Allied Erecting & Dismantling Co. v. United States Steel Corp. ( 2023 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 23a0385n.06
No. 22-3585
FILED
UNITED STATES COURT OF APPEALS Aug 18, 2023
FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk
)
ALLIED ERECTING AND DISMANTLING
)
CO., INC.,
) ON APPEAL FROM THE
Plaintiff-Appellant, ) UNITED STATES DISTRICT
) COURT FOR THE NORTHERN
v. ) DISTRICT OF OHIO
) OPINION
UNITED STATES STEEL CORPORATION, )
Defendant-Appellee. )
)
)
Before: MOORE, CLAY, and NALBANDIAN, Circuit Judges.
CLAY, J., delivered the opinion of the court in which MOORE, J., joined in full, and
NALBANDIAN, J., joined in part. NALBANDIAN, J. (pp. 23–26), delivered a separate opinion
concurring in part and dissenting in part.
CLAY, Circuit Judge. This diversity of citizenship action concerns a heavily litigated
contract dispute between Plaintiff Allied Erecting and Dismantling Company, Inc. (“Allied”) and
Defendant United States Steel Corporation (“U.S. Steel”). At this point, the parties have
participated in a three-week jury trial, two appeals, and two remands. See Allied Erecting &
Dismantling Co. v. U.S. Steel Corp., 726 F. App’x 279 (6th Cir. 2018) (“Allied I”); Allied Erecting
& Dismantling Co. v. U.S. Steel Corp., 814 F. App’x 21 (6th Cir. 2020) (“Allied II”). This appeal
concerns evidentiary rulings that the district court made on the second remand. We AFFIRM for
the reasons set forth below.
No. 22-3585, Allied Erecting & Dismantling Co., Inc. v. U.S. Steel Corp.
I. BACKGROUND
A. Factual Background
For several decades, Allied contracted with U.S. Steel to dismantle U.S. Steel’s
steelmaking facilities and salvage the resulting scrap metal. The instant dispute involves
dismantling work at U.S. Steel’s now defunct Fairless Works steelmaking facility (“Fairless”),
which is located outside Philadelphia, Pennsylvania. The “material exchange” at the heart of the
contractual dispute between Allied and U.S. Steel “is a simple one: Allied dismantles U.S. Steel’s
Fairless plant at essentially no cost, and, in return, U.S. Steel lets Allied keep and sell the scrap
metal generated by that dismantling work.” Allied II, 814 F. App’x at 23.
The Fairless plant included a “Hot End,” where raw materials were processed and melted,
and a “Cold End,” where steel slabs were rolled, treated, or processed. Allied’s work initially
concerned the Hot End, and it was governed by two contracts executed in 1992: the 1992
Specification and the 1992 Construction Contract (collectively, the “1992 Contracts”). Through
the 1992 Contracts, U.S. Steel agreed that once Allied completed asbestos removal at a facility
that U.S. Steel intended to dismantle, U.S. Steel would assign ownership of that facility. U.S.
Steel’s assignment of ownership to Allied included: (1) “[a]ll ferrous and non-ferrous scrap1
resulting from the dismantling work[;]” (2) “[a]ll ferrous and non-ferrous scrap located within each
dismantling area[;]” and (3) “[r]ailroad track located within a specific dismantling area which
exclusively serves that dismantling area.” 1992 Specification, R. 269-2, Page ID #18069–70.
According to Allied’s president, John Ramun, Allied completed all Hot End work by 1999.
1
Ferrous scrap is made of iron or steel. Non-ferrous scrap is metal that does not contain
iron or steel.
