E&I Global Energy Services, Inc. et al v. Liberty Mutual Surety Co.

1
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
E&I GLOBAL ENERGY SERVICES, INC.
and E&C GLOBAL, LLC,
Plaintiffs,
vs.
LIBERTY MUTUAL INSURANCE CO.,
Defendant.
4:20-CV-04033-KES
ORDER DENYING PLAINTIFFS’
MOTION TO RECONSIDER;
DENYING PLAINTIFFS’ MOTION TO
ORDER EXPERT REPORT OR TO
LIMIT MATTINGLY’S TESTIMONY TO
LAY PERSON TESTIMONY; and
DENYING PLAINTIFFS’ MOTION TO
COMPEL
BACKGROUND
This case centers around a government project for a substation—the VT
Hanlon Substation. See Docket 43 ¶ 3; Docket 44 ¶ 3. Plaintiffs E&I Global
Energy Services, Inc. and E&C Global, LLC, (collectively E&I) sue Liberty
Mutual Insurance Co. on five grounds, including breach of contract and fraud.
See Docket 43 at 9-12. On June 7, 2021—E&I’s deadline to submit expert
identities and retained experts under Rule 26(a)(2)—E&I timely served Aaron
Raddock’s identity and report. See Docket 48 at 2-3; Docket 54 at 3. On
October 29, 2021, E&I served a second witness designation form for Raddock—
but not his report—and noted in its designation that “If called at trial, Mr.
Raddock will testify in accordance with the report attached to Plaintiffs’ first
designation of expert witness testimony in addition to lost enterprise value.”
Docket 49-4 at 2 (emphasis added). On December 15, 2021, E&I served
Raddock’s second report. Docket 48 at 4; Docket 54 at 3.
Case 4:20-cv-04033-KES Document 88 Filed 01/24/23 Page 1 of 13 PageID #: <pageID>

2
Liberty filed a motion to exclude Raddock’s second report as untimely.
Docket 47 at 1. The court granted Liberty’s motion, finding that “E&I’s failure
to timely submit Raddock’s December 15 report is neither substantially
justified nor harmless.” See Docket 60 at 23.
E&I now moves the court to reconsider its decision to exclude Raddock’s
second report. Docket 74 at 1. E&I further asks the court to “limit Liberty
Mutual’s expert to testimony for which the court finds he is sufficiently
qualified to testify and that which Liberty Mutual has disclosed.” Id. As part of
this request, E&I requests that the court “order Liberty Mutual to disclose its
expert’s rebuttal report, so E&I can prepare for trial, or else issue an order
limiting Mr. Mattingly to his factual testimony and opinions the court finds him
sufficiently knowledgeable to testify.” Docket 75 at 16. Finally, E&I moves the
court to “order Liberty Mutual to supplement its document production to
provide documents responsive to E&I’s Request for production.” Docket 74 at
1. The court addresses these three motions in turn.
DISCUSSION
I. 	Motion to Reconsider
Rule 60(b) provides that “[o]n motion and just terms, the court may
relieve a party . . . from a[n] . . . order” based on at least one of six enumerated
reasons. Fed. R. Civ. Proc. 60(b). “A district court should grant a Rule 60(b)
motion ‘only upon an adequate showing of exceptional circumstances.’ ”
Richards v. Aramark Servs., Inc., 108 F.3d 925, 927 (8th Cir. 1997) (quoting
United States v. Tracts 10 & 11 of Lakeview Heights, 51 F.3d 117, 120 (8th Cir.
Case 4:20-cv-04033-KES Document 88 Filed 01/24/23 Page 2 of 13 PageID #: <pageID>

3
1995)). The court has “wide discretion” in ruling on a Rule 60(b) motion. Jones
v. Swanson, 512 F.3d 1045, 1048 (8th Cir. 2008). Rule 60(b) motions do not
allow for movants to simply relitigate issues a district court has already ruled
on. See In re SDDS, Inc., 225 F.3d 970, 972 (8th Cir. 2000).
Here, E&I largely fails to present any new argument or fact that it could
not have made at the time it litigated this issue initially. Instead, E&I mostly
repeats its arguments. For example, in its motion to reconsider, E&I again
argues that it timely served Aaron Raddock’s Supplemental Expert Disclosure
on October 29, 2021. See Docket 75 at 4. But E&I made this argument
initially, and the court already rejected it in its initial order. See, e.g., Docket
54 at 3; Docket 60 at 9 n.3. Similarly, E&I repeats its argument that it put
Liberty “on notice” on October 29, 2021, when it provided Raddock’s
Supplemental Expert Disclosure, and thus Liberty’s “silence” in not objecting
establishes that Liberty acquiesced to Raddock’s upcoming report. See Docket
75 at 11-12; Docket 54 at 3. E&I also provides the court with extensive email
correspondence between E&I and Liberty’s counsel. See, e.g., Docket 75-1;
Docket 75-2. But E&I could have included these emails in its original
opposition to Liberty’s motion to exclude, and it did not. E&I further re-asserts
that the prejudice to it is significant, and that the court should have considered
a less harsh sanction. See Docket 75 at 8-9. But the court already balanced
the equities involved in the case and will not re-engage in its analysis. See
Docket 60 at 16-26. The court finds these arguments insufficient to warrant
reconsideration.
Case 4:20-cv-04033-KES Document 88 Filed 01/24/23 Page 3 of 13 PageID #: <pageID>

