The U.S. District Court for the District of South Carolina recently heard a case that arose out of the construction of a pipeline running from Kiawah Island to Johns Island (“the project”). Defendant Utility, the owner of the project, entered into a contract with Plaintiff to construct the pipeline. The project consisted of using horizontal directional drilling (HDD) to bore an underground hole and then pulling pipe through the hole. During this process, the pipe got stuck in the borehole, and Plaintiff’s work was lost. As a result, Plaintiff had to drill a second borehole and install a new section of pipeline.
Plaintiff presented a claim for the lost work to Defendant to be submitted to its builder’s risk insurance carrier. Plaintiff argued that the contract required Defendant to obtain builder’s risk insurance and name Plaintiff as a loss payee. Defendant disputed this, but made the claim. Insurance coverage was the central theme of the action, and Defendant sought to exclude testimony of Plaintiff’s expert, an executive with a horizontally directionally drilling consulting firm.
The reason Defendant wanted to exclude this expert was that he was hired as a horizontal directional drilling specialist by the company conducting the coverage investigation in this dispute to investigate Plaintiff‘s workmanship. Plaintiff designated the expert as a non-retained expert. Plaintiff’s expert was deposed, and he planned to present his deposition testimony at trial.
Defendant argued that Plaintiff’s expert‘s connection to the investigator required the expert‘s exclusion. Defendant explained that Plaintiff argued, and the court explicitly held, that the insurance carrier’s denial of coverage wasn’t at issue in this case. Plaintiff then sought to introduce his expert‘s testimony about his evaluation of Plaintiff‘s work. Defendant argued that to do so, Plaintiff would have to give some context of who his expert was and the nature of his investigation—which would reveal that his investigation was connected to an insurance claim.
Defendant also noted that Plaintiff‘s retained expert would testify as to the same conclusions that Plaintiff’s HDD expert would present. Defendant argued that Plaintiff was merely seeking to bolster his expert’s testimony with the HDD expert‘s testimony—which would be needlessly cumulative. Defendant also argued that the HDD expert’s testimony would prejudice Defendant. Finally, Defendant asked that if Plaintiff’s HDD expert was allowed to testify, then it should be permitted to introduce testimony about the insurance carrier and its denial of coverage; otherwise Defendant would be prejudiced.
In response, Plaintiff argued that the probative value of Plaintiff’s HDD expert‘s testimony wasn’t substantially outweighed by any prejudice to Defendant. Plaintiff said that the expert would testify that his company had a good reputation in the industry; Plaintiff had the right people and equipment to do the job; except for exceeding the allowable safe load on the pipe, Plaintiff complied with the contract specifications; Plaintiff‘s best option was to continue to pull the pipe even though the safe allowable load was exceeded; and that the HDD expert would have done the same thing.
Plaintiff argued that this testimony was highly probative to Defendant‘s faulty workmanship defense and could be admitted without any reference to the insurance carrier. Plaintiff explained that the jury would only hear that Plaintiff’s HDD expert was hired by the investigator to be a horizontal directional drilling specialist in connection with a matter they were considering involving a job crossing under the Kiawah River. Plaintiff also noted that both parties’ experts relied on Plaintiff’s expert‘s graphical summary of EDR data in their reports. Plaintiff argued that his HDD expert‘s testimony shouldn’t be excluded on the basis that it was needlessly cumulative. Finally, Plaintiff said that Defendant hadn’t sufficiently identified how it would be prejudiced by the introduction of Plaintiff’s HDD expert‘s testimony.
Defendant then said that the prejudice stemmed from the fact that Plaintiff would be permitted to present the aspects of his HDD expert‘s testimony that were favorable to him while leaving the jury wondering who hired the expert and how he became involved in the case. With regard to the other experts’ reliance on the HDD expert‘s graph, Defendant said that those experts could independently testify about the underlying data and could create their own graphs if reliance really was an issue.
United States District Judge David C. Norton wrote in his opinion that pursuant to Rule 403 of the Federal Rules of Evidence, “[t]he court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” The judge agreed that as a general matter, Defendant wouldn’t be unfairly prejudiced by Plaintiff’s expert‘s testimony. Plaintiff’s expert‘s testimony related to Plaintiff‘s workmanship, and Defendant could cross examine the expert on these issues in the same manner that Defendant planned to do with Plaintiff‘s other expert.
Defendant also argued that Plaintiff’s HDD expert‘s testimony would confuse the issues, mislead the jury, and needlessly present cumulative evidence. However, Judge Norton wasn’t convinced that the expert‘s testimony would confuse the issues or mislead the jury. As Plaintiff argued, it could be explained to the jury that the expert was hired by investigator to be a horizontal directional drilling specialist in connection with a matter they were considering concerning work the Kiawah River. The jury didn’t need to know anything more than that, the judge said, and the explanation didn’t leave any glaring questions about the expert‘s role.
As to needlessly presenting cumulative evidence, Judge Norton opined that courts do permit multiple experts to testify as to the same conclusions when the issue is central to the case, and it can be so when the witnesses have different backgrounds and experience. However, the judge acknowledged that there can still be a valid concern for cumulative testimony when experts have the same or similar testimony.
Judge Norton noted in his opinion that the Fourth Circuit recently considered this issue in United States v. Galecki and found that the district court erred in excluding an expert based on cumulative testimony. The district court excluded an expert witness because there were two other expert witnesses who planned to testify as to the same conclusion.
The Fourth Circuit held that despite the similarity in the experts’ testimony, the testimony was not cumulative because the excluded expert was not paid by the defendant to testify. Therefore, the opposing party couldn’t impeach the expert on having a pecuniary motive for testifying. In contrast, the defendant paid its other two expert witnesses. The Fourth Circuit concluded that the excluded expert’s “inability to be impeached on that [pecuniary motive] ground made his testimony unique and particularly relevant, not cumulative.”
Judge Norton said that the Galecki decision convinced him that Plaintiff’s HDD expert‘s testimony wouldn’t be cumulative. This expert wasn’t retained by Plaintiff, so Defendant couldn’t impeach him on his pecuniary motive. Based on Galecki, Judge Norton held that this fact was enough to conclude that Plaintiff’s expert‘s testimony wasn’t cumulative, regardless of whether his opinions matched the opinions of Plaintiff‘s retained expert.
As a result, Judge Norton denied Defendant‘s motion to exclude the testimony of Plaintiff’s HDD expert and found it unnecessary to allow evidence as to the insurance carrier to provide the additional context to the expert‘s testimony.