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In response to disputes that arose between U.S. Steel and Allied, the parties entered into an
agreement called the 2003 Agreement in Principle (the “2003 AIP”).2 The 2003 AIP “built upon”
the 1992 Specification. Allied II, 814 F. App’x at 23. Through the 2003 AIP, U.S. Steel agreed
that “[a]ny further dismantling work” at Fairless that U.S. Steel had “released and authorized in
writing for dismantling” would “be awarded to and performed by [Allied]” pursuant to “the same
relevant terms and conditions contained in” the 1992 Specification. 2003 AIP, R. 269-4, Page ID
#18108. Like the 1992 Specification, the 2003 AIP provided that Allied would “own all ferrous
and non-ferrous scrap generated on any projects awarded to” it. Id. at Page ID #18107. U.S. Steel
also provided Allied with a $7 million advance payment. In exchange, Allied agreed to conduct
its dismantling “at no cost to U.S. Steel (other than the Advance Payment).” Id. at Page ID #18108.
Beyond the 1992 Contracts and the 2003 AIP, Allied and U.S. Steel ultimately “entered
into several subsequent contracts, bringing the total number of contracts governing the parties’
relationship to ten, none of which entirely supersedes any other.” Allied I, 726 F. App’x at 281.
One of those contracts was a Dismantling Services Agreement dated July 15, 2004 (the “2004
DSA”).
Shortly after the parties executed the 2003 AIP, John Ramun’s brother, Mike Ramun,
visited Fairless and prepared an estimate of the tons of ferrous steel to be dismantled at Fairless’
sheet and tin facilities (“Sheet & Tin”), which were in Fairless’ Cold End.3 Mike memorialized
his estimate in handwritten notes that he later converted into a typed spreadsheet (the “Original
Estimate”).
2
The disputes that led to the 2003 AIP are not related to the instant appeal.
3
John Ramun was Allied’s president. Mike Ramun prepared the estimate. For clarity, the
Court refers to the two by their first names.
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B. Procedural History
The evidentiary issues on appeal span the initial jury trial, the two subsequent appeals, and
the second remand. For clarity, we will first provide a broad overview of the case’s procedural
history below. We will then provide a more detailed procedural history when discussing each
issue on appeal.
1. 2015 Jury trial
Allied commenced the instant diversity of citizenship action in 2012 pursuant to 28 U.S.C.
§ 1332(a). Later that year, Allied filed its operative second amended complaint. U.S. Steel
answered Allied’s second amended complaint and asserted three counterclaims for breach of
contract. Counts I through VI of Allied’s second amended complaint arise from Allied’s
dismantling work at Fairless. After Allied I and Allied II, only Counts IV and V remain of the
second amended complaint remain. However, because Counts I and III are relevant to our analysis,
we summarize Counts I, III, IV, and V below.
• Count I. Allied sought declaratory judgment under the 2003 AIP and 2004 DSA
stating: (1) that it was not obligated to perform certain work at no cost; (2) that U.S.
Steel was not permitted to assess certain “backcharges,” (3) that certain concrete
removal and backfilling work in the Fairless basements were within Allied’s scope of
work and that U.S. Steel must compensate Allied for such additional work; and (4) that
“U.S. Steel must cease and desist from continuing to perform this work and/or
misappropriating Allied’s property in connection therewith.” Second Am. Compl.,
R. 43, Page ID #543.
• Count III. Allied sought breach of contract damages under the 1992 Construction
Contract for U.S. Steel’s alleged delays in “releasing” Fairless facilities to Allied. Id.at Page ID #544–49.
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• Count IV. Allied sought compensation for the scrap value of buildings that remained
at Sheet & Tin. According to Allied, “once the asbestos removal at each facility has
been completed, U.S. Steel was contractually obligated to assign the ownership of each
facility (including all ferrous and non-ferrous scrap, all spare parts and equipment and
all railroad track located within each dismantling area) to Allied.” Id. at Page ID #549.
Allied alleged that “U.S. Steel breached its contractual obligations to Allied by
removing and/or placing on indefinite hold various facilities that were within Allied’s
scope of work.” Id. at Page ID #551.
• Count V. Allied sought the value of certain underground utility lines and railroad
tracks that it alleges remained at the Hot End and at Sheet & Tin.