4
E&I does raise a few new arguments, but these arguments either (1) were
available to E&I at the time it litigated this issue; or (2) do not rise to the level
of “exceptional circumstances” required under Rule 60(b). E&I argues for the
first time that the impacts of COVID-19 impacted its counsel’s ability to meet
deadlines. See Docket 75 at 13. But E&I never made this argument—even
though it could have—and thus the court will not consider it now. E&I also
argues that Liberty failed to comply with Local Rule 37.1 because Liberty never
conferred with E&I before filing its motion to exclude Raddock’s second
supplemental report. See Docket 75 at 13-14. Local Rule 37.1 provides:
A party filing a motion concerning a discovery dispute
must file a separate certification describing the good
faith efforts of the parties to resolve the dispute. If the
court schedules a hearing on the motion, at least 7
calendar days prior to the hearing, or sooner as the
court may require, the parties must file a statement
setting forth the matters upon which they have been
unable to agree.
Although E&I did argue initially that Liberty failed to meet and confer
prior to Liberty filing its motion to exclude Raddock’s second report, E&I did
not cite Local Rule 37.1. As a result, the court did not consider Local Rule 37.1
in its analysis and concluded in a footnote that because Federal Rule of Civil
Procedure Rule 37 did not require such conferral, Liberty was not obligated to
do so. See Docket 60 at 21 n.5. By its express terms, Local Rule 37.1 applies to
“discovery disputes,” and discovery disputes fall under Federal Rule of Civil
Procedure 37(a). Indeed, Local Rule 37.1 is a supplement to Federal Rule of
Civil Procedure 37(a)(1), which requires that before filing a motion to compel
discovery, that motion “must include a certification that the movant has in
Case 4:20-cv-04033-KES Document 88 Filed 01/24/23 Page 4 of 13 PageID #: <pageID>

5
good faith conferred or attempted to confer with the person or party failing to
make disclosure or discovery in an effort to obtain it without court action.” See
Fed. R. Civ. Proc. 37(a)(1); Rosane v. Shannon Cty. Sch. Dist. 65-1, 2012 WL
3637191 (D.S.D. Aug. 21, 2012), at *2 (analyzing Federal Rule of Procedure
37(a)(1) with Local Rule 37.1). The motion here is based on a failure to disclose,
which falls under Federal Rule of Civil Procedure 37(c), which does not have a
meet and confer requirement. See Vanderberg v. Petco Animal Supplies Stores,
Inc., 906 F.3d 698, 707 (8th Cir. 2018). The meet and confer requirement only
applies to motions to compel discovery. See, e.g., Black Hills Molding, Inc. v.
Brandom Holdings, LLC, 295 F.R.D. 403, 409 (D.S.D. 2013) (noting conferral
requirement applies to motions to compel disclosure); Highmark Inc. v.
Northwest Pipe Co., 2012 WL 997007 (D.S.D. March 23, 2012), at *4 (“Local
Rule 37.1 requires the parties to make a good faith effort to resolve any
discovery dispute prior to filing a motion to compel.” (emphasis added)). Thus,
the court rejects E&I’s argument that Liberty violated Local Rule 37.1.
But even if Local Rule 37.1 did apply, Liberty’s failure to confer with E&I
about E&I’s late expert disclosure, in this context, does not rise to an
exceptional circumstance warranting reconsideration. Cf. Reasonover v. St.
Louis Cty, Mo., 447 F.3d 569, 579 (8th Cir. 2006) (“District courts have broad
discretion to set filing deadlines and enforce local rules.”); Chrysler Credit Corp.
v. Cathey, 977 F.2d 447, 449 (8th Cir. 1992) (“The application of local rules is a
matter peculiarly within the district court’s province.”) (internal quotation
omitted).
Case 4:20-cv-04033-KES Document 88 Filed 01/24/23 Page 5 of 13 PageID #: <pageID>

