with 
ECI’s other circumstantial evidence, ECI’s evidence that the temperature monitoring pipes 
were  frozen  in  June  2021  is  at  best  weak  circumstantial  evidence  the  temperature 

monitoring pipes were frozen (and thus malfunctioned by transmitting inaccurate data) 
prior to the flood event.                                                 
    Nonetheless, taken collectively, accepting all of ECI’s evidence as true, and drawing 
all justifiable inferences in its favor, Keller’s motion for summary judgment will be denied.  
There is no dispute the beadedstreams were equipment provided by Keller and directly 

employed in the ground freezing operation.  And with the summary-judgment standard in 
mind, ECI presented facts showing: (1) the beadedstreams in the temperature monitoring 
pipes reported data indicating the freeze formed faster than expected; (2) if properly 
functioning the beadedstreams would detect a flood event within the freeze zone; (3) the 
groundwater  and  soil  flowed  into  the  MTBM  from  within  the  freeze  zone;  (4)  the 

temperature monitoring pipes did not detect the flood event; and (5) the beadedstreams 
may have transmitted lower than actual temperatures because the temperature monitoring 
pipes were frozen.8  Because this is enough for a reasonable factfinder to conclude Keller’s 

8    It  is  worth  noting  ECI’s  theory  raises  several  questions.    There  are  multiple 
temperature  monitoring  pipes  with  beadedstreams  containing  temperature  sensors  at 
different depths.  Is ECI suggesting all of the sensors on all of the beadedstreams were 
reporting lower than actual temperatures?  If not all of the sensors, which ones, and why is 
there no evidence of discrepancies between temperature readings in the record?  What 
about the temperature sensor monitoring the returning brine from the freeze pipes and the 
portable datalogger in the MTBM, were those sensors also reporting lower than actual 
temperatures?  But such questions about ECI’s theory are better resolved at trial with the 
benefit of a complete factual record, cross examination, and the ability to resolve disputed 
facts.                                                                    
temperature-monitoring equipment malfunctioned, genuine issues of material fact remain 
for trial.                                                                
                               B                                         

    Keller also seeks summary judgment on ECI’s “liquidated damages claim.”9  Keller 
argues “summary judgment is proper because ECI has not yet been damaged by the mere 
threat of the imposition of liquidated damages.”  ECF No. 66 at 13.  Because ECI has not 
yet paid liquidated damages to the City, Keller contends the “damages are, therefore, 
speculative, and unrecoverable under the law.”  ECF No. 66 at 15.         

    Keller is correct that contractual damages may not be “speculative, remote, or 
conjectural.”  Bollom v. Brunswick Corp., 

, 1222 (D. Minn. 2020).  
But it is necessary to start with the elements of breach of contract.  Under Minnesota law, 
a breach-of-contract claim requires: “(1) a valid contract; (2) performance by the plaintiff 
of any conditions precedent; (3) a material breach of the contract by the defendant; and (4) 

damages.”  Russo v. NCS Pearson, Inc., 

 (D. Minn. 2006) (citation 
omitted); see Park Nicollet Clinic v. Hamann, 

 (Minn. 2011) (same).  
Keller’s objection relates to the damages element of ECI’s breach-of-contract claim.  “In 
order to survive summary judgment, [ECI] must raise a genuine issue of material fact 


9    This issue deserves clarification.  ECI brought two claims: negligence and breach 
of contract.  ECF No. 27 ¶¶ 37–50.  ECI did not bring a separate claim for liquidated 
damages, nor is it seeking liquidated damages from Keller.  See generally 

  A contract 
between the City and ECI “set liquidated damages for delay in the amount of $5,000 for 
each day that expires after the date set for substantial completion.”  ECF No. 75-1 at 20.  
ECI alleges Keller’s breach of contract and negligence caused the flood event, which 
resulted in delays to the Project.  ECF No. 27 ¶ 36.  Thus, ECI seeks to recover (from 
Keller) a portion of the liquidated damages it will pay to the City.      
regarding whether [Keller’s] alleged breach of the [contract] caused [it] damages.”  Bollom, 
453 F. Supp. 3d at 1221.  In Bollom, for example, the court granted summary judgment 
because “[a]ny calculation of a particular amount of general damages would be wholly 

speculative.”  Id. at 1222.  By contrast, Keller contends only some of ECI’s damages are 
speculative.  Because Keller does not dispute ECI incurred monetary damage from the 
flooding to a reasonable level of certainty, the fourth element of ECI’s breach of contract 
claim is satisfied.10                                                     
    Even if Keller could challenge a subset of ECI’s damages as speculative at summary 

judgment, there is a genuine issue of material fact as to the certainty of ECI’s damages.  
Although Keller contends ECI has not yet incurred any liquidated damages, ECF No. 66 at 
14, a reasonable factfinder could conclude that the exact amount of liquidated damages 
ECI owes to the City is known—$2,815,000.  ECF No. 75-1 at 20.  In turn, ECI’s 
scheduling  expert  attributes  96  days  of  delay,  amounting  to  $480,000  of  liquidated 

damages, to Keller.  ECF No. 66 at 14.  And in the context of standing and ripeness in a 
related case, Judge Wright explained why this specific amount is sufficiently certain: 
         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      

10   The same conclusion follows for ECI’s negligence claim.              
         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.                                                 

Eng’g  &  Constr.  Innovations,  Inc.  v.  Bradshaw  Constr.  Corp.,  No.  20-cv-0808 
(WMW/TNL), 

, at *10 (D. Minn. Sept. 25, 2023).  In short, a reasonable 
factfinder could conclude the challenged damages are sufficiently certain. 
                              III                                        
    Rule 702 of the Federal Rules of Evidence governs the admissibility of expert 
testimony.  That rule 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 the proponent demonstrates to the court 
         that it is more likely than not that:                           
         (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’s opinion reflects a reliable application of the 
         principles and methods to the facts of the case.                
Fed. R. Evid. 702; see also Daubert v. Merrell Dow Pharms., Inc., 

 (1993).  
“District  courts  have  wide  latitude  in  determining  whether  an  expert’s  testimony  is 
reliable.”  Olson v. Ford Motor Co., 

, 626 (8th Cir. 2007).  The Eighth Circuit 
has identified a number of factors courts may consider in determining whether an expert’s 
testimony is the product of “reliable principles and methods,” including: 
         (1) whether the theory or technique can be (and has been)       
         tested; (2) whether the theory or technique has been subjected  
         to  peer  review  and  publication;  (3)  whether  the  theory  or 
         technique has a known or potential error rate and standards     
         controlling  the  technique’s  operation;  and  (4)  whether  the 
         theory  or  technique  is  generally  accepted  in  the  scientific 
         community.                                                      

Smith v. Cangieter, 

 (8th Cir. 2006).  “This evidentiary inquiry is meant 
to be flexible and fact specific, and a court should use, adapt, or reject Daubert factors as 
the particular case demands.”  Unrein v. Timesavers, Inc., 

 (8th Cir. 
2005).  As long as the evidence indicates that the expert evidence is reliable and relevant, 
“no single requirement for admissibility” governs.  

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

 (8th Cir. 2001); Fed. R. Evid. 702.  “As a general 
rule, the factual basis of an expert opinion goes to the credibility of the testimony, not the 
admissibility, and it is up to the opposing party to examine the factual basis for the opinion 
in cross-examination.”  Bonner v. ISP Techs., Inc., 

 (8th Cir. 2001) 
(quotation  omitted).    But  the  court  must  exclude  an  expert’s  opinion  if  it  “is  so 
fundamentally unsupported that it can offer no assistance to the jury.”  

 at 929–30 
(quotation omitted).  “Expert testimony is inadmissible 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).  Furthermore, “under Daubert and Rule 403 of the 
Federal Rules of Evidence, the probative value of the expert testimony must not be 
substantially  outweighed  by  the  danger  of  unfair  prejudice,  confusion  of  issues,  or 
misleading the jury.”  United States v. Solorio-Tafolla, 

 (8th Cir. 2003). 
                               A                                         
    Keller moves to exclude the testimony of ECI’s engineering expert, Dr. Arthur 
McGinn.  ECF No. 77.  Dr. McGinn holds a M.S. and B.S. in Civil Engineering from 

Purdue University, and a Ph.D. in Geotechnical Engineering from Cornell University.  ECF 
No. 74-1 at 869.  He is a licensed Professional Engineer with expertise as a civil engineer 
in  the  geotechnical  and  structural  design  of  excavation  support  systems  for  tunnels, 
underpinning systems, and foundations.  Id. at 840, 869.  He has ten publications on soil 
stabilization, id. at 891–92, and over 25 years of civil engineering experience, id. at 869.  

Dr. McGinn is currently the president and CEO of Brierley, a civil engineering firm that 
“specializes in the design and construction of tunnels and heavy civil projects for water, 
wastewater, transportation, and other infrastructure.”  Id. at 839, 869.  
    Dr. McGinn offers five opinions in his report: (1) that Keller breached professional 
engineering standards by failing to consider ECI’s MTBM extraction methods when 

designing the ground-freeze (and failing to modify the design after becoming aware of 
ECI’s methods), ECF No. 74-1 at 837; (2) Keller breached professional engineering 
standards by “failing to verify the effectiveness of the temperature monitoring points,” id.; 
(3) Keller breached professional engineering standards by failing to verify the effectiveness 
of the ground-freeze via proven methods, id. at 837–38; (4) the frozen mass failed to fully 

form in advance of ECI’s work on the project, and Keller’s temperature monitoring 
program  was  “incapable  of  detecting  the  actual  temperatures  within  the  ground  and 
groundwater”  around  the  MTBM,  id.  at  838;  and  (5)  Keller  breached  professional 
engineering standards by relying on unverified data to substantiate its model, “failing to 
recognize  the  as-built  temperatures  were  not  as  Keller  assumed,”  and  removing  the 
datalogger from the MTBM, id.                                             
    Keller acknowledges Dr. McGinn qualifies to testify as a tunneling expert, but 

contends he is not qualified as a ground-freeze expert, arguing “only an engineer practicing 
in the same field at the same time can opine on whether Keller has met its standard of care.”  
ECF No. 92 at 5.  Because Dr. McGinn lacks specialized knowledge, education, or 
experience working on ground-freeze systems, Keller asserts he is unqualified to “render 
any opinions or testimony in this case.”  Id. at 6.  It is true that even when a witness has 

specialized knowledge, “qualification to testify as an expert also requires that the area of 
the  witness’s  competence  matches  the  subject  matter  of  the  witness’s  testimony.”  
29 Charles A. Wright & Victor J. Gold, Federal Practice and Procedure: Evidence § 
6264.2 (2d ed. Apr. 2023 Update).  According to this principle, “courts will prevent a 
witness from testifying as an expert where the witness has specialized knowledge on one 

subject but offers to testify on a different subject.”  Id.  For example, a hydrologist 
specializing in flood risk management qualified as an expert under Rule 702 but lacked the 
expertise to testify about safe warehousing practices to protect steel from floods.  Wheeling 
Pittsburgh Steel Corp. v. Beelman River Terminals, Inc., 

, 715–16 (8th Cir. 
2001).  Likewise, an expert in metallurgy could not testify about the lung’s ability to absorb 

manganese from welding fumes, Jones v. Lincoln Elec. Co., 

, 723–24 (7th 
Cir. 1999), and an expert appraiser could offer an expert opinion on the value of an antique 
item but not that a clock originated from a particular historical period, Levin v. Dalva Bros., 
Inc., 

, 78–79 (1st Cir. 2006).                                 
    But  Keller  discounts  Dr.  McGinn’s  qualifications  as  a  geotechnical  and  civil 
engineer.  An expert with more generalized knowledge in a field can typically testify even 
if they are not a specialist.  29 Charles A. Wright & Victor J. Gold, Federal Practice and 

Procedure: Evidence § 6264.2 (2d ed. Apr. 2023 Update).  For example, In Southern 
Minnesota Beet Sugar Cooperative v. Agriculture Systems, the court found a mechanical 
engineer was qualified to opine on the alleged negligent design of sugar-storage silos 
despite  the  expert  lacking  specific  education  or  experience  regarding  silo  reclaimer 
systems.  No. 17-cv-5552 (WMW/BRT), 

, at *4 (D. Minn. Aug. 31, 

2020).  The court concluded the mechanical engineer “qualifies as an expert regarding the 
mechanical engineering applicable to the reclaimer system.”  

  By the same virtue, Dr. 
McGinn qualifies as an expert regarding the geotechnical and civil engineering principles 
applicable to Keller’s ground-freeze operations.  ECI has adequately demonstrated that 
geotechnical engineering is a subfield of civil engineering, and ground-freezing is at most 

a specialty within the subfield of geotechnical engineering.  Robinson v. GEICO General 
Insurance Co. supports the conclusion that Dr. McGinn’s testimony should not be excluded 
wholesale.  

 (8th Cir. 2006).  In Robinson, the Eighth Circuit affirmed a 
district court’s decision to allow a neurologist to testify regarding “the likely type of injury 
one would sustain by the impact” and “the direction one would be forced in a rear-impact 

collision,” in addition to the onset of shoulder pain within the expert’s specialty.  

.  The Eighth Circuit explained “a physician with general knowledge may testify 
regarding medical issues that a specialist might treat in a clinical setting.”  

  It follows 
that a geotechnical and civil engineer can testify, at least to some extent, about ground-
freeze systems designed and operated by specialists.11                    
    And Keller has not explained why geotechnical and civil engineering standards do 

not apply to ground-freeze systems, nor has it identified specific, critical knowledge Dr. 
McGinn lacks.  For example, in Mattke v. Deschamps, the plaintiff’s expert in sleep 
disorders and pulmonology (a specialty relating to respiratory conditions) was not qualified 
to  testify  about  the  actions  of  Mayo  Clinic’s  pathology  department  to  prevent 
contamination by cellular floaters.  

, 671–72 (8th Cir. 2004).  There, the expert 

testified he was not familiar with cellular floaters, did not know how often they occurred, 
and did not know what measures modern pathology laboratories took to avoid floaters.  Id.  
Dr. McGinn’s experience here is not a completely unrelated specialty—he is a qualified 
civil and geotechnical engineer, essentially the same education as Dr. Alan Auld, Keller’s 
ground-freeze  expert.    Unlike  a  sleep-disorder  and  pulmonary  physician  opining  on 

laboratory procedures to prevent a phenomenon the expert testified knowing nothing about, 
it is reasonably within Dr. McGinn’s expertise to apply, for example, geotechnical and civil 
engineering principles of data verification to Keller’s ground-freezing operation. 



11   There is another concern.  “Keller is one of a few companies in the USA that 
regularly performs ground freeze engineering work.”  ECF No. 80 at 5.  Following Keller’s 
rationale,  only  ground-freeze  engineers  with  industry  experience  could  testify  about 
Keller’s negligence.  “[T]o require the degree of specificity [Keller proposes comes] close 
to letting that industry indirectly set its own standards.”  Stagl v. Delta Air Lines, Inc., 

 (2d Cir. 1997); cf. 29 Charles A. Wright & Victor J. Gold, Federal Practice 
and Procedure: Evidence § 6264.2 (2d ed. Apr. 2023 Update).               
    To the extent this is a close call, it is resolved by the parties agreeing to a bench 
trial.  “The main purpose of Daubert exclusion is to protect juries from being swayed by 
dubious scientific testimony.”  In re Zurn Pex Plumbing Prods. Liab. Litig., 

 (8th Cir. 2011).  For this reason, courts “relax Daubert’s application for bench trials.”  
David E. Watson, P.C. v. United States, 

 (8th Cir. 2012).  The better 
answer is to decide what weight to give Dr. McGinn’s opinions, if any, at trial. 
                               B                                         
    ECI moves to exclude, in part, expert testimony of Dr. Alan Auld.  ECF No. 70.  Dr. 

Auld received his Honours Degree in Applied Science (Civil Engineering) from the 
University of Durham, and a Ph.D. in Civil Engineering from the University of Newcastle 
upon Tyne.  ECF No. 74-1 at 22.  He is a fellow of the Institute of Materials, Minerals and 
Mining, and was a licensed Canadian Professional Engineer before retiring.  

  Dr. Auld 
has more than forty years of experience “within the field of construction, particularly the 

design of deep mine shafts, tunnels and underground mine development works.”  