Before trial, the district court granted summary judgment to U.S. Steel with respect to
Allied’s Count VI and U.S. Steel’s Counterclaim II. That order resulted in the district court
awarding U.S. Steel $11,869,04.08 in damages.
The district court then presided over a three-week jury trial on the remaining counts.
Before the case went to the jury, however, the district court determined that Allied’s Count III,
Count IV, and much of Count V were time-barred and that U.S. Steel was entitled to judgment as
a matter of law (“JMOL”) on those counts. The only portion of Count V that survived the district
court’s order concerned allegations that U.S. Steel awarded certain Hot End rail removal work to
nonparty Fox Construction Company. With respect to the remaining claims and counterclaims,
the jury issued a verdict that was largely favorable to Allied, awarding it $694,067.00 in damages.
Ultimately, totaling up the damages from the district court’s issuance of summary judgment and
JMOL, as well as the jury’s verdict, U.S. Steel obtained a net judgment of nearly $10 million.
2. Allied I Through Allied II
In Allied I, this Court reversed the district court’s determination that U.S. Steel was entitled
to JMOL on Counts IV and V. Allied I, 726 F. App’x at 285. However, because the district court
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awarded U.S. Steel JMOL solely on statute of limitations grounds, the Court noted that “[o]n
remand, the district court is free to consider or reconsider other arguments presented by U.S. Steel
that may warrant the reissuance of judgment in favor of U.S. Steel as to these counts.” Id. at 285–
86.
On remand, the district court accepted this Court’s invitation to consider other arguments
and held once more that U.S. Steel was entitled to JMOL on Counts IV and V. This time, the
district court found that U.S. Steel was entitled to JMOL for two reasons. First, it determined that
both the 1992 Specification and the 2003 AIP contained a “‘generation’ requirement,” under which
“Allied had to generate the scrap (i.e., actually perform the dismantling) in order to have the ability
to use the scrap or sell it for revenue.” Mem. Op. and Order, R. 409, Page ID #23199. The district
court concluded that “[t]he trial record is devoid of any evidence that Allied generated scrap from
Sheet & Tin” and that Allied was therefore not entitled to any of Sheet & Tin’s scrap value. Id.
Second, the district court held that U.S. Steel was entitled to JMOL for independent evidentiary
reasons; in short, the district court determined that Allied’s evidence for both counts were
“unspecific, vague, and conclusory.” Id. at Page ID #23200.
In Allied II, this Court reversed and remanded, finding that “neither conclusion offered by
the district court in support of JMOL [on remand] holds water.” Allied II, 814 F. App’x at 26. As
to the contracts, the Court determined that neither the 1992 Specification nor the 2003 AIP
“contain[ed] a clear and unambiguous ‘generation requirement.’” Id. As to the evidentiary
holding, the Court referred to “multiple trial records from which a reasonable juror could have
concluded that U.S. Steel removed ‘specific buildings’ from Allied’s scope of work, after June
2008.” Id. at 27. Moreover, the Court also observed that “given the straightforward nature of
count V (at least with respect to breach; damages are another question), it [was] not clear why
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Allied needed to submit more detailed evidence on this point than it did in order to take its claim
to a jury.” Id.
In its remand instructions, the Court “acknowledge[d] that U.S. Steel raised two alternative
grounds for affirmance in its brief.” Id. However, “because neither ground would [have permitted
the Court] to affirm the district court’s grant of JMOL in full,” the Court left “it to the district court
to resolve these issues in the first instance, within the context of a new trial.” Id.
3. Second Remand and Third Appeal
On second remand, Allied received several unfavorable evidentiary rulings that Allied
avers “effectively dismiss[ed]” portions of Counts IV and V. Appellant’s Br. at 2. In response,
Allied entered into a provisional settlement agreement with U.S. Steel, but it reserved the right to
appeal the unfavorable evidentiary rulings. See Raceway Props., Inc. v. Emprise Corp., 613 F.2d
656, 657 (6th Cir. 1980); Innovation Ventures, LLC v. Custom Nutrition Lab’ys, LLC, 912 F.3d
316, 332 (6th Cir. 2018). The district court entered judgment the next day, and Allied’s timely
appeal followed.