6
Next, E&I, for the first time, argues that “[s]ince this case will be tried to
the Court and not a jury, there is no risk of confusion of issues regarding lost
enterprise value.” See Docket 87 at 3. Although the court had yet to order the
parties try the case as a bench trial rather than jury trial (and thus it may be
the case that E&I could not have made this argument at the time it originally
litigated this issue), this argument ignores the basis of the court’s original
ruling—namely that E&I was not substantially justified in untimely filing
Raddock’s second disclosure and report on lost enterprise value, and that its
failure was not harmless. See Docket 70 (order clarifying the case will be a
bench trial on December 12, 2022); Docket 54 (E&I’s February 15, 2022,
response opposing Liberty’s motion to exclude Raddock’s second report). The
court balanced the four relevant factors and concluded the prejudice to Liberty,
among other reasons, justified exclusion of Raddock’s second report. See
Docket 60 at 23-24. Nothing about the court’s order hinged on whether there
would be a risk of confusion amongst the jury. The court rejects E&I’s
argument to the contrary.
Finally, E&I argues that it would be a manifest injustice to preclude
Raddock’s second report because E&I could potentially recover “nearly $40
million in potential damages” based on Raddock’s opinion on the lost
enterprise value. See Docket 75 at 8-9. But this potential—and significant—
amount of damages further underscores why it is puzzling that E&I failed to
timely submit Raddock’s lost enterprise opinion despite timely submitting
Raddock’s initial opinion. Raddock had access to, or could have had access to,
Case 4:20-cv-04033-KES Document 88 Filed 01/24/23 Page 6 of 13 PageID #: <pageID>

7
all the information he relied on to form his lost enterprise opinion at the time
he submitted his original report. See Docket 60 at 17. The court recognizes E&I
cannot recover additional damages it might have been able to had it timely
submitted Raddock’s second report. But E&I’s counsel is ultimately responsible
for following the Rules of Civil Procedure, and the failure to do so has potential
consequences such as exclusion of untimely expert reports.
II. 	Defense witness David Mattingly
E&I seeks the court to “either limit Mr. Mattingly to testifying as a fact
witness, or order E&I to disclose a report, signed by Mr. Mattingly, regarding
his opinions.” Docket 75 at 14. Liberty argues that it need not disclose a report
of his opinions because Liberty did not “retain[] or specially employ[]” him. See
Docket 76 at 16 (quoting Fed. R. Civ. Proc. 26(a)(2)(B)). Both parties agree that
Liberty disclosed Mattingly as an expert and that Liberty provided E&I with a
disclosure identifying David Mattingly as a construction manager for
Professional Construction Consulting Inc. (PC2).1 See Docket 75 at 14; Docket
76 at 17. Both sides further agree that Liberty has not provided E&I with a
written expert report. See Docket 75 at 14; Docket 76 at 16.
The issue here is whether Mattingly is “retained or specially employed to
provide expert testimony in the case[.]” See Fed. R. Civ. Proc. 26(a)(2)(B). If so,
Mattingly is required to provide a written report. See id. But if not, Mattingly
1 As explained more thoroughly in the court’s order on Liberty’s partial
summary judgment motion, Liberty hired PC2 to negotiate the Completion
Agreement with E&I. Docket 43 at 3; Docket 44 at 3. Mattingly negotiated with
E&I on Liberty’s behalf. Docket 52 ¶ 7; Docket 55 ¶ 7.
Case 4:20-cv-04033-KES Document 88 Filed 01/24/23 Page 7 of 13 PageID #: <pageID>