  In his 
career, he has worked on 18 projects employing artificial ground-freezes and has 16 
publications on the topic of ground freezing.  

 at 24–25.              
    Dr. Auld offers several opinions, including: (1) “Keller’s Ground Freezing Proposal 
clearly set out the terms under which its business was to be carried out in accordance with 

generally-accepted standards and principles that govern professional engineers,” ECF 
No. 74-1 at 16; (2) “Keller’s work was completed in accordance with the Contract,” id.; 
(3) ECI’s failure to seal the circumferential cut, relief slot, and dirt wing prior to carrying 
out welding “caused the melting of the frozen ground above the tunnel roof at the extremity 
of the frozen ground and allowed the groundwater and sand to enter the tunnel through the 
unsealed openings,” id. at 17; (4) “the work carried out inside the tunnel using heat 
activities, and the use of heaters, including the welding to install the jack at 12 o’clock 

could be the main contribution in causing the flood event,” id. at 97; (5) the MTBM “was 
concreted in” by ECI grouting the area around the MTBM head, id. at 14; (6) “ECI hung a 
thin sheet of polyurethane like a drape at the end of the Trailing Can, which was not 
sufficient insulation to prevent the heat from passing down the tunnel,” id. at 6; (7) in his 
rebuttal report, Dr. Auld opined “ECI had a duty of care under the Subcontract to provide 

the necessary information for Keller,” and “[t]he failure of ECI to pass on proper written 
instructions to Keller constitutes a breach of ‘duty of care’ by ECI,” id. at 115–16; and (8) 
Keller’s scope of work on the Project was to provide a ground-freeze, “Keller did not 
guarantee that ECI would recover the MTBM—that was ECI’s scope of work,” id. at 5. 
    (1) ECI seeks to exclude Dr. Auld’s supplemental report.  On September 14, 2023, 

Keller sent a copy of Dr. Auld’s supplemental report to ECI, a report that contained 
additional calculations to support his opinions.  ECF No. 74-1 at 483–84; ECF No. 86-1 at 
15–23.  There is no dispute that Dr. Auld’s supplemental report was written and disclosed 
after the deadlines for expert discovery had passed.  See ECF No. 55. 12  
    Federal  Rule  of  Civil  Procedure  26(a)(2)  requires  the  timely  disclosure  of 

supplemental expert testimony.  See also Wegener v. Johnson, 

 (8th Cir. 


12   Initial expert reports were due on June 1, 2023.  ECF No. 55 at 1.  Rebuttal expert 
reports were due on July 14, 2023.  

  Expert discovery, including depositions, was to be 
completed on or before August 18, 2023.  Id. at 2.                        
2008).  “Since failure to disclose in a timely manner is equivalent to failure to disclose,” 
Trost v. Trek Bicycle Corp., 

 (8th Cir. 1998), Rule 37(c)(1) provides 
the applicable standard: “If a party fails to provide information or identify a witness as 

required by Rule 26(a) or (e), the party is not allowed to use that information or witness to 
supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially 
justified or is harmless.”  See Fed. R. Civ. P. 37(c)(1).  Therefore, the supplemental report 
may be excluded “as a self-executing sanction unless the party’s failure to comply is 
substantially justified or harmless.”  Wegener, 

.  Courts have outlined four 

factors to consider in determining whether a failure to disclose was substantially justified 
or harmless: “(1) the importance of the excluded material; (2) the explanation of the party 
for the failure to comply with the disclosure rules; (3) the potential prejudice from allowing 
the material to be used at trial; and (4) the availability of a continuance to cure such 
prejudice.”    PUR  Water  Purification  Prods.  v.  Brita  Prods.  Co.,  No.  99-cv-749 

(PAM/JGL), 

, at *1 (D. Minn. Mar. 14, 2001) (Magnuson, J.) (citing 
Citizens Bank v. Ford Motor Co., 

 (8th Cir. 1994)); see also Mathers v. 
Northshore Mining Co., 

, 482–83 (D. Minn. 2003); Wegner, 

.                                                                      
    The first factor is the importance of the excluded material.  In his supplemental 

report, Dr. Auld provides calculations on three topics: how fast water flowed into the 
tunnel, the force required to stop the incoming water, and grout bond resistance.  ECF No. 
86-1 at 15–23.  The first two sets of calculations purport to show that if ECI personnel were 
monitoring the MTBM when the leak started, they could have stopped the flood event or 
exited safely.  Id. at 16.  The grout bond resistance calculations purport to show ECI was 
unable to jack the MTBM into the retrieval shaft because it was cemented in place.  Id.  
The parties do not explain how, or if, these calculations are important.  Considering the 

calculations do not relate to the success or failure of the ground-freeze, and a second expert 
for Keller (Paul Wilkinson) opines that the MTBM was cemented in place, it suffices to 
say Dr. Auld’s supplemental report does not seem critical.                
    The second factor is Keller’s justification for the late supplemental report.  Keller 
explains only that “[Dr.] Auld expressly reserved the right to supplement his analysis.”  

ECF No. 85 at 14.  This does not allow Keller to ignore discovery deadlines.  Dr. Auld 
appears to have supplemented his report in response to deposition questions, rather than in 
response to new information.  Id. at 15; ECF No. 86-1 at 15.  Fixing flaws exposed at a 
deposition is not a valid justification for a late supplemental report.  See Petrone v. Werner 
Enters., Inc., 

, 434–36 (8th Cir. 2019).  Dr. Auld’s report is not a justifiably 

late response to an opposing party’s late expert disclosure, PUR Water, 

, 
at *2, or the result of reviewing new documents disclosed after the close of discovery, 
Bison Advisors LLC v. Kessler, No. 14-cv-3121 (DSD/SER), 

, at *10 
(D. Minn. Jan. 21, 2016).  Because Keller provides no valid justification for Dr. Auld’s late 
supplemental report, this factor strongly supports exclusion.             

    The third factor is prejudice.  In Jackson v. Allstate Insurance Co., a late disclosure 
of a supplemental report was harmless, not prejudicial.  

, 1203–04 (8th Cir. 
2015).  There, the plaintiff fully deposed the defendant’s expert with respect to a late field 
study and never requested a supplemental deposition.  

.  Not so here.  ECI 
already deposed Dr. Auld, and Dr. McGinn disclosed a timely rebuttal report.  ECI has 
been prejudiced by losing the opportunity to depose Dr. Auld and provide rebuttal expert 
testimony regarding the new information in Dr. Auld’s supplemental report.  Moreover, if 

considered, Dr. Auld’s supplemental report would affect ECI’s pending motion to exclude 
Dr. Auld’s testimony.  This prejudice supports exclusion.                 
    The fourth factor is the ability to cure the prejudice.  In Lenzen v. Garon Products, 
Inc., Judge Nelson declined to strike late expert affidavits, instead requiring a plaintiff to 
make the experts available for two hours of additional deposition time.  No. 09-cv-2893 

(SRN/AJB), 

, at *6 (D. Minn. Apr. 23, 2012).  Allowing ECI to further 
depose Dr. Auld and permitting Dr. McGinn to supplement his rebuttal report might cure 
the prejudice to ECI.  This possibility weighs against exclusion.  But because Keller 
provided no valid justification for Dr. Auld’s late supplemental report and the contents are 
not critical to Keller’s case, the supplemental report’s late disclosure is not substantially 

justified or harmless and will be excluded.  Dr. Auld may not testify about the contents of 
the supplemental report at trial, nor will it be considered when deciding ECI’s motion to 
exclude Dr. Auld’s expert testimony.                                      
    (2) Dr. Auld’s expert testimony that heaters contributed to the flood event will be 
excluded.    Daubert  requires  “a  preliminary  assessment  of  whether  the  reasoning  or 

methodology underlying the testimony is scientifically valid and of whether that reasoning 
or methodology properly can be applied to the facts in issue.”  Daubert, 509 U.S. at 592–
93.  “Generally speaking, an expert’s methodology should be deemed reliable when that 
expert derives her courtroom opinions using the same level of rigor that characterizes 
practice in the relevant field of expertise.”  29 Charles A. Wright & Victor J. Gold, Federal 
Practice and Procedure: Evidence § 6268.1 (2d ed. Apr. 2023 Update).  Courts typically 
exclude expert testimony when an expert fails to identify any methodology.  Ahlberg v. 

Chrysler Corp., 

, 635 (8th Cir. 2007); Varlen Corp. v. Liberty Mut. Ins. Co., 

 (7th Cir. 2019); Koken v. Black & Veatch Const., Inc., 

 
(1st Cir. 2005).                                                          
    Dr. Auld’s opinion that the heaters caused the flood event is not supported by 
reliable principles and methods.  In his deposition, Dr. Auld testified he used “[n]o 

scientific methodology,” stating his conclusions are based on “the fact that [ECI] used the 
heater and the flooding occurred.”  ECF No. 74-1 at 321 (Auld Dep. 158:14–16).  Dr. Auld 
did not perform any calculations to reach his conclusion that heaters caused the flood event, 
id. at 321 (Auld Dep. 158:4–7), or consider any alternative possible causes, id. 307 (Auld 
Dep. 144:19–22).  Without identifying any reliable principles or methods, Dr. Auld’s 

expert opinion that the heaters caused the flood event will be excluded.  
    Keller counters that “a witness who is qualified as an expert by his knowledge, skill, 
experience, training, or education may provide testimony in the form of an opinion.”  ECF 
No. 85 at 4.  This ignores the problem.  Under Rule 702, expert qualifications are a 
necessary—but not sufficient—predicate to admissibility.  See, e.g., Polski v. Quigley 

Corp., 

, 839–40 (8th Cir. 2008).  As the Eighth Circuit explained in Marmo, 
“the proponent of the expert testimony must show by a preponderance of the evidence both 
that the expert is qualified to render the opinion and that the methodology underlying his 
conclusions is scientifically valid.”  457 F.3d at 757–58 (emphasis added).  Dr. Auld’s 
heater opinion fails to meet the latter requirement.  Keller further argues that because in 
Bonner v. ISP Technologies, Inc., “it was not necessary that [plaintiff’s] experts quantify 
the amount of [product] to which she was exposed,” Dr. Auld does not need to calculate 

“the exact amount of temperature of the heat ECI applied to the freeze in the tunnel.”  

.  Fair enough.  Dr. Auld did not need to calculate the exact number of kilojoules 
generated by the heaters for his testimony to be admissible—a variety of principles or 
methods could have been sufficiently reliable.  The problem is that Dr. Auld has not 
explained what principles and methods, if any, he relied upon.  In Bonner, the court 

explained “the district court carefully reviewed Dr. Martinez’s methodology and concluded 
that it was sufficiently reliable.”  

.  Here, there is no such methodology to examine. 
    (3) Dr. Auld’s grouting opinion will be excluded for the same reason.  Once again, 
Dr. Auld did not perform any calculations or analysis to conclude ECI’s grouting near the 
retrieval shaft prevented the MTBM from advancing.  ECF No. 74-1 at 430 (Auld Dep. 

267:12–16).  The basis for his conclusion was “[j]ust the fact that it’s grout.  It’s cement.”  
Id. at 432 (Auld Dep. 269:8–14).  He did not consider the volume of grout, id. at 432 (Auld 
Dep. 269:3–7) or the composition of the grout, id. at 430 (Auld Dep. 267:2–6), when 
reaching his conclusion.  For the same reasons discussed above, his opinion that grout 
prevented the MTBM from advancing into the retrieval shaft will be excluded because it 

is not the product of reliable principles and methods.                    
    (4) Dr. Auld’s opinion that ECI’s insulation was insufficient to contain the heat will 
be excluded on familiar grounds.  When asked for the basis of this opinion, Dr. Auld 
responded “no calculation or scientific validation.  Just an opinion.”  ECF No. 74-1 at 415 
(Auld Dep. 252:11–17).  He did not provide any methodology for his opinion, instead 
explaining the opinion was “[j]ust observation of the statement,” from “[r]eading the 
description of what [the insulation] was.”  Id. at 415–16 (Auld Dep. 252:18–253:1).  For 

the  same  reasons  discussed  above,  Dr.  Auld’s  opinion  lacks  reliable  principles  and 
methods.                                                                  
    (5) Dr. Auld’s opinions regarding ECI’s communications with Keller must be 
parsed more carefully.  “Matters of law are reserved exclusively for the Court.”  Taqueria 
El Primo LLC v. Ill. Farmers Ins. Co., 

, 987 (D. Minn. 2021) (citing 

S. Pine Helicopters, Inc. v. Phoenix Aviation Managers, Inc., 

, 841 (8th Cir. 
2003)).    For  this  reason,  expert  testimony  on  legal  issues  is  inadmissible.    S.  Pine 
Helicopters, 320 F.3d at 841.  Because the interpretation of an unambiguous contract is a 
matter of law, “[e]xperts may not testify to the meaning of a contract where the language 
is unambiguous.”  In re ResCap Liquidating Tr. Litig., 

, 923 (D. Minn. 

2020).  And an expert may not opine on a party’s duties under a contract, because a duty 
is a question of law.  See The Shaw Group, Inc. v. Marcum, 

 (8th Cir. 
2008).  Even when a contract is ambiguous, “an expert may not simply offer their personal 
opinion about a contract’s meaning or applicability.”  In re ResCap, 432 F. Supp. 3d at 
923.  However, experts may opine on industry standards, S. Pine Helicopters, 320 F.3d at 

841, and (if relevant) “how a reasonable industry participant would view certain contractual 
provisions or clauses.”  In re ResCap, 432 F. Supp. 3d at 923 (citing Kruszka v. Novartis 
Pharm. Corp., 

 (D. Minn. 2014)).                   
    Here, Dr. Auld contends there is a duty of care in the following provision of the 
Subcontract:  “Communications.    Contractor  understands  the  importance  of  good 
communications  and  will  (i)  give  Subcontractor  the  notice  to  proceed,  (ii)  keep 

Subcontractor informed of scheduling changes, and (iii) respond timely to Subcontractor’s 
questions and concerns.”  ECF No. 62-1 § 3(a).  More specifically, Dr. Auld agreed in his 
deposition that his “opinion is that the phrase ‘Contractor understands the importance of 
good communications’ is a freestanding obligation on ECI to inform Keller of certain 
things.”  ECF No. 74-1 at 366 (Auld Dep. 203:10–16).  It follows from The Shaw Group 

that Dr. Auld may not testify about ECI’s duties under the contract.  

 (“The 
court properly excluded any expert testimony as to Shaw’s duty under the contract, 
permitting [the expert witness] to testify only as to the ordinary business practices of those 
engaged in private contracting with the military.”).  And Keller does not expressly contend 
this provision is ambiguous, explain how the provision is ambiguous, or “suggest that the 

ambiguity involves terms of art or unique industry practices that Dr. [Auld] must explain 
to a [factfinder] based on his specialized knowledge or experience.”  Fair Isaac Corp. v. 
Fed. Ins. Co., 

, 873 (D. Minn. 2020).  In other words, Dr. Auld’s 
opinion  that  the  Subcontract  included  a  duty  of  care  requiring  ECI  to  effectively 
communicate  with  Keller  is  an  impermissible  personal  opinion  on  the  Subcontract’s 

meaning.  And it follows that Dr. Auld may not opine that ECI breached such an alleged 
contractual  duty.    However,  Dr.  Auld’s  remaining  testimony  about  ECI’s  lack  of 
communication is not excluded here.  For example, this includes why it is important, based 
on Dr. Auld’s industry experience, for a general contractor to provide a method-statement 
or other information to a ground-freeze subcontractor.                    
    (6) ECI seeks to exclude Dr. Auld’s opinion on the parties’ scope of work under the 

Subcontract.  ECF No. 72 at 26–27.                                        
      The scope-of-work provision in the Subcontract states:             
         Subcontractor agrees to provide all labor, materials, services, 
         and equipment to perform the following scope of work on the     
         Project:  Wisconsin  PE  Design  of  frozen  soil  system  for  
         temporary ground stabilization and ground water control.  The   
         installation  and  oversight  of  the  ground  freeze  system  in 
         accordance with Subcontractor’s proposal dated October 6,       
         2020,  attached  hereto  as  Exhibit  A.    The  Drilling  and  
         installation of ground freeze pipe (including furnishing of pipe) 
         is the responsibility of Contractor.                            

