Engineering & Construction Innovations, Inc. v. Bradshaw Construction Corp.
- Eric Tostrud
- 0:20-cv-00808
- U.S. District Court · District of Minnesota
- 12
In Engineering & Construction Innovations v. Bradshaw Construction, Judge Wright upheld expert-report sanctions and limited ECI’s jury demand to claims against Travelers.
ECI cannot seek a jury trial for its claims against Bradshaw, but it may seek a jury trial for its claims against Travelers. Bradshaw must comply with the expert-related sanctions, including payment of the reasonable fees, costs, and expenses ordered by the magistrate judge, and Bergman’s reply report remains excluded.
What happened
Engineering & Construction Innovations, Inc. contracted with the City of Minneapolis for a water-main project and subcontracted the microtunneling work to Bradshaw Construction Corporation. After Bradshaw’s work failed repeatedly, ECI sued Bradshaw and Travelers Casualty & Surety Company of America, alleging contract, bond, negligence, trespass, and interference claims.
The defendants challenged sanctions involving Bradshaw’s expert reports and asked the court to strike ECI’s jury demand. They argued that ECI’s subcontract waived a jury trial for claims against both Bradshaw and Travelers. ECI agreed that it waived a jury trial for its claims against Bradshaw but disputed that the waiver applied to Travelers.
Judge Wright affirmed the magistrate judge’s decision and granted in part and denied in part the motion to strike the jury demand. ECI cannot seek a jury trial on its claims against Bradshaw, but it may seek one on its claims against Travelers.
The detailed version
- Engineering & Construction Innovations, Inc. v. Bradshaw Construction Corp. · No. 0:20-cv-00808
- Eric Tostrud
- Aug. 22, 2022
Background
ECI contracted with the City of Minneapolis to install a water main beneath the Mississippi River. ECI then subcontracted the microtunneling work to Bradshaw for $2,611,481.25. Bradshaw also agreed to obtain a performance bond, and Bradshaw and Travelers issued a bond to ECI for $2,651,532.80.
Bradshaw began work around September 30,
- Its efforts failed several times and damaged the shaft, and it had completed less than 10 percent of the tunneling distance by January
- At the City’s direction, ECI terminated Bradshaw from the project in February
- ECI later sued Bradshaw and Travelers, asserting claims for breach of contract, recovery on the bond, negligence, trespass, and tortious interference with contractual relations. The defendants asserted counterclaims.
Appeal of the Magistrate Judge’s Expert-Report Decisions
The defendants appealed United States Magistrate Judge Tony N. Leung’s April 7, 2022 decision concerning two expert reports. A district judge may set aside a magistrate judge’s decision on a nondispositive issue only if it is clearly erroneous or contrary to law. “Clearly erroneous” means that the reviewing court is firmly convinced a mistake occurred; “contrary to law” means that the decision failed to apply or misapplied relevant law.
The magistrate judge had found that Bradshaw disclosed documents relied on by its expert Joseph Egan too late and that the failure was neither substantially justified nor harmless. Instead of excluding Egan’s report, the magistrate judge allowed ECI’s expert to review the documents and supplement the report if necessary. The magistrate judge also ordered Bradshaw to pay reasonable fees, costs, and expenses connected with the disclosure violation, the motion to strike, and the expert review.
The district court affirmed that decision. It concluded that the defendants had not shown clear error or a legal mistake and had instead challenged the magistrate judge’s discretionary choice of sanction.
The magistrate judge also struck Bradshaw expert Donald Bergman’s reply report. A reply report may respond only to evidence on the same subject addressed by the opposing expert; it may not establish a party’s main case. ECI’s expert Mark Gentry prepared a damages report. The court agreed that the construction-related information in Gentry’s report was factual background for his damages analysis, not a separate construction opinion. Because Bergman’s report did not address damages and instead challenged that background information, the district court affirmed the decision to strike it.
Jury-Demand Motion
The parties agreed that ECI knowingly waived its right to a jury trial in its subcontract with Bradshaw. The dispute was whether that waiver also covered ECI’s claims against Travelers, the surety—the company that issued the performance bond.
The subcontract’s jury-waiver provision applied to disputes between ECI and Bradshaw. The performance bond incorporated the construction contract by reference, but the court emphasized the strong presumption against finding a jury waiver and the requirement that a waiver be knowing and voluntary. The court also concluded that a surety does not automatically “stand in the shoes” of its principal for purposes of a jury waiver because a jury waiver is not a defense to liability; it changes who decides the facts.
Disposition
The court granted in part and denied in part the defendants’ motion to strike ECI’s jury demand. The motion was granted as to ECI’s claims against Bradshaw Construction Corporation and denied as to ECI’s claims against Travelers Casualty & Surety Company of America. The court also affirmed Magistrate Judge Tony N. Leung’s April 7, 2022 decision.
Read the full 12-page opinion on CourtListener, the free public archive maintained by the Free Law Project.