8
need not provide a written report and instead need only provide a disclosure
stating “the subject matter on which the witness is expected to present
evidence under Federal Rule of Evidence 702, 703, or 705[,]” as well as “a
summary of the facts and opinions to which the witness is expected to testify.”
Fed. R. Civ. Proc. 26(a)(2)(C); see also Vanderberg, 906 F.3d at 703-04; Crump
v. Versa Products, Inc., 400 F.3d 1104, 1110 (8th Cir. 2005).
Determining whether an expert is subject to the written report
requirement under Rule 26(a)(2)(B) depends on whether the expert’s opinion
“arises not from his enlistment as an expert, but rather, from his ground-level
involvement in the events giving rise to the litigation.” Downey v. Bob’s
Discount Furniture Holdings, Inc., 633 F.3d 1, 6 (1st Cir. 2011). Thus, so long as
the expert’s opinion is “premised on personal knowledge and observations
made in the course of [the expert’s involvement in the case], no report is
required under the terms of Rule 26(a)(2)(B).” Id. at 7. In Downey, an
exterminator was not an expert specifically retained for the purposes of
testifying in a case where the plaintiff alleged that a furniture store sold a set
infested with bedbugs because he formed his opinion about the cause of the
infestation “based on his personal knowledge and information gleaned in the
course of his initial inspection and related efforts to remediate the problem.” Id.
at 3, 8. Thus, he did not need to provide an expert report. Id. at 8; see also
Brandt Distributing Co., Inc. v. Fed. Ins. Co., 247 F.3d 822, 825-26 (8th Cir.
2001) (finding captain of fire department who investigated fire in course of his
Case 4:20-cv-04033-KES Document 88 Filed 01/24/23 Page 8 of 13 PageID #: <pageID>

9
official capacity with fire department was not “retained” and thus did not need
to disclose written report of opinion regarding whether the fire involved fraud).
A treating physician presents a common situation in which this
distinction arises. In that context, an expert treating physician need not
provide a written report to the extent that his opinions were formed during the
course of treatment. Fielden v. CSX Transp., Inc., 482 F.3d 866, 869 (6th Cir.
2007) (concluding treating physician did not need to file Rule 26(a)(2) expert
report because the physician “formed his opinions as to causation at the time
that he treated [plaintiff] and there is no evidence that [the physician] formed
his opinion at the request of [plaintiff’s] counsel.”). But if the treating physician
did not form her opinion based in the ordinary course of her treatment of the
patient and instead relied on facts made known to her by counsel, she is
“retained” and thus required to submit a written report under Rule 26(a)(2)(B).
See Goodman v. Staples The Office Superstore, LLC, 644 F.3d 817, 826 (9th Cir.
2011); see also Meyers v. Nat’l R.R. Passenger Corp., 619 F.3d 729, 734-35 (7th
Cir. 2010) (“[A] treating physician who is offered to provide expert testimony as
to the cause of the plaintiff’s injury but who did not make that determination in
the course of providing treatment, should be deemed to be one ‘retained or
specially employed to provide expert testimony in the case,’ and thus is
required to submit an expert report in accordance with Rule 26(a)(2).”).
Courts have specifically applied this distinction in breach of contract
cases—similar to the case at issue here. See, e.g., Am. Property Const. Co. v.
Sprenger Lang Found., 274 F.R.D. 1, 4 (D.C.C. 2011) (no expert report required
Case 4:20-cv-04033-KES Document 88 Filed 01/24/23 Page 9 of 13 PageID #: <pageID>

10
when contractors base opinions on their actual performance of construction
work or inspection of premises); Full Faith Church of Love W., Inc. v. Hoover
Treated Wood Prods., Inc., No. 01 Civ. 2597, 2003 WL 169015, at *2 (D.Kan.
Jan. 23, 2003) (no expert report required where general contractors’ testimony
would be based on “facts which they learned during the course of their work as
general contractors,” including the scope of the problem and the purpose and
reasonableness of repairs); Goodbys Creek, LLC v. Arch Ins. Co., No. 07 Civ.
947, 2009 WL 1139575, at *4–5 (M.D.Fla. Apr. 27, 2009) (no expert report
required of replacement contractor where testimony would be limited to
information obtained and opinions formed in his role as a contractor);
Beechgrove Redevelopment, L.L.C. v. Carter & Sons Plumbing, Heating & Air–
Conditioning, Inc., No. 07 Civ. 8446, 2009 WL 981724, at *6 (E.D.La. Apr. 9,
2009) (“hybrid fact-opinion testimony” as to factual observations and
professional analyses rendered during renovation project admissible despite
the lack of expert reports).
With these above examples in mind, the evidence indicates that Mattingly
directly engaged in the negotiations between PC2, Liberty, and E&I. See Docket
52 ¶ 7; Docket 55 ¶ 7. Mattingly’s testimony, according to Liberty’s expert
disclosure, will be about his role as a consultant and the opinions he formed as
a result of his direct participation with the VT Hanlon Substation project.
Docket 75-4 at 2. This involvement mirrors the exterminator’s involvement in
Downey, the fire captain’s involvement in Brandt, and the physician’s
involvement in Fielden. See Downey, 633 F.3d at 3, 6-7; Brandt, 247 F.3d at
Case 4:20-cv-04033-KES Document 88 Filed 01/24/23 Page 10 of 13 PageID #: <pageID>