ECF No. 74-1 at 28.  Dr. Auld’s scope of work opinions run into the same problem as his 
duty of care opinions—experts may not testify on matters of law.  S. Pine Helicopters, 320 
F.3d at 841.  The parties’ scope of work is defined by the Subcontract, and the interpretation 
of that Subcontract is a matter of law.  See Winthrop Resources Corp. v. Eaton Hydraulics, 
Inc., 

 (8th Cir. 2004) (“If [a] contract is unambiguous, the interpretation 
is a question of law” and “the court cannot consider anything other than the contract.” 
(citations omitted)).  Keller does not contend the scope of work clause is ambiguous or that 
Dr. Auld’s expertise helps resolve such ambiguity.                        
    Instead,  Keller  contends  that  “[w]hen  experts  are  ‘trained  by  experience  and 
intimately familiar with the types of contracts . . . at issue,’ they may testify if their opinions 
on the contract at issue ‘are limited to [their] understanding of normal industry practices 
and customs with respect to contract provisions like the clause[s] at issue, as well as how 
a reasonable industry participant would view certain contractual provisions or clauses.’”  
ECF No. 85 at 14 (citing In re ResCap, 432 F. Supp.3d at 923).  In re ResCap is not 
analogous.  There, Judge Nelson allowed an expert underwriter to opine (narrowly) on 

certain representations and disclaimers in mortgage loans.  Id. at 923.  To conclude loans 
contained material underwriting defects, the expert in ResCap evaluated the loans to 
determine whether they “(a) were likely to be repaid and were supported by adequate 
collateral when initially evaluated; (b) complied with the documentation requirements for 
the borrower’s credit profile; (c) fulfilled hazard and title insurance requirements; and (d) 

complied with various contractual and legal requirements, such as various disclosure 
requirements under federal statutes and anti-predatory lending requirements under state 
statutes.”  Id. at 920.  In other words, the expert’s opinions “of normal industry practices 
and customs with respect to contract provisions” were a predicate to the expert’s principal 
opinions regarding underwriting defects.  See In re ResCap, 432 F. Supp. 3d at 921–23.  

By contrast, Dr. Auld only opines directly on ECI and Keller’s scope of work, he does not 
offer any opinions on normal industry practices and customs with respect to scope-of-work 
provisions in ground-freeze subcontracts.  Nor does the record demonstrate Dr. Auld has 
experience with ground-freeze contracts, unlike the expert underwriter in ResCap.  And to 
the extent Dr. Auld’s opinion does “not render a legal opinion on the contract language,” 

but instead opines according to principles that govern professional engineers, see ECF No. 
85 at 14, Keller does not explain how such an opinion is helpful when the parties’ scope of 
work is governed by the Subcontract.                                      
                               C                                         
    ECI also moves to exclude the expert testimony, in part, of Erin Fallon.  Fallon is 
Keller’s damages expert retained to refute ECI’s damages expert (HKA).  She has a B.S. 

in Chemical Engineering from the University of Pittsburgh and over twenty years of 
experience in “expert consulting and project advisory services for clients in the engineering 
and construction industries.”  ECF No. 74-1 at 547.  In her work, “[s]he regularly focuses 
on  schedule  delay  and  disruption  analysis,  loss  of  productivity,  and  cost  damages 
quantification  issues,  and  participates  in  various  phases  of  claims  management  and 

litigation.”  Id.                                                         
    Fallon lists sixteen expert opinions in her rebuttal report.  The upshot of Fallon’s 
opinions is that ECI’s expert HKA failed to perform adequate analysis, failed to account 
for important facts, and relied on incorrect assumptions.  ECF No. 74-1 at 516–19.  ECI 
seeks to exclude statements near the end of Fallon’s report and opinions expressed during 

her deposition.  In her report, she opined that “HKA failed to substantiate ECI was actually 
assessed liquidated damages,” id. at 543, and at her deposition she testified “I don’t think 
it’s appropriate to assert a claim unless you incurred the cost. . . . [M]y opinion is that at 
first you need to establish that those liquidated damages were incurred as a result of 
Keller’s failure, and two, that you actually incurred and paid those costs,” id. at 630 (Fallon 

Dep. 202:12–21).  Fallon also opined “HKA and ECI failed to establish or substantiate any 
allegation that the Flood Event . . . was the result of Keller’s defective or malfunctioning 
equipment.”  Id. at 538.                                                  
    (1) Fallon’s opinion on the appropriateness of ECI’s claim for liquidated damages 
will be excluded.  “Matters of law are reserved exclusively for the Court.”  Taqueria El 
Primo, 577 F. Supp. 3d at 987 (D. Minn. 2021) (citing S. Pine Helicopters, 320 F.3d at 

841).  And whether a category of damages is available is a matter of law.  See, e.g., 
Barr/Nelson, Inc. v. Tonto’s, Inc., 

 (Minn. 1983).  Keller counters that 
“[a] damage expert’s job is to opine on what damages are available. . . . Fallon applied the 
methodology . . . and concluded that ECI is not entitled to liquidated damages.”  ECF No. 
85 at 19.  Not so.  Damages experts “must make assumptions about liability and the parties’ 

legal theories in order to calculate damages.”  Mahaska Bottling Co., Inc. v. PepsiCo, Inc., 

,  758  (S.D.  Iowa  2019).    Calculating  damages  based  on  legal 
assumptions is not the same as “directly opining on the validity of the party’s underlying 
legal theories.”  Id. at 757.  Fallon’s opinion that “it’s not appropriate to assess liquidated 
damages,” ECF No. 74-1 at 630 (Fallon Dep. 202:4–13), is based on her “opinion . . . that 

at first you need to establish that those liquidated damages were incurred as a result of 
Keller’s failure, and two, that you actually incurred and paid those costs,” id. (Fallon Dep. 
202:12–21).  Opining on the appropriateness of liquidated damages in this context is a 
legal, not factual, opinion.  “[Q]uestions of law are the subject of the court’s instructions 
and not the subject of expert testimony.”  United States v. Klaphake, 

, 438–39 

(8th Cir. 1995) (quoting United States v. Vreeken, 

 (10th Cir. 1986)).   
    (2) ECI also seeks to exclude Fallon’s opinions about the Subcontract’s meaning.  
ECF No. 72 at 31.  More specifically, it seeks to exclude Fallon’s opinion that HKA and 
ECI  failed  to  establish  that  the  flood  event  was  the  result  of  Keller’s  defective  or 
malfunctioning equipment.  See 74-1 at 538.  Keller, as the proponent of the expert 
testimony, “must prove its admissibility by a preponderance of the evidence.”  Lauzon, 

; Fed. R. Evid. 702.  However, Keller did not respond, waiving its objections to 

ECI’s motion.  See Hernandez-Diaz v. Equifax Info. Servs., No. 22-cv-2302 (JRT/JFD), 

, at *2 (D. Minn. Feb. 15, 2023).  Regardless, Fallon’s opinions on this 
subject would not be helpful because courts are well-equipped to interpret contracts and 
evaluate the sufficiency of the evidence.                                 
                               D                                         

    Finally, ECI moves to exclude the expert testimony, in part, of Paul Wilkinson.  
Wilkinson has a Higher National Degree in Engineering Surveying from Nottingham Trent 
University.  ECF No. 74-1 at 641.  He is a microtunneling expert with over 30 years of 
experience “with the procurement, installation and close-out on over 200 microtunneling 
and pipe jacking projects.”  

  Wilkinson has overseen more than 100 kilometers of 

trenchless tunnel construction in over 25 countries.  

  He is currently a senior consultant 
at Kilduff Underground Engineering, Inc., where he provides engineering and construction 
consultation for microtunneling and pipe jacking projects.  

           
    Wilkinson offers a rebuttal report to Dr. McGinn’s expert report.  In Wilkinson’s 
report, he opines: (1) given the conditions of the Project, the microtunneling drive should 

only have been “undertaken by a recognized and experienced Microtunnelling Contractor,” 
ECF No. 74-1 at 635, and because ECI did not have sufficient microtunneling experience 
they “were always likely to have problems” with such a complex project, id. at 639; (2) 
ECI’s microtunneling drive was not successful because the MTBM was out of alignment 
with the reception seal, id. at 637; (3) ECI “did not effectively engage with [Keller] to 
address the proposed means and methods to rescue the MTBM,” id. at 639; and (4) it was 
not possible for ECI to jack the MTBM into the retrieval shaft without removing the grout 

bond, id. at 640.                                                         
    (1) ECI seeks to exclude Wilkinson’s opinion about ECI’s communications with 
Keller because “ECI’s obligations in that regard are governed by a contract that Wilkinson 
didn’t read.”  ECF No. 72 at 35.  But ECI identifies no authority that requires an expert to 
review the contract to testify about industry standards or the importance of communication 

in a negligence case.  And its reliance on Teska v. Potlach Corp. is not persuasive.  

 (D. Minn. 2002).  In Teska, the court pointed out an expert’s failure to review 
the operative contracts and subcontracts as part of a laundry list of problems with the 
expert’s qualifications.  

 (“[The expert] did not review any other documents, 
manuals, handbooks, or regulations; he did not view the site of the accident; he did not 

review the operative contracts, and subcontracts; and he did not interview any of the 
witnesses himself.  [The expert] conceded that he had not consulted any substantive texts, 
in forming his opinions in this case, and that he has relied solely upon his own past training 
and experience. . . .  More importantly, the Record is bereft of any showing that [the expert] 
was personally aware of the construction practices of building contractors, particularly as 

they relate to the operation of a crane in Minnesota generally, or in northern Minnesota in 
particular.”).  By contrast, ECI does not challenge Wilkinson’s microtunneling industry 
experience.  And the “ordinary business practices of those engaged in [an industry]” is an 
admissible expert opinion.  The Shaw Grp., 

.              
    ECI further contends, “Wilkinson also did not review any email communications 
between ECI and Keller and did not consider any of the deposition transcripts of ECI 
personnel.”  ECF No. 72 at 35.  True.  But Wilkinson reviewed Dr. McGinn’s report and 

the communications embedded in Dr. McGinn’s report.  ECF No. 74-1 at 637–39.  And 
“[a]s a general rule, the factual basis of an expert opinion goes to the credibility of the 
testimony, not the admissibility, and it is up to the opposing party to examine the factual 
basis for the opinion in cross-examination.”  Larson v. Kempker, 

 (8th 
Cir. 2005) (quotation omitted).  Wilkinson’s opinion that ECI should have communicated 

its rescue methods with Keller is not “so fundamentally unsupported that it can offer no 
assistance to the jury.”  

 (quotation omitted).  ECI’s motion to exclude Wilkinson’s 
communication opinions will be denied.                                    
    (2) ECI also seeks to exclude Wilkinson’s opinion that “if the [recovery] plans had 
been discussed in detail with Keller throughout, then some of the issues that were had at 

the end of the project with the flooding may never have materialized.”  ECF No. 74-1 at 
823 (Wilkinson Dep. 179:20–24).  “Expert testimony that is speculative is not competent 
proof.”  Concord Boat Corp. v. Brunswick Corp., 

 (8th Cir. 2000).  
For example, in Werth v. Hill-Rom, Inc., the court excluded expert testimony as speculative 
because “the Report simply describes ways in which a chip could have broken free of the 

quartz tube and made its way to the bassinet; it is replete with possibilities and conjecture.”  

 (D. Minn. 2012).  To ECI’s point, Wilkinson is opining about 
what Keller might have done if provided with ECI’s intended removal methods.  However, 
Wilkinson explains the basis for his conclusion—ECI was “planning to leave the tunnel 
structurally unsupported,” ECF No. 74-1 at 824 (Wilkinson Dep. 180:1–2), and “[h]ad ECI 
been able to jack the MTBM forward[,] the unsupported ground would more than likely 
have collapsed with catastrophic consequences,” id. at 640.  Moreover, Wilkinson bases 

his opinion on Keller contacting ECI with concerns on January 20, 2021—after learning 
about ECI’s plan to remove the MTBM without structural support but before the flood 
event.  Id. at 639.  In light of Daubert’s relaxed application for bench trials, see David E. 
Watson, 

, Wilkinson’s opinion is sufficiently supported so as to not be 
wholly speculative.                                                       

    (3) Wilkinson’s opinion that ECI’s microtunneling drive was unsuccessful will be 
excluded.  Rule 702 requires that evidence or testimony “help the trier of fact to understand 
the evidence or to determine a fact in issue.”  “This condition goes primarily to relevance.”  
Daubert, 

.  “Expert testimony which does not relate to any issue in the case 
is not relevant and, ergo, non-helpful.”  

 (quotation omitted).  The condition of the 

MTBM at the retrieval shaft is relevant—at minimum as background information to the 
ground-freeze and MTBM retrieval efforts.  But characterizing ECI’s microtunneling drive 
as a success or failure makes no difference to Keller’s breach-of-contract claim, ECI’s 
negligence claim, or ECI’s breach-of-contract claim.  Keller counters that ECI “put the 
matter in issue when it alleged the success of its work it [sic] in its Counterclaim,” and by 

including the statement in Dr. McGinn’s report.  ECF No. 85 at 22–24.  That’s beside the 
point.  Dr. McGinn does not offer an expert opinion on the success or failure of the 
microtunneling drive—he includes only five specific opinions in his report.  ECF No. 74-1 
at 837–38.  And a party’s characterization of facts in a complaint does not render expert 
testimony refuting that characterization relevant at trial.  Keller further argues, “[w]hether 
ECI was qualified to self-perform the work on this project and whether its microtunnel 
drive  under  the  river  was  ‘successful’  are  all  part  of  Keller’s  defense  to  ECI’s 

counterclaims” and that “[t]hose questions are central to this case and to ECI’s claims 
against Keller.”  ECF No. 85 at 24.  But Keller does not elaborate how and why those 
questions  matter.    Wilkinson’s  expert  opinion  that  ECI’s  microtunneling  drive  was 
unsuccessful will not help the trier of fact in this case.                
    (4) The same follows for Wilkinson’s opinion that “ECI did not have the experience 

or qualifications to construct the tunnel and were always likely to have problems that could 
develop into major issues.”  ECF No. 74-1 at 639.  The execution of the Subcontract and 
flood event both occurred after the MTBM became stuck at the retrieval shaft.  The ground-
freeze, not the micro-tunneling, is the central issue in this case.  And although the actual 
conditions of the of the tunnel are relevant to the ground-freeze and MTBM retrieval, the 

likelihood of problems arising in ECI’s microtunneling drive does not matter.  Simply put, 
for Wilkinson to opine ECI was “always likely to have problems that could develop into 
major issues” is not helpful.  Keller, as the proponent of the expert testimony, “must prove 
its admissibility by a preponderance of the evidence.”  Lauzon, 

; Fed. R. 
Evid. 702.  It did not.                                                   

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

    1.   Defendant and Counter-Claimant Engineering & Construction Innovations, 
Inc.’s Motion for Summary Judgment [ECF No. 59] is GRANTED.               
    2.   Plaintiff  and  Counter-Defendant  Keller  Industrial,  Inc.’s  Motion  for 
Summary Judgment [ECF No. 64] is DENIED.                                  
    3.   Plaintiff and Counter-Defendant Keller Industrial, Inc.’s Motion to Exclude 

Expert Testimony of Dr. McGinn [ECF No. 77] is DENIED.                    
    4.   Defendant and Counter-Claimant Engineering & Construction Innovations, 
Inc.’s Motion to Exclude Expert Testimony of Dr. Auld [ECF No. 70] is GRANTED IN 
PART and DENIED IN PART as explained in Part III.B., above.               
    5.   Defendant and Counter-Claimant Engineering & Construction Innovations, 

Inc.’s Motion to Exclude Expert Testimony of Erin Fallon [ECF No. 70] is GRANTED. 
    6.   Defendant and Counter-Claimant Engineering & Construction Innovations, 
Inc.’s  Motion  to  Exclude  Expert  Testimony  of  Paul  Wilkinson  [ECF  No.  70]  is 
GRANTED IN PART and DENIED IN PART as explained in Part III.D., above.    

