United States District Court, D. South Dakota, Southern Division
UNITED STATES OF AMERICA, FOR THE USE AND BENEFIT OF ASH EQUIPMENT CO., INC. D/B/A AMERICAN HYDRO; AND ASH EQUIPMENT CO., INC., A MARYLAND CORPORATION; Plaintiffs,
MORRIS, INC., A SOUTH DAKOTA CORPORATION; UNITED FIRE AND CASUALTY COMPANY, AN IOWA CORPORATION; AND RED WILK CONSTRUCTION, INC., A SOUTH DAKOTA CORPORATION; Defendants.
ORDER DENYING MOTION TO EXCLUDE BY DEFENDANT RED WILK
CONSTRUCTION, INC. DOCKET NO. 149
VERONICA L. DUFFY United States Magistrate Judge.
matter is pending before the court on a complaint by
plaintiffs Ash Equipment Co, Inc. d/b/a American Hydro and
Ash Equipment Co., Inc. (hereinafter "Hydro"),
arising out of a construction project on the Fort Randall Dam
spillway at Pickstown, South Dakota. See Docket No.
1. Hydro was a second tier subcontractor which had a contract
for hydrodemolition on the project with first-tier
subcontractor Red Wilk Construction, Inc. (hereinafter
"Red Wilk"). Red Wilk in turn had a subcontract
with Morris, Inc., the general contractor on the project.
Morris had the prime contract with the United States Army
Corps of Engineers (hereinafter "the Corps") for
the entire project. Much of the project included demolition
and removal of damaged concrete and its replacement with
fresh concrete. This matter is before this magistrate judge
on the consent of the parties pursuant to 28 U.S.C. §
further factual development, the court hereby incorporates by
reference this court's order granting in part and denying
in part partial summary judgment motions by all three
parties, which order is filed this same day. Suffice it to
say, there are a multitude of factual, technical, and highly
detailed issues which will be presented to the jury for
decision in this case. The case revolves around the process
of demolishing defective concrete through the use of
subject of this order is a motion filed by Red Wilk seeking
to exclude any reference to or reliance on the International
Concrete Repair Institute, Inc.'s (ICRI) guide references
or guidelines. See Docket No. 149. Two of the ICRI
standards are incorporated into the Corps' plans and
specifications. Three of Hydro's experts (Winkler,
Edelman and Duntemann) have rendered opinions which make
reference to ICRI standards. No motions pursuant to
Daubert or any other legal bases have been made by
Red Wilk or Morris to exclude the expert testimony of these
three expert witnesses hired by Hydro. Red Wilk argues that
because Hydro's claims sound in contract, not in
negligence, the ICRI standards are irrelevant. Red Wilk also
argues that the standards may not be reliable.
resists the motion. It argues the ICRI standards are relevant
to an understanding of the contract between Hydro and Red
Wilk and that the standards are reliable. Furthermore, Hydro
characterizes Red Wilk's motion as an improper
"back-door" Daubert motion.
City of Bridgewater v. Morris, Inc., 1999 S.D. 64,
594 N.W.2d 712, 714, the city of Bridgewater hired an
engineering firm to prepare plans and specifications for a
construction project to replace portions of the city's
water distribution system. The city hired Morris to construct
the system. Id. Upon completion of the system, the
city discovered that the water lines in many areas of the
system had been buried less than six feet below ground level.
Id. It sued both the engineering firm and Morris for
breach of contract, which was tried to a jury. Id.
The jury found in favor of the city against both defendants.
appeal, Morris argued the contract itself did not specify
that the water lines were to be buried six feet deep and that
the parties could only have modified the contract in writing.
Id. at 715. Among other evidence, the city was
allowed to present evidence at trial that the prevailing
industry standard was to bury water lines six feet deep.
Id. The trial court had instructed the jury that
they could consider customs of the trade or industry
standards to be part of the construction contract unless
excluded by the terms of the contract. Id. at n.1.
If the jury found the contract terms were inconsistent with
industry standards, the court instructed the jury to follow
the contract terms. Id. The South Dakota Supreme
Court held the trial court did not err in its admission of
evidence nor in its jury instructions. Id. at 715.
Bridgewater case is directly on point here.
Admission of evidence is a procedural issue which, in federal
court is governed by the Federal Rules of Evidence. Erie
R. Co. v. Tompkins, 304 U.S. 64 (1938). But here the
issue is really substantive, not procedural: are industry
standards considered part of a construction contract? The
Bridgewater decision answers this question in the
affirmative, to the extent the industry standards do not
conflict with a contract provision. City of
Bridgewater, 594 N.W.2d at 715, 715 n.1. Red Wilk never
sets forth any contract provision it believes conflicts with
the ICRI standards. Under Bridgewater, the ICRI
standards are admissible and may be considered by the jury at
trial to the extent they do not conflict with any contract
it is hereby ORDERED that Red Wilks Motion to Exclude [Docket
No. 149] is denied.
Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993). The
Daubert decision dealt with admissibility of expert