11
825; Fielden, 482 F.3d at 869-72. The court is unaware of any evidence that
Liberty’s counsel requested Mattingly to form an opinion in this case, at least
as it relates to Mattingly’s expected testimony set forth in the two main
paragraphs in page 2 of his disclosures. See Fielden, 482 F.3d at 869. Thus, so
long as Mattingly formed his expert opinion during the course of his direct
dealings as a PC2 consultant in this case, the court finds that he is not subject
to the written report requirement under Federal Rule of Civil Procedure
26(a)(2)(B).
Mattingly’s proposed rebuttal testimony, however, is a closer call: to the
extent that Mattingly’s rebuttal testimony strays beyond the opinions that he
formed during his role as a consultant for PC2, Mattingly would be properly
considered “retained” and thus subject to the written report requirement under
Federal Rule of Civil Procedure Rule 26(a)(2)(B). For example, testimony that
relies on Mattingly having read Raddock’s expert report and testimony based
on new facts that Mattingly only learned about from reading Raddock’s expert
report would require an expert report. In that sense, he would be coming to the
case “as a stranger” by drawing an opinion “from facts supplied by others, in
preparation for trial[,]” because Mattingly of course did not know of Raddock’s
report during the course of Mattingly’s involvement in this case. See Downey,
633 F.3d at 7.
Thus, the court denies E&I’s request for Mattingly to provide an expert
report because Mattingly’s on-the-ground involvement in the case formed the
basis of his proposed testimony. The court’s ruling is premised, however, on
Case 4:20-cv-04033-KES Document 88 Filed 01/24/23 Page 11 of 13 PageID #: <pageID>

12
Liberty’s representations of his proposed expert testimony, and thus to the
extent E&I believes his expert opinion at trial exceeds the scope of his direct
participation in the facts of this case, E&I is free to renew its objection at that
time.
III. 	Discovery Dispute
Finally, E&I seeks the court “to order Liberty Mutual to supplement its
document production to respond to E&I’s Second Request for Production . . . .”
Docket 75 at 8. Motions to compel filed after discovery deadlines are generally
untimely. See Voter v. Avera Brookings Med. Clinic, 2008 WL 4372707, at *1
(D.S.D. Sept. 22, 2008).
Here, the deadline for concluding discovery was originally October 29,
2021, and the court re-opened discovery for limited purposes of deposing PC2’s
corporate representative and extended the deadline to February 15, 2022.
Docket 46. E&I filed its motion to compel on December 23, 2022. See Docket
74. Thus, even assuming E&I’s motion to compel falls within the narrow
February 15, 2022, discovery deadline rather than the October 29, 2021,
deadline, E&I’s motion to compel is over eight months past the February 15,
2022, discovery deadline. E&I provides no explanation for why it waited so long
to bring this matter to the court’s attention. The court sees none, given that
Liberty submitted its responses to E&I’s Second Set of Production requests on
July 16, 2021. See Docket 75-16 at 1, 35. 	E&I had more than sufficient time
to object after receiving Liberty’s responses on July 16, 2021. The court
exercises its broad discretion in declining to entertain E&I’s significantly late-
Case 4:20-cv-04033-KES Document 88 Filed 01/24/23 Page 12 of 13 PageID #: <pageID>

13
in-time motion to compel. See Williams v. TESCO Servs., Inc., 719 F.3d 968,
976 (8th Cir. 2013). This case is set for trial in less than a month; the court
denies any request to re-open discovery disputes this late in the case.
CONCLUSION
The court denies E&I’s motion to reconsider. The court further denies
E&I’s motions requesting Liberty to supply an expert report regarding
Mattingly’s proposed testimony as outlined in his expert disclosure or
requesting the court to limit his testimony to lay-person testimony. Finally, the
court denies E&I’s motion to compel because it is untimely. Thus, it is
ORDERED that E&I’s motion to reconsider the court’s decision in Docket
60 is DENIED;
IT IS FURTHER ORDERED that E&I’s motion requesting Liberty supply
an expert report for Mattingly’s proposed testimony as outlined in his expert
witness disclosures and E&I’s alternative motion for the court to limit
Mattingly’s testimony as solely a fact witness are both DENIED; and
IT IS FURTHER ORDERED that E&I’s motion to compel is DENIED.
Dated January 24, 2023.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
Case 4:20-cv-04033-KES Document 88 Filed 01/24/23 Page 13 of 13 PageID #: <pageID>