Dated: January 18, 2024            s/ Eric C. Tostrud                     
                                  Eric C. Tostrud                        
                                  United States District Court           

                 UNITED STATES DISTRICT COURT                            
                    DISTRICT OF MINNESOTA                                


Keller Industrial, Inc.,               File No. 21-cv-2218 (ECT/JFD)      

         Plaintiff,                                                      

v.                                       OPINION AND ORDER                

Engineering & Construction Innovations,                                   
Inc., Fidelity and Deposit Company of                                     
Maryland, and Zurich American Insurance                                   
Company,                                                                  

         Defendants.                                                     
________________________________________________________________________  
Kristine A. Kubes and Laurie W. Meyer, Kubes Law Office PLLC, Minneapolis, MN, for 
Plaintiff Keller Industrial, Inc.                                         
Paul Shapiro, Ernest F. Peake, and Patrick J. Lindmark, Taft Stettinius & Hollister LLP, 
Minneapolis, MN, for Defendants Engineer & Construction Innovations, Inc., Fidelity and 
Deposit Company of Maryland, and Zurich American Insurance Company.       
________________________________________________________________________  
    This diversity case arises out of a January 2021 flood event.  Defendant Engineering 
& Construction Innovations, Inc. (“ECI”) was the general contractor on a project to build 
a water main under the Mississippi River.  When ECI’s tunneling machine became stuck 
at the exit shaft, it subcontracted Plaintiff Keller Industrial, Inc. to freeze the ground around 
the machine to prevent groundwater from entering the area and to enable ECI to retrieve 
the machine.  Keller claimed to do its part, but a few weeks after ECI started working to 
retrieve the tunneling machine, groundwater flooded the tunnel system.  ECI refused to pay 
Keller for its work.  Keller brought this six-count lawsuit, seeking payment for its ground-
freeze work.  ECI counterclaimed for breach of contract and negligence.   
    Several motions require a decision: cross-motions for partial summary judgment; 
ECI’s motion to exclude expert testimony, in part, of Keller’s three expert witnesses; and 
Keller’s motion to exclude the expert testimony of ECI’s engineering expert.  The upshot 

is this:                                                                  
      ECI’s motion for partial summary judgment will be granted because Keller 
      stipulated to the dismissal of Counts III and IV of the Amended Complaint. 

      Keller’s motion for partial summary judgment will be denied.      
      Keller’s motion to exclude the expert testimony of Dr. McGinn will be denied. 
      ECI’s motion to exclude, in part, the expert testimony of Dr. Auld will be mostly 
      granted.                                                           

      ECI’s motion to exclude, in part, the expert testimony of Erin Fallon will be 
      granted.                                                           

      ECI’s motion to exclude, in part, the expert testimony of Paul Wilkinson will be 
      granted in part and denied in part.                                
                               I1                                        
    The parties.  ECI is “a full service heavy civil construction firm that specializes in 
infrastructure, marine, geotechnical and specialty construction projects.”  About ECI, 
Engineering  &  Construction  Innovations,  Inc.,  http://eciconstructors.com/about  (last 
visited Jan. 17, 2023).  ECI is incorporated in Minnesota.  Am. Compl. [ECF No. 23] ¶ 2; 
ECF No. 27 ¶ 2.  Keller “provides solutions to a wide range of geotechnical challenges 
across  the   entire  construction  spectrum.”    Solutions,  Keller      
https://www.keller-na.com/expertise/solutions (last visited Jan. 17, 2024).  Keller is a New 

1    Unless noted otherwise, the facts described in Part I are undisputed.  See Fed. R. 
Civ. P. 56(a).                                                            
Jersey corporation with its principal place of business in New Jersey.  Am. Compl. ¶ 1.  
Fidelity  and  Deposit  Company  of  Maryland’s  (“Fidelity”)  state  of  incorporation  and 
principal place of business are not clear from the record.2  Am. Compl. ¶ 3; ECF No. 26 ¶ 

3.  Defendant Zurich American Insurance Company (“Zurich”) is a New York corporation 
with a principal place of business in Illinois.  Am. Compl. ¶ 4; ECF No. 26 ¶ 4.  Fidelity 
and Zurich issued a payment bond identifying ECI as the principal.  Am. Compl. ¶ 11; ECF 
No. 26 ¶ 11.  Fidelity and Zurich are sureties of that payment bond.  ECF No. 23-1 at 1–2. 
    The City of Minneapolis hires ECI to complete a microtunneling project.  In 2019, 

the City hired ECI as the general contractor on the 10th Avenue Water Main River Crossing 
Project (the “Project”).  ECF No. 62 ¶ 2.  The Project involved the construction of an 
underground water main beneath the Mississippi River near downtown Minneapolis.  Id.  
The City specified that the water main “should be constructed using microtunneling.”  Id. 


2    “[F]ederal courts are obligated to raise the issue of subject-matter jurisdiction sua 
sponte.”  Crawford v. F. Hoffman-La Roche Ltd., 

, 764 n.2 (8th Cir. 2001).  
In assessing diversity jurisdiction, other cases observe Fidelity is incorporated in Maryland 
with its principal place of business in Maryland or Illinois.  See Bill Goodwin Const., LLC 
v. Wondra Const., Inc., No. 3:13cv157, 

, at *2 n.1 (M.D. Pa. Aug. 5, 
2013) (concluding Fidelity was incorporated in Maryland with its principal place of 
business in Illinois); Fidelity & Deposit Co. of Md. v. Rod Cooke Constr., Inc., No. 1:19-
CV-241-JB-M, 

, at *1 (S.D. Ala. July 28, 2020) (“[Fidelity] is a 
Maryland company with its principal place of business in Illinois.”); Fidelity & Deposit 
Co. of Md. v. Willson, No. 2:06-CV-92, 

, at *1 (N.D. Ind. Oct. 26, 2006) 
(“[Fidelity] is a citizen of Maryland, both being organized under the laws of Maryland and 
having its principal place of business there.”).  But see Fidelity & Deposit Co. of Md. v. 
Omni Constr. Co., Inc., No. 19-CV-49, 

, at *1 n.1 (N.D. Ohio Apr. 24, 
2020) (“[Fidelity] is a corporation organized and existing under the laws of the State of 
Illinois with its principal place of business in Illinois.”).  Because Keller is a New Jersey 
corporation with its principal place of business in New Jersey, diversity jurisdiction is 
satisfied.                                                                
      A launch shaft and retrieval shaft were constructed, the launch shaft located on the 
east bank of the Mississippi River and the retrieval shaft located on the west bank.  Jd. 75; 
ECF No.  90-1  at 307  (Marshall Dep.  55:12—14).  A “microtunnel boring machine (the 
‘MTBM’), shaped like a horizontal cylinder, was lowered into the launch shaft.”  ECF No. 
6295.  “The ‘head’ of the MTBM, a  five-foot-diameter cutting tool, was oriented to face 
the direction of tunneling.”  /d.  Hydraulic jacks pushed the MTBM through the ground. 

  The MTBM broke down the subsurface and the subsurface material was pumped out 
of the tunnel system.  /d.  As the MTBM advanced underground from the launch shaft to 
the  retrieval  shaft,  “the  hydraulic jacks  were  periodically retracted,  and  a twenty-foot 
section of encased piping was installed behind the MTBM.” Jd.  9 6.  In theory, the process 
would repeat until the MTBM reached the retrieval shaft,  leaving behind a completed, 
encased pipeline.  /d.  The following schematic illustrates the Project: 
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    7.                                    |             ‘       de     □□   | 
                         eka           Nene        ID 
                        =     ee           a?     sm      ah
    :                        a YY                   ee 
                           □             i Eid        :        ee    
                          al                 Se 
                         _           eae                fe. 
                     a                            > 

     ©

Id. 47.

    ECI initially hires a subcontractor to microtunnel, before taking over the process.  
ECI hired Bradshaw Construction Corporation (“Bradshaw”), “a microtunneling specialty 
contractor, to perform the Project’s microtunneling” work.  Id. ¶ 8.  Bradshaw started 

microtunneling in November 2019.  Id.  For reasons unclear from the record, Bradshaw 
encountered problems and only advanced its MTBM a short distance in three months.  Id.  
In February 2020, “ECI terminated Bradshaw at the direction of the City.”  Id.  ECI later 
submitted a proposal to self-perform the microtunneling work and started microtunneling 
in early August 2020.  Id. ¶¶ 9–10.                                       

    The MTBM gets stuck.  Within two weeks, the MTBM’s head reached the retrieval 
shaft, “[b]ut ECI was unable to advance its MTBM into the retrieval shaft so that it could 
be recovered and extracted.”  Id. ¶ 10.  A reception seal had been installed in the retrieval 
shaft to receive the MTBM, ECF No. 90-1 at 105, but the MTBM arrived off-center and 
was stuck at the reception seal, id. at 212 (Umlauf Dep. 120:13–15), 302 (Marshall Dep. 

33:3–15).  Because the retrieval shaft was sealed from the subsurface, see id. at 103–104, 
forcing the MTBM into the retrieval shaft risked groundwater intrusions into the tunnel 
system.                                                                   
    The dirt wing problem.  The MTBM had “an antiroll fin or steering fin . . . that 
helped stabilize the machine.”  ECF No. 90-1 at 137 (Johnson Dep. 95:14–16).  The parties 

refer to this steering fin as the dirt wing.  See, e.g., id. at 137 (Johnson Dep. 95:25–96:3).  
The dirt wing was designed to be retractable, but when the MTBM reached the retrieval 
shaft it would not retract.  Id. at 137 (Johnson Dep. 95:8–20).  This dirt wing contributed 
to the MTBM being stuck at the reception seal system, unable to advance further into the 
retrieval shaft.  Id.; see also id. at 318 (Marshall Dep. 100:7–14) (“if we were to try to push 
through our seal, it would tear the seal was our fear.  So the goal was to try to extract the 
dirt wing to further advance the MTBM.”).  In August 2020, ECI attempted to remove the 

dirt wing, resulting in groundwater inflows into the MTBM.  Id. at 202 (Umlauf Dep. 
78:15–19), 258 (Hogen Dep. 88:7–12).  In August and early September 2020, while 
attempting to remove the dirt wing and stop groundwater inflows, ECI placed grout around 
the MTBM.  Id. at 338 (Marshall Dep. 179:4–21), 259 (Hogen Dep. 89:3–14). 
    ECI subcontracts Keller to freeze the ground.  To resolve these problems, ECI 

contracted Keller to design and install a “ground-freeze system in the area around the 
MTBM and the retrieval shaft.”  ECF No. 62 ¶ 11.  “The idea was that freezing the 
subsurface would enable ECI personnel to perform additional work . . . to advance the 
MTBM into the retrieval shaft” without groundwater or soil flowing into the tunnel system.  
Id.  Keller created a preliminary ground-freeze design, ECF No. 90-1 at 30 (Sopko Dep. 

47:16–21), drafted a ground-freezing proposal, and on October 6, 2021, sent a revised 
ground-freezing proposal to ECI.  ECF No. 62-1 at 20–25.  On October 12, 2021, Keller 
and ECI executed a subcontractor agreement (the “Subcontract”) for Keller to design, 
furnish, and install a “frozen soil system for temporary ground stabilization and ground 
water control.”  Id. at 13, 20.  Keller’s responsibilities included “[t]he installation and 

oversight of the ground freeze system in accordance with [Keller’s] proposal dated October 
6, 2020.”  Id. at 13.  ECI was responsible for furnishing, drilling, and installing the ground-
freeze pipe described more fully in the next paragraph.  Id.              
    Keller’s ground-freeze design.  Keller’s ground-freeze design included several 
components.  Keller proposed installing 30 freeze pipes drilled to 120 feet deep.  ECF No. 
90-1 at 7.  Freeze pipes are steel pipes drilled into the ground.  ECF No. 90-1 at 194 

(Umlauf Dep. 45:3–4).  The freeze pipes are then connected to a freeze plant, which cools 
and circulates liquid brine through the freeze pipes.  ECF No. 90-1 at 52 (Sopko Dep. 
139:6–11), 8.  Over time, as the chilled liquid brine circulates through the freeze pipes, 
heat is extracted from the surrounding earth, lowering the ground temperature around the 
freeze pipes.  Id. at 6.  The goal of lowering the ground temperature is to form a frozen 

mass.  Id. at 48 (Sopko Dep. 122:19–23).  Here, the frozen mass was to be formed around 
the MTBM and retrieval shaft.  Id.  Various temperature sensors would monitor the freeze.  
Temperature  monitoring  pipes  are  pipes  drilled  into  the  ground,  filled  with  calcium 
chloride brine.  Id. at 50 (Sopko Dep. 132:1–12).  A beadedstream is installed in the 
temperature monitoring pipes—a wire with temperature sensors reporting data at different 

depths along the pipe.  Id. at 50 (Sopko Dep. 132:1–133–25), 51 (Sopko Dep. 134:17–
135:1).  The beadedstreams are connected to an instrumentation panel, or control panel, 
located at the site of the Project.  Id. at 34 (Sopko Dep. 67:8–14).  A temperature sensor 
measures the brine temperature as it returns from the freeze pipes to the freeze plant.  Id. 
at 52 (Sopko Dep. 139:6–11).  Finally, Keller proposed monitoring the ground temperature 

from inside the MTBM “using a portable magnetic datalogger.”  Id. at 4.   
    Installation of the ground-freeze and temperature monitoring pipes.  On the west 
bank of the Mississippi River, Keller set up the ground-freeze system around the retrieval 
shaft and MTBM in November 2020.  ECF No. 62 ¶ 13.  Keller selected the physical 
locations to install the freeze pipes, incorporating existing freeze pipes near the shaft into 
the design.  ECF No. 90-1 at 47 (Sopko Dep. 120:7–121:10).3  “ECI drilled temporary case 
holes at locations and depth as determined by Keller’s design, and then installed the steel 

freeze pipe in the . . . temporary case drilled hole[s] . . . and retracted the temporary casing.”  
Id.  at  194  (Umlauf  Dep.  45:1–5).    Keller  determined  the  number  and  location  of 
temperature monitoring pipes.  Id. at 51 (Sopko Dep. 135:2–10).  The portable datalogger 
was initially installed in the MTBM, see id. at 56 (Sopko Dep. 154:2–5), but at some point 
after January 3, 2021, it was removed, ECF No. 88-1 at 246 (McGinn Dep. 245:5–11), 260 

(259:19–25).                                                              
    Initiating the freeze.  In early December 2020, Keller turned the ground-freeze 
system on.  ECF No. 62 ¶ 13.  Over the course of December, Keller compared the 
temperatures measured by its temperature sensors with temperatures predicted by “an as-
built model,” meaning a model based on measured datapoints such as the locations of the 

freeze pipes, temperature pipes, and the temperature of the brine circulating through the 
freeze  pipes.    ECF  No.  90-1  at  58  (Sopko  Dep.  165:4–24).    At  some point, Keller 
determined the frozen mass had been formed based on temperature readings and visual 
observations.  Id. at 55–56 (Sopko Dep. 153:19–154:16).  On January 3, 2021, Keller sent 
an “Authorization to Excavate” to ECI, informing ECI that excavation and recovery of the 

MTBM could begin with two qualifications.  ECF No. 62-1 at 27.  First, cutting and 


3    A different freezing contractor had performed a freeze around the retrieval shaft 
when ECI installed the reception seal.  ECF No. 90-1 at 47 (Sopko Dep. 120:19–24).  Some 
of the freeze pipes installed by the previous freezing contractor had been left in place. 
welding could not exceed one shift per day (or less if activities resulted in excessive 
melting).  Id.  Second, any groundwater or soil inflows were to be reported to the onsite 
Keller representative immediately.  Id.                                   

    ECI starts MTBM recovery operations.  After receiving Keller’s authorization, ECI 
started working in the shaft and tunnel to recover the MTBM.  One of the first steps taken 
by ECI was debris removal.  ECF No. 90-1 at 109.  On January 7, 2021, ECI personnel 
observed an inward deflection, or bulge, in the steel skin of the MTBM.  Id. at 109, 283 
(Hogen Dep. 186:22–187:7).  ECI measured the deflection at 48 inches by 20 inches and 4 

inches deep.  Id. at 283 (Hogen Dep. 188:7–15), 109.  There was concern this inward 
deflection acted “as a pinch point,” making it more difficult for the MTBM to be pushed 
into the retrieval shaft.  Id. at 286 (Hogen Dep. 197:22–23).             
    ECI’s attempt to jack the MTBM into the retrieval shaft is unsuccessful.  In early 
January, the pipe running under the Mississippi River was connected to the MTBM by a 

trailing can.  ECF No. 90-1 at 331 (Marshall Dep. 151:1–14).  ECI installed three hydraulic 
jacks near the joint where the trailing can of the MTBM connected to the pipe.  Id. 
(Marshall Dep. 150:18–24).  The hydraulic jacks were placed to push the MTBM forward 
into the retrieval shaft.  ECF No. 90-1 at 107.  In early January, ECI made two cuts to 
facilitate  the  push.    First,  on  January  11,  2021,  ECI  made  a  circumferential  cut  (a 

360-degree cut) in the pipe directly behind the MTBM’s trailing can.4  ECF No. 90-1 at 
325 (Marshall Dep. 127:5–11).  The cut was made to disconnect the MTBM from the pipe 

4    The circumferential cut was made, verified, then expanded.  See ECF No. 90-1 at 
106–07.  It is not clear if all this work occurred on January 11, 2021.   
running under the Mississippi River so the hydraulic jacks could push the MTBM into the 
retrieval shaft.  Id. at 325 (Marshall Dep. 128:16–21).  ECI performed the cut with a 
“grinder/cutting wheel” and a carbon air arc.  Id. at 107.  Second, ECI made a relief cut in 

the top of the MTBM to relieve the inward deflection.  Id. at 286 (Hogen Dep. 197:12–23).  
ECI tried to jack the MTBM into the retrieval shaft without success.  Id. at 300 (Marshall 
Dep. 25:19–26:5).                                                         
    ECI continues efforts to push the MTBM into the retrieval shaft.  ECI attempted to 
remove the reception seal to clear the MTBM’s path into the retrieval shaft.  ECF No. 90-1 

at 303 (Marshall Dep. 40:15–41:1).  Removing the seal proved difficult, id. at 272 (Hogen 
Dep. 144:13–18), and ECI performed grinding, cutting, and torching work to remove parts 
of the seal.  See id. at 301 (Marshall Dep. 31:20–32:12); 303–04 (Marshall Dep. 40:22–
41:1, 42:11–43:2).  There was also concern that the MTBM was frozen to the subsurface.  
Id. at 77 (Sopko Dep. 241:4–13).  To facilitate removal of the MTBM, freeze pipes near 

the reception seal were turned off.  Id. at 220 (Umlauf Dep. 151:23–152:21).  ECI also ran 
heaters near the MTBM during off-shift hours (roughly 14 hours a day).  Id. at 108.  One 
heater was located in the retrieval shaft, pointed toward the MTBM, while a second heater 
was located near the joint between the trailing can and pipe, pointed toward the MTBM 
from the other direction.  Id. at 108.  ECI ran the heaters to break, or weaken, the bond 

between the MTBM and the frozen subsurface.  Id. at 156 (Johnson Dep. 172:12–24).  ECI 
used poly sheeting to insulate the heaters, keeping the heat contained around the MTBM 
instead of diffusing down the tunnel or up the retrieval shaft.  Id. at 108; 157 (Johnson Dep. 
176:5–20).5  Despite these efforts, ECI’s additional jacking attempts were unsuccessful.  
See, e.g., id. at 303 (Marshall Dep. 40:22–25).  To provide additional jacking force, ECI 
planned to install a fourth hydraulic jack in the tunnel.  Id. at 332 (Marshall Dep. 153:5–

11).                                                                      
    The tunnel and shafts flood.  When ECI personnel arrived at the site of the Project 
on January 21, 2021, they found the launch shaft, retrieval shaft, and tunnel flooded.  ECF 
No. 90-1 at 308 (Marshall Dep. 57:8–58:6).  Pumping tests were performed on both shafts 
to confirm groundwater was continuously entering the tunnel system.  Id. at 109.  ECI 

engaged divers to investigate the flooding, who determined groundwater was flowing into 
the tunnel network from inside the MTBM.  Id. at 109, 309 (Marshall Dep. 63:9–24).6  
Shortly after the flood event, ECI started withholding payments from Keller.  ECF No. 62 
¶ 17.  ECI never advanced the MTBM into the retrieval shaft.  Id. ¶16.  Instead, “ECI gutted 
the interior of the MTBM and left its outer casing in place as the last ‘section’ of tunnel 

used to house the water main.”  Id.                                       
    The lawsuit.  Keller filed the operative six-count Amended Complaint on December 
1, 2021.  Am. Compl.  Count I is a claim on the surety bond against Fidelity and Zurich.  
Id. ¶¶ 35–44.  Count II is a breach-of-contract claim against ECI.  Id. ¶¶ 45–53.  Count III 
is a violation of the Minnesota Prompt Payment Statute, 

, against ECI.  


5    The parties dispute whether the insulation successfully contained heat within the 
MTBM.                                                                     

6    In part, water and sediment flowed through the circumferential cut.  ECF No. 90-1 
at 83 (Sopko Dep. 263:8–20).                                              

 ¶¶ 54–62.  Count IV is a claim under Minnesota’s Mechanic’s Lien Statute, 

, against ECI.  

 ¶¶ 63–70.  Count V is a claim of account stated against ECI.  

 
¶¶ 71–77.  Count VI is a claim for contractual costs, expenses, and attorneys’ fees, against 

ECI.  

 ¶¶ 78–79.  ECI filed its Answer and Counterclaims on December 13, 2021.  ECF 
No. 27.  ECI brings two counterclaims.  

  Count I is for breach of contract, 

 ¶¶ 37–42, 
and Count II is negligence, 

 ¶¶ 43–50.  The parties’ motions follow the end of discovery. 
                               II                                        
    Summary judgment is warranted “if the movant shows that there is no genuine 

dispute as to any material fact and the movant is entitled to judgment as a matter of law.”  
Fed. R. Civ. P. 56(a).  A fact is “material” only if its resolution might affect the outcome 
of the suit under the governing substantive law.  Anderson v. Liberty Lobby, Inc., 

 (1986).  A dispute over a fact is “genuine” only if “the evidence is such that a 
reasonable jury could return a verdict for the nonmoving party.”  

  “The evidence of the 

non-movant is to be believed, and all justifiable inferences are to be drawn in [its] favor.”  

 (citation omitted).  A “smoking gun” is not required for the non-movant to defeat 
a summary judgment motion.  Teleconnect Co. v. Ensrud, 

 (8th Cir. 1995).  
But the non-movant must show “more than mere speculation, conjecture, or fantasy.”  Clay 
v. Credit Bureau Enters., Inc., 

 (8th Cir. 2014) (citation and quotations 

omitted); Zayed v. Associated Bank, N.A., 

 (8th Cir. 2019). 
                               A                                         
    Keller seeks summary judgment as a matter of law that ECI is not entitled to any 
delay-related damages.  ECF No. 66 at 5.  The Subcontract only allows ECI to recover 
delay-related damages from Keller for damages arising from “defective or malfunctioning 
equipment provided by Keller and directly employed in the ground freezing operation.”  
ECF No. 89 at 7 (quoting ECF No. 62-1 at 15).  Keller argues there is no evidence in the 

record that its equipment malfunctioned or was defective.  ECF No. 66 at 11.  ECI does 
not dispute Keller’s interpretation of the Subcontract, ECF No. 89 at 3, but ECI opposes 
summary judgment on two grounds.                                          
    First, ECI argues, “at summary judgment, the moving party must present competent, 
admissible evidence—and because Keller failed to do that here, summary judgment is 

improper.”  ECF No. 89 at 6.  ECI contends that Keller has failed to provide competent, 
admissible evidence because “Keller’s motion rests entirely on an attorney affidavit (where 
the  affiant  has  no  actual,  firsthand  knowledge)  riddled  with  hearsay  and  foundation 
problems.”  

  This critique misses the mark—a movant’s initial burden at summary 
judgment depends on which party bears the burden of proof at trial.  After discovery, a 

movant will be entitled to summary judgment “against a party who fails to make a showing 
sufficient to establish the existence of an element essential to that party’s case, and on 
which that party will bear the burden of proof at trial.”  Celotex Corp. v. Catrett, 

 (1986).  As the Supreme Court explained in Celotex, the movant’s burden “may 
be discharged by ‘showing’–that is, pointing out to the district court—that there is an 

absence of evidence to support the nonmoving party’s case.”  

.  “[T]his initial 
burden on the movant is ‘far from stringent’ and ‘regularly discharged with ease.’”  Bedford 
v. Doe, 

 (8th Cir. 2018) (quoting St. Jude Med., Inc. v. Lifecare Int’l, 
Inc., 

, 596 (8th Cir. 2001)).  “In other words, if the nonmoving party must 
prove X to prevail, the moving party at summary judgment can either produce evidence 
that X is not so or point out that the nonmoving party lacks the evidence to prove X.”  Id. 
at 996–97.                                                                

    ECI has the burden of proof at trial because Keller seeks partial summary judgment 
against the delay-related damages component of ECI’s breach-of-contract counterclaim.  
Because ECI has the burden of proof at trial, Keller is not required to affirmatively produce 
evidence that Keller’s ground-freeze equipment did not malfunction.  Rather, it may move 
for summary judgment by pointing out ECI lacks the evidence to prove that Keller’s 

equipment malfunctioned or was defective.  ECI, as the nonmoving party, must then 
demonstrate the existence of specific facts in the record that create a genuine issue for trial.  
Anderson, 477 U.S at 256.                                                 
    Second, ECI claims there is a genuine issue of material fact whether Keller’s 
temperature-monitoring  equipment  malfunctioned.    This  issue  presents  a  close  call.  

Although  ECI  contends  “the  record  is  replete  with  evidence  showing  that  Keller’s 
equipment was defective or malfunctioning,” the only “non-exhaustive” example relates to 
Keller’s  temperature-monitoring  equipment.    ECF  No.  89  at  14–20.    Without  direct 
evidence of temperature-monitoring equipment malfunctions, ECI relies on circumstantial 
evidence.                                                                 

    (A) ECI starts by claiming “Keller’s design proposal predicted that it would take 
between six and eight weeks for the freeze to form, at which time ECI could begin 
excavating and recovering the MTBM.”  ECF No. 89 at 15.  It further cites to a deposition 
of Joseph Sopko, Keller’s director of ground freezing, as follows:        
    Q: So in other words, this means, once you turn the freeze system on, Keller’s 
    estimating that it will take six to eight weeks for the freeze to reach the point where 
    ECI can begin undertaking to complete its microtunneling activities, right? 

    A: Right.                                                            

Id.  However, by late December, after the ground-freeze system was running for roughly 
four weeks, Keller concluded the freeze was sufficient for ECI to start recovery efforts.  
ECF No. 90-1 at 85 (Sopko Dep. 272:16–273:4).  According to ECI, this is circumstantial 
evidence the beadedstreams in the temperature monitoring pipes were reporting colder than 
actual temperatures, and thus malfunctioning by transmitting inaccurate data.  ECF No. 89 
at 16.                                                                    
    There is some contrary evidence in the record.  Although the proposal states, “the 
following sequence will occur . . . [i]nitiate freezing for six to eight weeks,” ECF No. 90-1 
at 4, the proposal later notes that “the frozen mass will be formed in approximately 28 
days” id. at 6.  In his deposition, Sopko addressed this discrepancy:     
    Q: Why did you select six to eight weeks as the appropriate time frame for the 
    freeze?                                                              

    A: Well, if you would look at the model that we were just showing, it was really 
    frozen in 28 days, or six weeks would be 42 days.  But because this always ends up 
    in a, you know, contractual issue, that that’s six – the 28 freeze days are days of, 
    you know, plant operating completely.  We always add extra time, particularly in a 
    job where there’s going to be generator power.  You – you know, you’re going to 
    have – you need 28 really nice, cold freezing days, but we like to put that in there 
    because there are things that – that could delay the freeze.         

    . . .                                                                

    Q: So sort of in short, while you – your model says it only will take 28 freeze days 
    for the freeze formation to be satisfactory to you –                 

    A: Uh-huh.                                                           
    Q:-- you built in a little bit of cushion, just out of an abundance of caution, and 
    freeze it for a bit longer, is that right?                           

    A: Contingency.                                                      

ECF No. 90-1 at 49–50, (Sopko Dep. 129:2–130:8).  Sopko testified these delays “didn’t 
happen on this job.”  Id. at 50 (Sopko Dep. 130:19–20).  However, when explaining the 
January 3, 2021, authorization to excavate, Sopko testified the full six to eight weeks was 
not required because “[t]he freeze froze faster than the [design] model,” id. at 85 (Sopko 
Dep. 273:9–13), and because “the measured temperatures were a lot colder than we 
anticipated.”  Id. (Sopko Dep. 273:19–20).  Viewing the facts in the light most favorable 
to the nonmoving party, it is necessary to accept that the ground froze faster than the model 
predicted.7    This  circumstantial  evidence  somewhat  supports  an  inference  that  the 
beadedstreams in the temperature monitoring pipes were malfunctioning.    
    (B)  Next,  ECI  argues  the  failure  for  the  flood  event  to  register  on  Keller’s 
temperature monitoring pipes is evidence the sensors were not transmitting accurate data.  
ECI contends “although water (which, by definition, is above freezing temperature) was 
present in the tunnel and throughout the freeze zone, Keller’s temperature-monitoring 
equipment registered no changes.”  ECF No. 89 at 17.  Because the entry point for the 
groundwater was within the proximity to the MTBM, within the freeze zone, ECI claims 

the failure for the temperature-sensors in the temperature monitoring pipes to record 


7    It is not clear from the record how Keller’s measured temperatures compared to the 
as-built model.                                                           
increased  temperatures  demonstrates  that  the  temperature  sensors  were  defective  or 
malfunctioning.  See id. at 18.                                           
    There is a question whether the temperature monitoring pipes should have recorded 

a  substantial  change  in  temperature  before  or  during  the  flood  event.    In  Sopko’s 
deposition, he testified the temperature monitoring pipes “measure the temperature right 
where they are.  They can’t measure outside of it.”  ECF No. 90-1 at 52 (Sopko Dep. 
138:13–14).  When asked about warm water flowing through voids in the freeze zone, 
Sopko testified temperature monitoring pipes would pick up the void “if [the temperature 

monitoring pipes] happen to be in the location of the void, sure.”  Id. at 87 (Sopko Dep. 
280:12–13).  But there is contrary evidence in the record that the temperature monitoring 
pipes should have detected a breach inside the frozen mass.  Keller initially was convinced 
the breach was not in the freeze zone because Keller’s temperature-monitoring equipment 
did not report significant changes in temperature.  Id. at 80–81 (Sopko Dep. 253:19–

254:21).  In particular, Sopko testified in his deposition that he would have expected a 
breach in the frozen mass to show up in the data transmitted by the temperature monitoring 
pipes.  Id. at 80–81 (Sopko Dep. 253:19–254:21).  And viewing the facts in the light most 
favorable to ECI, the breach occurred within the freeze zone.  See, e.g., id. at 81 (Sopko 
Dep. 256:17–257:11).  Moreover, there is some evidence of a void (empty space left by 

subsurface eroding into the tunnel system) near a temperature monitoring pipe.  Id. at 83 
(Sopko Dep. 263:8–264:9).  This is circumstantial evidence that Keller’s beadedstreams in 
its temperature monitoring pipes malfunctioned.                           
    (C)  Finally,  ECI  argues  “Keller’s  temperature-monitoring  equipment  wasn’t 
working properly because its internal sensors were frozen in place, causing them to 
transmit inaccurate data about ground temperatures within the so-called ‘freeze zone.’”  

ECF No. 89 at 14.  To support this theory, ECI provides three emails and a paragraph in an 
affidavit.  ECF No. 91 ¶ 3; see also ECF No. 91-1 at 2.  On June 2, 2021, an ECI employee 
emailed Keller stating “there is [sic] apparently some issues with removing some of the 
temperature pipes that are frozen in?  Not sure why they are frozen in.”  ECF No. 91-1 at 
2.  A Keller employee responded the same day, explaining “[w]e are not sure what the issue 

is.  Its [sic] possible that freshwater got into the top of the pipes and froze on the surface. . . .  
Our plan is to drop a pipe down the temperature monitor and circulate hydrant water to 
attempt to melt the ice (if its [sic] ice) within the temperature pipe.  We would only be 
using this to free up maybe the top 10-feet.  If the blockage is below this, this method wont 
[sic] be enough.”  Id. at 2.                                              

    To start, there is contradictory evidence in the record whether frozen temperature 
monitoring pipes would transmit inaccurate data.  Sopko testified frozen water in the 
temperature monitoring pipes would not impact recorded temperatures:      
    Q: Okay.  And do you ever use water in the temperature monitoring pipes as the 
    liquid?                                                              

    A: Not on purpose.  There’s been times – you could.  There’s been times where 
    surface flooding has flooded pipes.  You’d get the same data.  But when you put – 
    if you did put water in, you know, it would freeze, which is fine, you get data.  Just 
    if you ever have to pull out your temperature string or anything it would be a lot 
    harder.                                                              

    Q: So you’d get the same data from a temperature monitoring pipe that is filled with 
    this calcium chloride brine as you would from a temperature monitoring pipe that is 
    filled with frozen water?                                            

    A: Yes.                                                              
    Q: Okay.                                                             
    A: Yeah, I’ve filled them with sand in some cases too.               
    Q: Okay.  Doesn’t the thing that’s within the temperature monitoring pipe affect at 
    all the thermistor’s ability to read ground temperatures?            

    A: No.                                                               
ECF No. 90-1 at 59 (Sopko Dep. 166:8–167:4).  However, ECI’s expert, Dr. Arthur 
McGinn, opined “a frozen brine solution in a TMP would register with a false positive that 
the formation was fully established and maintained, thereby inaccurately conveying that it 
was safe for ECI personnel to engage in construction activities in the retrieval shaft and in 
the tunnel.”  ECF No. 74-1 at 864.  At this stage, viewing the facts in ECI’s favor, it is 
reasonable to conclude that frozen temperature monitoring pipes would transmit inaccurate 
data.                                                                     
    Regardless, the link between these emails and the flood event is tenuous.  The emails 
and affidavit demonstrate that the temperature monitoring pipes were frozen in June 2021.  

But this evidence does little to show the temperature monitoring pipes were frozen months 
earlier in December 2020 or January 2021, before the flood event occurred.  And the emails 
convey a lack of certainty about the problem.  Statements such as “[the pipes are] not 
supposed to be like that at all,” and “[w]e are not sure what the issue is.  Its [sic] possible 
that freshwater got into the top of the pipes and froze on the surface,” do little to suggest 

the problem is months old.  Without more evidence, it is difficult to infer the temperature 
monitoring pipes froze before the flood event.  Even when considered in conjunction with 
ECI’s other circumstantial evidence, ECI’s evidence that the temperature monitoring pipes 
were  frozen  in  June  2021  is  at  best  weak  circumstantial  evidence  the  temperature 

monitoring pipes were frozen (and thus malfunctioned by transmitting inaccurate data) 
prior to the flood event.                                                 
    Nonetheless, taken collectively, accepting all of ECI’s evidence as true, and drawing 
all justifiable inferences in its favor, Keller’s motion for summary judgment will be denied.  
There is no dispute the beadedstreams were equipment provided by Keller and directly 

employed in the ground freezing operation.  And with the summary-judgment standard in 
mind, ECI presented facts showing: (1) the beadedstreams in the temperature monitoring 
pipes reported data indicating the freeze formed faster than expected; (2) if properly 
functioning the beadedstreams would detect a flood event within the freeze zone; (3) the 
groundwater  and  soil  flowed  into  the  MTBM  from  within  the  freeze  zone;  (4)  the 

temperature monitoring pipes did not detect the flood event; and (5) the beadedstreams 
may have transmitted lower than actual temperatures because the temperature monitoring 
pipes were frozen.8  Because this is enough for a reasonable factfinder to conclude Keller’s 

8    It  is  worth  noting  ECI’s  theory  raises  several  questions.    There  are  multiple 
temperature  monitoring  pipes  with  beadedstreams  containing  temperature  sensors  at 
different depths.  Is ECI suggesting all of the sensors on all of the beadedstreams were 
reporting lower than actual temperatures?  If not all of the sensors, which ones, and why is 
there no evidence of discrepancies between temperature readings in the record?  What 
about the temperature sensor monitoring the returning brine from the freeze pipes and the 
portable datalogger in the MTBM, were those sensors also reporting lower than actual 
temperatures?  But such questions about ECI’s theory are better resolved at trial with the 
benefit of a complete factual record, cross examination, and the ability to resolve disputed 
facts.                                                                    
temperature-monitoring equipment malfunctioned, genuine issues of material fact remain 
for trial.                                                                
                               B                                         

    Keller also seeks summary judgment on ECI’s “liquidated damages claim.”9  Keller 
argues “summary judgment is proper because ECI has not yet been damaged by the mere 
threat of the imposition of liquidated damages.”  ECF No. 66 at 13.  Because ECI has not 
yet paid liquidated damages to the City, Keller contends the “damages are, therefore, 
speculative, and unrecoverable under the law.”  ECF No. 66 at 15.         

    Keller is correct that contractual damages may not be “speculative, remote, or 
conjectural.”  Bollom v. Brunswick Corp., 

, 1222 (D. Minn. 2020).  
But it is necessary to start with the elements of breach of contract.  Under Minnesota law, 
a breach-of-contract claim requires: “(1) a valid contract; (2) performance by the plaintiff 
of any conditions precedent; (3) a material breach of the contract by the defendant; and (4) 

damages.”  Russo v. NCS Pearson, Inc., 

 (D. Minn. 2006) (citation 
omitted); see Park Nicollet Clinic v. Hamann, 

 (Minn. 2011) (same).  
Keller’s objection relates to the damages element of ECI’s breach-of-contract claim.  “In 
order to survive summary judgment, [ECI] must raise a genuine issue of material fact 


9    This issue deserves clarification.  ECI brought two claims: negligence and breach 
of contract.  ECF No. 27 ¶¶ 37–50.  ECI did not bring a separate claim for liquidated 
damages, nor is it seeking liquidated damages from Keller.  See generally 

  A contract 
between the City and ECI “set liquidated damages for delay in the amount of $5,000 for 
each day that expires after the date set for substantial completion.”  ECF No. 75-1 at 20.  
ECI alleges Keller’s breach of contract and negligence caused the flood event, which 
resulted in delays to the Project.  ECF No. 27 ¶ 36.  Thus, ECI seeks to recover (from 
Keller) a portion of the liquidated damages it will pay to the City.      
regarding whether [Keller’s] alleged breach of the [contract] caused [it] damages.”  Bollom, 
453 F. Supp. 3d at 1221.  In Bollom, for example, the court granted summary judgment 
because “[a]ny calculation of a particular amount of general damages would be wholly 

speculative.”  Id. at 1222.  By contrast, Keller contends only some of ECI’s damages are 
speculative.  Because Keller does not dispute ECI incurred monetary damage from the 
flooding to a reasonable level of certainty, the fourth element of ECI’s breach of contract 
claim is satisfied.10                                                     
    Even if Keller could challenge a subset of ECI’s damages as speculative at summary 

judgment, there is a genuine issue of material fact as to the certainty of ECI’s damages.  
Although Keller contends ECI has not yet incurred any liquidated damages, ECF No. 66 at 
14, a reasonable factfinder could conclude that the exact amount of liquidated damages 
ECI owes to the City is known—$2,815,000.  ECF No. 75-1 at 20.  In turn, ECI’s 
scheduling  expert  attributes  96  days  of  delay,  amounting  to  $480,000  of  liquidated 

damages, to Keller.  ECF No. 66 at 14.  And in the context of standing and ripeness in a 
related case, Judge Wright explained why this specific amount is sufficiently certain: 
         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      

10   The same conclusion follows for ECI’s negligence claim.              
         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.                                                 

Eng’g  &  Constr.  Innovations,  Inc.  v.  Bradshaw  Constr.  Corp.,  No.  20-cv-0808 
(WMW/TNL), 

, at *10 (D. Minn. Sept. 25, 2023).  In short, a reasonable 
factfinder could conclude the challenged damages are sufficiently certain. 
                              III                                        
    Rule 702 of the Federal Rules of Evidence governs the admissibility of expert 
testimony.  That rule 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 the proponent demonstrates to the court 
         that it is more likely than not that:                           
         (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’s opinion reflects a reliable application of the 
         principles and methods to the facts of the case.                
Fed. R. Evid. 702; see also Daubert v. Merrell Dow Pharms., Inc., 

 (1993).  
“District  courts  have  wide  latitude  in  determining  whether  an  expert’s  testimony  is 
reliable.”  Olson v. Ford Motor Co., 

, 626 (8th Cir. 2007).  The Eighth Circuit 
has identified a number of factors courts may consider in determining whether an expert’s 
testimony is the product of “reliable principles and methods,” including: 
         (1) whether the theory or technique can be (and has been)       
         tested; (2) whether the theory or technique has been subjected  
         to  peer  review  and  publication;  (3)  whether  the  theory  or 
         technique has a known or potential error rate and standards     
         controlling  the  technique’s  operation;  and  (4)  whether  the 
         theory  or  technique  is  generally  accepted  in  the  scientific 
         community.                                                      

Smith v. Cangieter, 

 (8th Cir. 2006).  “This evidentiary inquiry is meant 
to be flexible and fact specific, and a court should use, adapt, or reject Daubert factors as 
the particular case demands.”  Unrein v. Timesavers, Inc., 

 (8th Cir. 
2005).  As long as the evidence indicates that the expert evidence is reliable and relevant, 
“no single requirement for admissibility” governs.  

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

 (8th Cir. 2001); Fed. R. Evid. 702.  “As a general 
rule, the factual basis of an expert opinion goes to the credibility of the testimony, not the 
admissibility, and it is up to the opposing party to examine the factual basis for the opinion 
in cross-examination.”  Bonner v. ISP Techs., Inc., 

 (8th Cir. 2001) 
(quotation  omitted).    But  the  court  must  exclude  an  expert’s  opinion  if  it  “is  so 
fundamentally unsupported that it can offer no assistance to the jury.”  

 at 929–30 
(quotation omitted).  “Expert testimony is inadmissible 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).  Furthermore, “under Daubert and Rule 403 of the 
Federal Rules of Evidence, the probative value of the expert testimony must not be 
substantially  outweighed  by  the  danger  of  unfair  prejudice,  confusion  of  issues,  or 
misleading the jury.”  United States v. Solorio-Tafolla, 

 (8th Cir. 2003). 
                               A                                         
    Keller moves to exclude the testimony of ECI’s engineering expert, Dr. Arthur 
McGinn.  ECF No. 77.  Dr. McGinn holds a M.S. and B.S. in Civil Engineering from 

Purdue University, and a Ph.D. in Geotechnical Engineering from Cornell University.  ECF 
No. 74-1 at 869.  He is a licensed Professional Engineer with expertise as a civil engineer 
in  the  geotechnical  and  structural  design  of  excavation  support  systems  for  tunnels, 
underpinning systems, and foundations.  Id. at 840, 869.  He has ten publications on soil 
stabilization, id. at 891–92, and over 25 years of civil engineering experience, id. at 869.  

Dr. McGinn is currently the president and CEO of Brierley, a civil engineering firm that 
“specializes in the design and construction of tunnels and heavy civil projects for water, 
wastewater, transportation, and other infrastructure.”  Id. at 839, 869.  
    Dr. McGinn offers five opinions in his report: (1) that Keller breached professional 
engineering standards by failing to consider ECI’s MTBM extraction methods when 

designing the ground-freeze (and failing to modify the design after becoming aware of 
ECI’s methods), ECF No. 74-1 at 837; (2) Keller breached professional engineering 
standards by “failing to verify the effectiveness of the temperature monitoring points,” id.; 
(3) Keller breached professional engineering standards by failing to verify the effectiveness 
of the ground-freeze via proven methods, id. at 837–38; (4) the frozen mass failed to fully 

form in advance of ECI’s work on the project, and Keller’s temperature monitoring 
program  was  “incapable  of  detecting  the  actual  temperatures  within  the  ground  and 
groundwater”  around  the  MTBM,  id.  at  838;  and  (5)  Keller  breached  professional 
engineering standards by relying on unverified data to substantiate its model, “failing to 
recognize  the  as-built  temperatures  were  not  as  Keller  assumed,”  and  removing  the 
datalogger from the MTBM, id.                                             
    Keller acknowledges Dr. McGinn qualifies to testify as a tunneling expert, but 

contends he is not qualified as a ground-freeze expert, arguing “only an engineer practicing 
in the same field at the same time can opine on whether Keller has met its standard of care.”  
ECF No. 92 at 5.  Because Dr. McGinn lacks specialized knowledge, education, or 
experience working on ground-freeze systems, Keller asserts he is unqualified to “render 
any opinions or testimony in this case.”  Id. at 6.  It is true that even when a witness has 

specialized knowledge, “qualification to testify as an expert also requires that the area of 
the  witness’s  competence  matches  the  subject  matter  of  the  witness’s  testimony.”  
29 Charles A. Wright & Victor J. Gold, Federal Practice and Procedure: Evidence § 
6264.2 (2d ed. Apr. 2023 Update).  According to this principle, “courts will prevent a 
witness from testifying as an expert where the witness has specialized knowledge on one 

subject but offers to testify on a different subject.”  Id.  For example, a hydrologist 
specializing in flood risk management qualified as an expert under Rule 702 but lacked the 
expertise to testify about safe warehousing practices to protect steel from floods.  Wheeling 
Pittsburgh Steel Corp. v. Beelman River Terminals, Inc., 

, 715–16 (8th Cir. 
2001).  Likewise, an expert in metallurgy could not testify about the lung’s ability to absorb 

manganese from welding fumes, Jones v. Lincoln Elec. Co., 

, 723–24 (7th 
Cir. 1999), and an expert appraiser could offer an expert opinion on the value of an antique 
item but not that a clock originated from a particular historical period, Levin v. Dalva Bros., 
Inc., 

, 78–79 (1st Cir. 2006).                                 
    But  Keller  discounts  Dr.  McGinn’s  qualifications  as  a  geotechnical  and  civil 
engineer.  An expert with more generalized knowledge in a field can typically testify even 
if they are not a specialist.  29 Charles A. Wright & Victor J. Gold, Federal Practice and 

Procedure: Evidence § 6264.2 (2d ed. Apr. 2023 Update).  For example, In Southern 
Minnesota Beet Sugar Cooperative v. Agriculture Systems, the court found a mechanical 
engineer was qualified to opine on the alleged negligent design of sugar-storage silos 
despite  the  expert  lacking  specific  education  or  experience  regarding  silo  reclaimer 
systems.  No. 17-cv-5552 (WMW/BRT), 

, at *4 (D. Minn. Aug. 31, 

2020).  The court concluded the mechanical engineer “qualifies as an expert regarding the 
mechanical engineering applicable to the reclaimer system.”  

  By the same virtue, Dr. 
McGinn qualifies as an expert regarding the geotechnical and civil engineering principles 
applicable to Keller’s ground-freeze operations.  ECI has adequately demonstrated that 
geotechnical engineering is a subfield of civil engineering, and ground-freezing is at most 

a specialty within the subfield of geotechnical engineering.  Robinson v. GEICO General 
Insurance Co. supports the conclusion that Dr. McGinn’s testimony should not be excluded 
wholesale.  

 (8th Cir. 2006).  In Robinson, the Eighth Circuit affirmed a 
district court’s decision to allow a neurologist to testify regarding “the likely type of injury 
one would sustain by the impact” and “the direction one would be forced in a rear-impact 

collision,” in addition to the onset of shoulder pain within the expert’s specialty.  

.  The Eighth Circuit explained “a physician with general knowledge may testify 
regarding medical issues that a specialist might treat in a clinical setting.”  

  It follows 
that a geotechnical and civil engineer can testify, at least to some extent, about ground-
freeze systems designed and operated by specialists.11                    
    And Keller has not explained why geotechnical and civil engineering standards do 

not apply to ground-freeze systems, nor has it identified specific, critical knowledge Dr. 
McGinn lacks.  For example, in Mattke v. Deschamps, the plaintiff’s expert in sleep 
disorders and pulmonology (a specialty relating to respiratory conditions) was not qualified 
to  testify  about  the  actions  of  Mayo  Clinic’s  pathology  department  to  prevent 
contamination by cellular floaters.  

, 671–72 (8th Cir. 2004).  There, the expert 

testified he was not familiar with cellular floaters, did not know how often they occurred, 
and did not know what measures modern pathology laboratories took to avoid floaters.  Id.  
Dr. McGinn’s experience here is not a completely unrelated specialty—he is a qualified 
civil and geotechnical engineer, essentially the same education as Dr. Alan Auld, Keller’s 
ground-freeze  expert.    Unlike  a  sleep-disorder  and  pulmonary  physician  opining  on 

laboratory procedures to prevent a phenomenon the expert testified knowing nothing about, 
it is reasonably within Dr. McGinn’s expertise to apply, for example, geotechnical and civil 
engineering principles of data verification to Keller’s ground-freezing operation. 



11   There is another concern.  “Keller is one of a few companies in the USA that 
regularly performs ground freeze engineering work.”  ECF No. 80 at 5.  Following Keller’s 
rationale,  only  ground-freeze  engineers  with  industry  experience  could  testify  about 
Keller’s negligence.  “[T]o require the degree of specificity [Keller proposes comes] close 
to letting that industry indirectly set its own standards.”  Stagl v. Delta Air Lines, Inc., 

 (2d Cir. 1997); cf. 29 Charles A. Wright & Victor J. Gold, Federal Practice 
and Procedure: Evidence § 6264.2 (2d ed. Apr. 2023 Update).               
    To the extent this is a close call, it is resolved by the parties agreeing to a bench 
trial.  “The main purpose of Daubert exclusion is to protect juries from being swayed by 
dubious scientific testimony.”  In re Zurn Pex Plumbing Prods. Liab. Litig., 

 (8th Cir. 2011).  For this reason, courts “relax Daubert’s application for bench trials.”  
David E. Watson, P.C. v. United States, 

 (8th Cir. 2012).  The better 
answer is to decide what weight to give Dr. McGinn’s opinions, if any, at trial. 
                               B                                         
    ECI moves to exclude, in part, expert testimony of Dr. Alan Auld.  ECF No. 70.  Dr. 

Auld received his Honours Degree in Applied Science (Civil Engineering) from the 
University of Durham, and a Ph.D. in Civil Engineering from the University of Newcastle 
upon Tyne.  ECF No. 74-1 at 22.  He is a fellow of the Institute of Materials, Minerals and 
Mining, and was a licensed Canadian Professional Engineer before retiring.  

  Dr. Auld 
has more than forty years of experience “within the field of construction, particularly the 

design of deep mine shafts, tunnels and underground mine development works.”  

  In his 
career, he has worked on 18 projects employing artificial ground-freezes and has 16 
publications on the topic of ground freezing.  

 at 24–25.              
    Dr. Auld offers several opinions, including: (1) “Keller’s Ground Freezing Proposal 
clearly set out the terms under which its business was to be carried out in accordance with 

generally-accepted standards and principles that govern professional engineers,” ECF 
No. 74-1 at 16; (2) “Keller’s work was completed in accordance with the Contract,” id.; 
(3) ECI’s failure to seal the circumferential cut, relief slot, and dirt wing prior to carrying 
out welding “caused the melting of the frozen ground above the tunnel roof at the extremity 
of the frozen ground and allowed the groundwater and sand to enter the tunnel through the 
unsealed openings,” id. at 17; (4) “the work carried out inside the tunnel using heat 
activities, and the use of heaters, including the welding to install the jack at 12 o’clock 

could be the main contribution in causing the flood event,” id. at 97; (5) the MTBM “was 
concreted in” by ECI grouting the area around the MTBM head, id. at 14; (6) “ECI hung a 
thin sheet of polyurethane like a drape at the end of the Trailing Can, which was not 
sufficient insulation to prevent the heat from passing down the tunnel,” id. at 6; (7) in his 
rebuttal report, Dr. Auld opined “ECI had a duty of care under the Subcontract to provide 

the necessary information for Keller,” and “[t]he failure of ECI to pass on proper written 
instructions to Keller constitutes a breach of ‘duty of care’ by ECI,” id. at 115–16; and (8) 
Keller’s scope of work on the Project was to provide a ground-freeze, “Keller did not 
guarantee that ECI would recover the MTBM—that was ECI’s scope of work,” id. at 5. 
    (1) ECI seeks to exclude Dr. Auld’s supplemental report.  On September 14, 2023, 

Keller sent a copy of Dr. Auld’s supplemental report to ECI, a report that contained 
additional calculations to support his opinions.  ECF No. 74-1 at 483–84; ECF No. 86-1 at 
15–23.  There is no dispute that Dr. Auld’s supplemental report was written and disclosed 
after the deadlines for expert discovery had passed.  See ECF No. 55. 12  
    Federal  Rule  of  Civil  Procedure  26(a)(2)  requires  the  timely  disclosure  of 

supplemental expert testimony.  See also Wegener v. Johnson, 

 (8th Cir. 


12   Initial expert reports were due on June 1, 2023.  ECF No. 55 at 1.  Rebuttal expert 
reports were due on July 14, 2023.  

  Expert discovery, including depositions, was to be 
completed on or before August 18, 2023.  Id. at 2.                        
2008).  “Since failure to disclose in a timely manner is equivalent to failure to disclose,” 
Trost v. Trek Bicycle Corp., 

 (8th Cir. 1998), Rule 37(c)(1) provides 
the applicable standard: “If a party fails to provide information or identify a witness as 

required by Rule 26(a) or (e), the party is not allowed to use that information or witness to 
supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially 
justified or is harmless.”  See Fed. R. Civ. P. 37(c)(1).  Therefore, the supplemental report 
may be excluded “as a self-executing sanction unless the party’s failure to comply is 
substantially justified or harmless.”  Wegener, 

.  Courts have outlined four 

factors to consider in determining whether a failure to disclose was substantially justified 
or harmless: “(1) the importance of the excluded material; (2) the explanation of the party 
for the failure to comply with the disclosure rules; (3) the potential prejudice from allowing 
the material to be used at trial; and (4) the availability of a continuance to cure such 
prejudice.”    PUR  Water  Purification  Prods.  v.  Brita  Prods.  Co.,  No.  99-cv-749 

(PAM/JGL), 

, at *1 (D. Minn. Mar. 14, 2001) (Magnuson, J.) (citing 
Citizens Bank v. Ford Motor Co., 

 (8th Cir. 1994)); see also Mathers v. 
Northshore Mining Co., 

, 482–83 (D. Minn. 2003); Wegner, 

.                                                                      
    The first factor is the importance of the excluded material.  In his supplemental 

report, Dr. Auld provides calculations on three topics: how fast water flowed into the 
tunnel, the force required to stop the incoming water, and grout bond resistance.  ECF No. 
86-1 at 15–23.  The first two sets of calculations purport to show that if ECI personnel were 
monitoring the MTBM when the leak started, they could have stopped the flood event or 
exited safely.  Id. at 16.  The grout bond resistance calculations purport to show ECI was 
unable to jack the MTBM into the retrieval shaft because it was cemented in place.  Id.  
The parties do not explain how, or if, these calculations are important.  Considering the 

calculations do not relate to the success or failure of the ground-freeze, and a second expert 
for Keller (Paul Wilkinson) opines that the MTBM was cemented in place, it suffices to 
say Dr. Auld’s supplemental report does not seem critical.                
    The second factor is Keller’s justification for the late supplemental report.  Keller 
explains only that “[Dr.] Auld expressly reserved the right to supplement his analysis.”  

ECF No. 85 at 14.  This does not allow Keller to ignore discovery deadlines.  Dr. Auld 
appears to have supplemented his report in response to deposition questions, rather than in 
response to new information.  Id. at 15; ECF No. 86-1 at 15.  Fixing flaws exposed at a 
deposition is not a valid justification for a late supplemental report.  See Petrone v. Werner 
Enters., Inc., 

, 434–36 (8th Cir. 2019).  Dr. Auld’s report is not a justifiably 

late response to an opposing party’s late expert disclosure, PUR Water, 

, 
at *2, or the result of reviewing new documents disclosed after the close of discovery, 
Bison Advisors LLC v. Kessler, No. 14-cv-3121 (DSD/SER), 

, at *10 
(D. Minn. Jan. 21, 2016).  Because Keller provides no valid justification for Dr. Auld’s late 
supplemental report, this factor strongly supports exclusion.             

    The third factor is prejudice.  In Jackson v. Allstate Insurance Co., a late disclosure 
of a supplemental report was harmless, not prejudicial.  

, 1203–04 (8th Cir. 
2015).  There, the plaintiff fully deposed the defendant’s expert with respect to a late field 
study and never requested a supplemental deposition.  

.  Not so here.  ECI 
already deposed Dr. Auld, and Dr. McGinn disclosed a timely rebuttal report.  ECI has 
been prejudiced by losing the opportunity to depose Dr. Auld and provide rebuttal expert 
testimony regarding the new information in Dr. Auld’s supplemental report.  Moreover, if 

considered, Dr. Auld’s supplemental report would affect ECI’s pending motion to exclude 
Dr. Auld’s testimony.  This prejudice supports exclusion.                 
    The fourth factor is the ability to cure the prejudice.  In Lenzen v. Garon Products, 
Inc., Judge Nelson declined to strike late expert affidavits, instead requiring a plaintiff to 
make the experts available for two hours of additional deposition time.  No. 09-cv-2893 

(SRN/AJB), 

, at *6 (D. Minn. Apr. 23, 2012).  Allowing ECI to further 
depose Dr. Auld and permitting Dr. McGinn to supplement his rebuttal report might cure 
the prejudice to ECI.  This possibility weighs against exclusion.  But because Keller 
provided no valid justification for Dr. Auld’s late supplemental report and the contents are 
not critical to Keller’s case, the supplemental report’s late disclosure is not substantially 

justified or harmless and will be excluded.  Dr. Auld may not testify about the contents of 
the supplemental report at trial, nor will it be considered when deciding ECI’s motion to 
exclude Dr. Auld’s expert testimony.                                      
    (2) Dr. Auld’s expert testimony that heaters contributed to the flood event will be 
excluded.    Daubert  requires  “a  preliminary  assessment  of  whether  the  reasoning  or 

methodology underlying the testimony is scientifically valid and of whether that reasoning 
or methodology properly can be applied to the facts in issue.”  Daubert, 509 U.S. at 592–
93.  “Generally speaking, an expert’s methodology should be deemed reliable when that 
expert derives her courtroom opinions using the same level of rigor that characterizes 
practice in the relevant field of expertise.”  29 Charles A. Wright & Victor J. Gold, Federal 
Practice and Procedure: Evidence § 6268.1 (2d ed. Apr. 2023 Update).  Courts typically 
exclude expert testimony when an expert fails to identify any methodology.  Ahlberg v. 

Chrysler Corp., 

, 635 (8th Cir. 2007); Varlen Corp. v. Liberty Mut. Ins. Co., 

 (7th Cir. 2019); Koken v. Black & Veatch Const., Inc., 

 
(1st Cir. 2005).                                                          
    Dr. Auld’s opinion that the heaters caused the flood event is not supported by 
reliable principles and methods.  In his deposition, Dr. Auld testified he used “[n]o 

scientific methodology,” stating his conclusions are based on “the fact that [ECI] used the 
heater and the flooding occurred.”  ECF No. 74-1 at 321 (Auld Dep. 158:14–16).  Dr. Auld 
did not perform any calculations to reach his conclusion that heaters caused the flood event, 
id. at 321 (Auld Dep. 158:4–7), or consider any alternative possible causes, id. 307 (Auld 
Dep. 144:19–22).  Without identifying any reliable principles or methods, Dr. Auld’s 

expert opinion that the heaters caused the flood event will be excluded.  
    Keller counters that “a witness who is qualified as an expert by his knowledge, skill, 
experience, training, or education may provide testimony in the form of an opinion.”  ECF 
No. 85 at 4.  This ignores the problem.  Under Rule 702, expert qualifications are a 
necessary—but not sufficient—predicate to admissibility.  See, e.g., Polski v. Quigley 

Corp., 

, 839–40 (8th Cir. 2008).  As the Eighth Circuit explained in Marmo, 
“the proponent of the expert testimony must show by a preponderance of the evidence both 
that the expert is qualified to render the opinion and that the methodology underlying his 
conclusions is scientifically valid.”  457 F.3d at 757–58 (emphasis added).  Dr. Auld’s 
heater opinion fails to meet the latter requirement.  Keller further argues that because in 
Bonner v. ISP Technologies, Inc., “it was not necessary that [plaintiff’s] experts quantify 
the amount of [product] to which she was exposed,” Dr. Auld does not need to calculate 

“the exact amount of temperature of the heat ECI applied to the freeze in the tunnel.”  

.  Fair enough.  Dr. Auld did not need to calculate the exact number of kilojoules 
generated by the heaters for his testimony to be admissible—a variety of principles or 
methods could have been sufficiently reliable.  The problem is that Dr. Auld has not 
explained what principles and methods, if any, he relied upon.  In Bonner, the court 

explained “the district court carefully reviewed Dr. Martinez’s methodology and concluded 
that it was sufficiently reliable.”  

.  Here, there is no such methodology to examine. 
    (3) Dr. Auld’s grouting opinion will be excluded for the same reason.  Once again, 
Dr. Auld did not perform any calculations or analysis to conclude ECI’s grouting near the 
retrieval shaft prevented the MTBM from advancing.  ECF No. 74-1 at 430 (Auld Dep. 

267:12–16).  The basis for his conclusion was “[j]ust the fact that it’s grout.  It’s cement.”  
Id. at 432 (Auld Dep. 269:8–14).  He did not consider the volume of grout, id. at 432 (Auld 
Dep. 269:3–7) or the composition of the grout, id. at 430 (Auld Dep. 267:2–6), when 
reaching his conclusion.  For the same reasons discussed above, his opinion that grout 
prevented the MTBM from advancing into the retrieval shaft will be excluded because it 

is not the product of reliable principles and methods.                    
    (4) Dr. Auld’s opinion that ECI’s insulation was insufficient to contain the heat will 
be excluded on familiar grounds.  When asked for the basis of this opinion, Dr. Auld 
responded “no calculation or scientific validation.  Just an opinion.”  ECF No. 74-1 at 415 
(Auld Dep. 252:11–17).  He did not provide any methodology for his opinion, instead 
explaining the opinion was “[j]ust observation of the statement,” from “[r]eading the 
description of what [the insulation] was.”  Id. at 415–16 (Auld Dep. 252:18–253:1).  For 

the  same  reasons  discussed  above,  Dr.  Auld’s  opinion  lacks  reliable  principles  and 
methods.                                                                  
    (5) Dr. Auld’s opinions regarding ECI’s communications with Keller must be 
parsed more carefully.  “Matters of law are reserved exclusively for the Court.”  Taqueria 
El Primo LLC v. Ill. Farmers Ins. Co., 

, 987 (D. Minn. 2021) (citing 

S. Pine Helicopters, Inc. v. Phoenix Aviation Managers, Inc., 

, 841 (8th Cir. 
2003)).    For  this  reason,  expert  testimony  on  legal  issues  is  inadmissible.    S.  Pine 
Helicopters, 320 F.3d at 841.  Because the interpretation of an unambiguous contract is a 
matter of law, “[e]xperts may not testify to the meaning of a contract where the language 
is unambiguous.”  In re ResCap Liquidating Tr. Litig., 

, 923 (D. Minn. 

2020).  And an expert may not opine on a party’s duties under a contract, because a duty 
is a question of law.  See The Shaw Group, Inc. v. Marcum, 

 (8th Cir. 
2008).  Even when a contract is ambiguous, “an expert may not simply offer their personal 
opinion about a contract’s meaning or applicability.”  In re ResCap, 432 F. Supp. 3d at 
923.  However, experts may opine on industry standards, S. Pine Helicopters, 320 F.3d at 

841, and (if relevant) “how a reasonable industry participant would view certain contractual 
provisions or clauses.”  In re ResCap, 432 F. Supp. 3d at 923 (citing Kruszka v. Novartis 
Pharm. Corp., 

 (D. Minn. 2014)).                   
    Here, Dr. Auld contends there is a duty of care in the following provision of the 
Subcontract:  “Communications.    Contractor  understands  the  importance  of  good 
communications  and  will  (i)  give  Subcontractor  the  notice  to  proceed,  (ii)  keep 

Subcontractor informed of scheduling changes, and (iii) respond timely to Subcontractor’s 
questions and concerns.”  ECF No. 62-1 § 3(a).  More specifically, Dr. Auld agreed in his 
deposition that his “opinion is that the phrase ‘Contractor understands the importance of 
good communications’ is a freestanding obligation on ECI to inform Keller of certain 
things.”  ECF No. 74-1 at 366 (Auld Dep. 203:10–16).  It follows from The Shaw Group 

that Dr. Auld may not testify about ECI’s duties under the contract.  

 (“The 
court properly excluded any expert testimony as to Shaw’s duty under the contract, 
permitting [the expert witness] to testify only as to the ordinary business practices of those 
engaged in private contracting with the military.”).  And Keller does not expressly contend 
this provision is ambiguous, explain how the provision is ambiguous, or “suggest that the 

ambiguity involves terms of art or unique industry practices that Dr. [Auld] must explain 
to a [factfinder] based on his specialized knowledge or experience.”  Fair Isaac Corp. v. 
Fed. Ins. Co., 

, 873 (D. Minn. 2020).  In other words, Dr. Auld’s 
opinion  that  the  Subcontract  included  a  duty  of  care  requiring  ECI  to  effectively 
communicate  with  Keller  is  an  impermissible  personal  opinion  on  the  Subcontract’s 

meaning.  And it follows that Dr. Auld may not opine that ECI breached such an alleged 
contractual  duty.    However,  Dr.  Auld’s  remaining  testimony  about  ECI’s  lack  of 
communication is not excluded here.  For example, this includes why it is important, based 
on Dr. Auld’s industry experience, for a general contractor to provide a method-statement 
or other information to a ground-freeze subcontractor.                    
    (6) ECI seeks to exclude Dr. Auld’s opinion on the parties’ scope of work under the 

Subcontract.  ECF No. 72 at 26–27.                                        
      The scope-of-work provision in the Subcontract states:             
         Subcontractor agrees to provide all labor, materials, services, 
         and equipment to perform the following scope of work on the     
         Project:  Wisconsin  PE  Design  of  frozen  soil  system  for  
         temporary ground stabilization and ground water control.  The   
         installation  and  oversight  of  the  ground  freeze  system  in 
         accordance with Subcontractor’s proposal dated October 6,       
         2020,  attached  hereto  as  Exhibit  A.    The  Drilling  and  
         installation of ground freeze pipe (including furnishing of pipe) 
         is the responsibility of Contractor.                            

ECF No. 74-1 at 28.  Dr. Auld’s scope of work opinions run into the same problem as his 
duty of care opinions—experts may not testify on matters of law.  S. Pine Helicopters, 320 
F.3d at 841.  The parties’ scope of work is defined by the Subcontract, and the interpretation 
of that Subcontract is a matter of law.  See Winthrop Resources Corp. v. Eaton Hydraulics, 
Inc., 

 (8th Cir. 2004) (“If [a] contract is unambiguous, the interpretation 
is a question of law” and “the court cannot consider anything other than the contract.” 
(citations omitted)).  Keller does not contend the scope of work clause is ambiguous or that 
Dr. Auld’s expertise helps resolve such ambiguity.                        
    Instead,  Keller  contends  that  “[w]hen  experts  are  ‘trained  by  experience  and 
intimately familiar with the types of contracts . . . at issue,’ they may testify if their opinions 
on the contract at issue ‘are limited to [their] understanding of normal industry practices 
and customs with respect to contract provisions like the clause[s] at issue, as well as how 
a reasonable industry participant would view certain contractual provisions or clauses.’”  
ECF No. 85 at 14 (citing In re ResCap, 432 F. Supp.3d at 923).  In re ResCap is not 
analogous.  There, Judge Nelson allowed an expert underwriter to opine (narrowly) on 

certain representations and disclaimers in mortgage loans.  Id. at 923.  To conclude loans 
contained material underwriting defects, the expert in ResCap evaluated the loans to 
determine whether they “(a) were likely to be repaid and were supported by adequate 
collateral when initially evaluated; (b) complied with the documentation requirements for 
the borrower’s credit profile; (c) fulfilled hazard and title insurance requirements; and (d) 

complied with various contractual and legal requirements, such as various disclosure 
requirements under federal statutes and anti-predatory lending requirements under state 
statutes.”  Id. at 920.  In other words, the expert’s opinions “of normal industry practices 
and customs with respect to contract provisions” were a predicate to the expert’s principal 
opinions regarding underwriting defects.  See In re ResCap, 432 F. Supp. 3d at 921–23.  

By contrast, Dr. Auld only opines directly on ECI and Keller’s scope of work, he does not 
offer any opinions on normal industry practices and customs with respect to scope-of-work 
provisions in ground-freeze subcontracts.  Nor does the record demonstrate Dr. Auld has 
experience with ground-freeze contracts, unlike the expert underwriter in ResCap.  And to 
the extent Dr. Auld’s opinion does “not render a legal opinion on the contract language,” 

but instead opines according to principles that govern professional engineers, see ECF No. 
85 at 14, Keller does not explain how such an opinion is helpful when the parties’ scope of 
work is governed by the Subcontract.                                      
                               C                                         
    ECI also moves to exclude the expert testimony, in part, of Erin Fallon.  Fallon is 
Keller’s damages expert retained to refute ECI’s damages expert (HKA).  She has a B.S. 

in Chemical Engineering from the University of Pittsburgh and over twenty years of 
experience in “expert consulting and project advisory services for clients in the engineering 
and construction industries.”  ECF No. 74-1 at 547.  In her work, “[s]he regularly focuses 
on  schedule  delay  and  disruption  analysis,  loss  of  productivity,  and  cost  damages 
quantification  issues,  and  participates  in  various  phases  of  claims  management  and 

litigation.”  Id.                                                         
    Fallon lists sixteen expert opinions in her rebuttal report.  The upshot of Fallon’s 
opinions is that ECI’s expert HKA failed to perform adequate analysis, failed to account 
for important facts, and relied on incorrect assumptions.  ECF No. 74-1 at 516–19.  ECI 
seeks to exclude statements near the end of Fallon’s report and opinions expressed during 

her deposition.  In her report, she opined that “HKA failed to substantiate ECI was actually 
assessed liquidated damages,” id. at 543, and at her deposition she testified “I don’t think 
it’s appropriate to assert a claim unless you incurred the cost. . . . [M]y opinion is that at 
first you need to establish that those liquidated damages were incurred as a result of 
Keller’s failure, and two, that you actually incurred and paid those costs,” id. at 630 (Fallon 

Dep. 202:12–21).  Fallon also opined “HKA and ECI failed to establish or substantiate any 
allegation that the Flood Event . . . was the result of Keller’s defective or malfunctioning 
equipment.”  Id. at 538.                                                  
    (1) Fallon’s opinion on the appropriateness of ECI’s claim for liquidated damages 
will be excluded.  “Matters of law are reserved exclusively for the Court.”  Taqueria El 
Primo, 577 F. Supp. 3d at 987 (D. Minn. 2021) (citing S. Pine Helicopters, 320 F.3d at 

841).  And whether a category of damages is available is a matter of law.  See, e.g., 
Barr/Nelson, Inc. v. Tonto’s, Inc., 

 (Minn. 1983).  Keller counters that 
“[a] damage expert’s job is to opine on what damages are available. . . . Fallon applied the 
methodology . . . and concluded that ECI is not entitled to liquidated damages.”  ECF No. 
85 at 19.  Not so.  Damages experts “must make assumptions about liability and the parties’ 

legal theories in order to calculate damages.”  Mahaska Bottling Co., Inc. v. PepsiCo, Inc., 

,  758  (S.D.  Iowa  2019).    Calculating  damages  based  on  legal 
assumptions is not the same as “directly opining on the validity of the party’s underlying 
legal theories.”  Id. at 757.  Fallon’s opinion that “it’s not appropriate to assess liquidated 
damages,” ECF No. 74-1 at 630 (Fallon Dep. 202:4–13), is based on her “opinion . . . that 

at first you need to establish that those liquidated damages were incurred as a result of 
Keller’s failure, and two, that you actually incurred and paid those costs,” id. (Fallon Dep. 
202:12–21).  Opining on the appropriateness of liquidated damages in this context is a 
legal, not factual, opinion.  “[Q]uestions of law are the subject of the court’s instructions 
and not the subject of expert testimony.”  United States v. Klaphake, 

, 438–39 

(8th Cir. 1995) (quoting United States v. Vreeken, 

 (10th Cir. 1986)).   
    (2) ECI also seeks to exclude Fallon’s opinions about the Subcontract’s meaning.  
ECF No. 72 at 31.  More specifically, it seeks to exclude Fallon’s opinion that HKA and 
ECI  failed  to  establish  that  the  flood  event  was  the  result  of  Keller’s  defective  or 
malfunctioning equipment.  See 74-1 at 538.  Keller, as the proponent of the expert 
testimony, “must prove its admissibility by a preponderance of the evidence.”  Lauzon, 

; Fed. R. Evid. 702.  However, Keller did not respond, waiving its objections to 

ECI’s motion.  See Hernandez-Diaz v. Equifax Info. Servs., No. 22-cv-2302 (JRT/JFD), 

, at *2 (D. Minn. Feb. 15, 2023).  Regardless, Fallon’s opinions on this 
subject would not be helpful because courts are well-equipped to interpret contracts and 
evaluate the sufficiency of the evidence.                                 
                               D                                         

    Finally, ECI moves to exclude the expert testimony, in part, of Paul Wilkinson.  
Wilkinson has a Higher National Degree in Engineering Surveying from Nottingham Trent 
University.  ECF No. 74-1 at 641.  He is a microtunneling expert with over 30 years of 
experience “with the procurement, installation and close-out on over 200 microtunneling 
and pipe jacking projects.”  

  Wilkinson has overseen more than 100 kilometers of 

trenchless tunnel construction in over 25 countries.  

  He is currently a senior consultant 
at Kilduff Underground Engineering, Inc., where he provides engineering and construction 
consultation for microtunneling and pipe jacking projects.  

           
    Wilkinson offers a rebuttal report to Dr. McGinn’s expert report.  In Wilkinson’s 
report, he opines: (1) given the conditions of the Project, the microtunneling drive should 

only have been “undertaken by a recognized and experienced Microtunnelling Contractor,” 
ECF No. 74-1 at 635, and because ECI did not have sufficient microtunneling experience 
they “were always likely to have problems” with such a complex project, id. at 639; (2) 
ECI’s microtunneling drive was not successful because the MTBM was out of alignment 
with the reception seal, id. at 637; (3) ECI “did not effectively engage with [Keller] to 
address the proposed means and methods to rescue the MTBM,” id. at 639; and (4) it was 
not possible for ECI to jack the MTBM into the retrieval shaft without removing the grout 

bond, id. at 640.                                                         
    (1) ECI seeks to exclude Wilkinson’s opinion about ECI’s communications with 
Keller because “ECI’s obligations in that regard are governed by a contract that Wilkinson 
didn’t read.”  ECF No. 72 at 35.  But ECI identifies no authority that requires an expert to 
review the contract to testify about industry standards or the importance of communication 

in a negligence case.  And its reliance on Teska v. Potlach Corp. is not persuasive.  

 (D. Minn. 2002).  In Teska, the court pointed out an expert’s failure to review 
the operative contracts and subcontracts as part of a laundry list of problems with the 
expert’s qualifications.  

 (“[The expert] did not review any other documents, 
manuals, handbooks, or regulations; he did not view the site of the accident; he did not 

review the operative contracts, and subcontracts; and he did not interview any of the 
witnesses himself.  [The expert] conceded that he had not consulted any substantive texts, 
in forming his opinions in this case, and that he has relied solely upon his own past training 
and experience. . . .  More importantly, the Record is bereft of any showing that [the expert] 
was personally aware of the construction practices of building contractors, particularly as 

they relate to the operation of a crane in Minnesota generally, or in northern Minnesota in 
particular.”).  By contrast, ECI does not challenge Wilkinson’s microtunneling industry 
experience.  And the “ordinary business practices of those engaged in [an industry]” is an 
admissible expert opinion.  The Shaw Grp., 

.              
    ECI further contends, “Wilkinson also did not review any email communications 
between ECI and Keller and did not consider any of the deposition transcripts of ECI 
personnel.”  ECF No. 72 at 35.  True.  But Wilkinson reviewed Dr. McGinn’s report and 

the communications embedded in Dr. McGinn’s report.  ECF No. 74-1 at 637–39.  And 
“[a]s a general rule, the factual basis of an expert opinion goes to the credibility of the 
testimony, not the admissibility, and it is up to the opposing party to examine the factual 
basis for the opinion in cross-examination.”  Larson v. Kempker, 

 (8th 
Cir. 2005) (quotation omitted).  Wilkinson’s opinion that ECI should have communicated 

its rescue methods with Keller is not “so fundamentally unsupported that it can offer no 
assistance to the jury.”  

 (quotation omitted).  ECI’s motion to exclude Wilkinson’s 
communication opinions will be denied.                                    
    (2) ECI also seeks to exclude Wilkinson’s opinion that “if the [recovery] plans had 
been discussed in detail with Keller throughout, then some of the issues that were had at 

the end of the project with the flooding may never have materialized.”  ECF No. 74-1 at 
823 (Wilkinson Dep. 179:20–24).  “Expert testimony that is speculative is not competent 
proof.”  Concord Boat Corp. v. Brunswick Corp., 

 (8th Cir. 2000).  
For example, in Werth v. Hill-Rom, Inc., the court excluded expert testimony as speculative 
because “the Report simply describes ways in which a chip could have broken free of the 

quartz tube and made its way to the bassinet; it is replete with possibilities and conjecture.”  

 (D. Minn. 2012).  To ECI’s point, Wilkinson is opining about 
what Keller might have done if provided with ECI’s intended removal methods.  However, 
Wilkinson explains the basis for his conclusion—ECI was “planning to leave the tunnel 
structurally unsupported,” ECF No. 74-1 at 824 (Wilkinson Dep. 180:1–2), and “[h]ad ECI 
been able to jack the MTBM forward[,] the unsupported ground would more than likely 
have collapsed with catastrophic consequences,” id. at 640.  Moreover, Wilkinson bases 

his opinion on Keller contacting ECI with concerns on January 20, 2021—after learning 
about ECI’s plan to remove the MTBM without structural support but before the flood 
event.  Id. at 639.  In light of Daubert’s relaxed application for bench trials, see David E. 
Watson, 

, Wilkinson’s opinion is sufficiently supported so as to not be 
wholly speculative.                                                       

    (3) Wilkinson’s opinion that ECI’s microtunneling drive was unsuccessful will be 
excluded.  Rule 702 requires that evidence or testimony “help the trier of fact to understand 
the evidence or to determine a fact in issue.”  “This condition goes primarily to relevance.”  
Daubert, 

.  “Expert testimony which does not relate to any issue in the case 
is not relevant and, ergo, non-helpful.”  

 (quotation omitted).  The condition of the 

MTBM at the retrieval shaft is relevant—at minimum as background information to the 
ground-freeze and MTBM retrieval efforts.  But characterizing ECI’s microtunneling drive 
as a success or failure makes no difference to Keller’s breach-of-contract claim, ECI’s 
negligence claim, or ECI’s breach-of-contract claim.  Keller counters that ECI “put the 
matter in issue when it alleged the success of its work it [sic] in its Counterclaim,” and by 

including the statement in Dr. McGinn’s report.  ECF No. 85 at 22–24.  That’s beside the 
point.  Dr. McGinn does not offer an expert opinion on the success or failure of the 
microtunneling drive—he includes only five specific opinions in his report.  ECF No. 74-1 
at 837–38.  And a party’s characterization of facts in a complaint does not render expert 
testimony refuting that characterization relevant at trial.  Keller further argues, “[w]hether 
ECI was qualified to self-perform the work on this project and whether its microtunnel 
drive  under  the  river  was  ‘successful’  are  all  part  of  Keller’s  defense  to  ECI’s 

counterclaims” and that “[t]hose questions are central to this case and to ECI’s claims 
against Keller.”  ECF No. 85 at 24.  But Keller does not elaborate how and why those 
questions  matter.    Wilkinson’s  expert  opinion  that  ECI’s  microtunneling  drive  was 
unsuccessful will not help the trier of fact in this case.                
    (4) The same follows for Wilkinson’s opinion that “ECI did not have the experience 

or qualifications to construct the tunnel and were always likely to have problems that could 
develop into major issues.”  ECF No. 74-1 at 639.  The execution of the Subcontract and 
flood event both occurred after the MTBM became stuck at the retrieval shaft.  The ground-
freeze, not the micro-tunneling, is the central issue in this case.  And although the actual 
conditions of the of the tunnel are relevant to the ground-freeze and MTBM retrieval, the 

likelihood of problems arising in ECI’s microtunneling drive does not matter.  Simply put, 
for Wilkinson to opine ECI was “always likely to have problems that could develop into 
major issues” is not helpful.  Keller, as the proponent of the expert testimony, “must prove 
its admissibility by a preponderance of the evidence.”  Lauzon, 

; Fed. R. 
Evid. 702.  It did not.                                                   

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

    1.   Defendant and Counter-Claimant Engineering & Construction Innovations, 
Inc.’s Motion for Summary Judgment [ECF No. 59] is GRANTED.               
    2.   Plaintiff  and  Counter-Defendant  Keller  Industrial,  Inc.’s  Motion  for 
Summary Judgment [ECF No. 64] is DENIED.                                  
    3.   Plaintiff and Counter-Defendant Keller Industrial, Inc.’s Motion to Exclude 

Expert Testimony of Dr. McGinn [ECF No. 77] is DENIED.                    
    4.   Defendant and Counter-Claimant Engineering & Construction Innovations, 
Inc.’s Motion to Exclude Expert Testimony of Dr. Auld [ECF No. 70] is GRANTED IN 
PART and DENIED IN PART as explained in Part III.B., above.               
    5.   Defendant and Counter-Claimant Engineering & Construction Innovations, 

Inc.’s Motion to Exclude Expert Testimony of Erin Fallon [ECF No. 70] is GRANTED. 
    6.   Defendant and Counter-Claimant Engineering & Construction Innovations, 
Inc.’s  Motion  to  Exclude  Expert  Testimony  of  Paul  Wilkinson  [ECF  No.  70]  is 
GRANTED IN PART and DENIED IN PART as explained in Part III.D., above.    

Dated: January 18, 2024            s/ Eric C. Tostrud                     
                                  Eric C. Tostrud                        
                                  United States District Court