Allied’s appellate brief is unclear as to which orders are being appealed.4 At oral argument,
the panel inquired into this lack of clarity; Allied’s response failed to ameliorate the lack of clarity.
Ultimately, Allied appears to appeal the following:
• the district court’s denial of Allied’s motion for a status conference and expert report
schedule, and Allied’s motion to substitute expert;
• the district court’s rulings that Mike could not render any opinions or give any
testimony regarding the content of his Original Estimate;
4
Allied’s notice of appeal simply states that it appeals the district court’s entry of judgment.
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No. 22-3585, Allied Erecting & Dismantling Co., Inc. v. U.S. Steel Corp.
• the district court’s order granting U.S. Steel’s motion in limine to exclude evidence
regarding basement work at Fairless;
• the district court’s order granting U.S. Steel’s motion in limine to exclude evidence
regarding Allied’s alleged entitlement to, or damages resulting from, any Hot End
materials); and
• the district court’s denial of Allied’s motion to quantify damages for dilatory retention
of facilities or materials.
II. DISCUSSION
A. Standard of Review
The Court “review[s] a district court’s evidentiary rulings for an abuse of discretion.”
United States v. Kilpatrick, 798 F.3d 365, 378 (6th Cir. 2015). “In the context of an evidentiary
ruling, abuse of discretion exists when the reviewing court is firmly convinced that a mistake has
been made regarding admission of evidence.” Gass v. Marriott Hotel Servs., Inc., 558 F.3d 419,
426 (6th Cir. 2009) (quoting Aetna Cas. & Sur. Co. v. Leahey Constr. Co., 219 F.3d 519, 544 (6th
Cir. 2000)).
In making its evidentiary rulings, the district court implicitly applied the law-of-the-case
doctrine to deny the motions at issue. The Court reviews a district court’s application of the law-
of-the-case doctrine for abuse of discretion. Rouse v. DaimlerChrysler Corp., 300 F.3d 711, 715
(6th Cir. 2002).
B. Analysis
1. Allied’s Request for a Substitute Expert
Allied appeals the district court’s refusal to permit a substitute expert to testify in lieu of
an expert whose testimony was largely excluded at trial. The substitute expert would have testified
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regarding damages such as “the estimated weights of the ferrous and non-ferrous scrap associated
with Counts IV and V.” Pl.’s Mot. to Substitute Expert, R. 451, Page ID #23673.
Mike’s Original Estimate of the tons of ferrous steel to be dismantled at Sheet & Tin was
admitted into evidence at trial. However, at trial, Allied purported that Mike was not available as
a witness. Accordingly, Allied had John authenticate Mike’s Original Estimate. Additionally,
Allied brought in Ed Klein, who was then an Allied employee, to testify as an expert witness as
to, among other things, the reasonableness of the Original Estimate. After Klein testified, however,
the district court held that Klein’s testimony was inadmissible under Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993). The district court reasoned “that there was nothing
that [Klein] did to verify the weights per square foot or the methodology used, or even an
explanation of the methodology that was used in the original estimate or the methodology Mr.
Klein used when verifying the weights per square foot for each of the buildings.” Trial Tr., R. 280,
Page ID #20387.
On second remand, in a “Motion for Status Conference and Expert Report Schedule,”
Allied informed the district court that “Ed Klein is no longer an employee of Allied and is not
available to testify to Allied’s damage calculations for Counts IV and V.” Pl.’s Mot. for Status
Conference and Expert Report Schedule, R. 418, Page ID #23253. Accordingly, Allied averred
that it required “replacement expert witnesses to testify regarding these damage components,
including the estimated weights of the ferrous and non-ferrous scrap associated with Counts IV
and V.” Id. It further stipulated that any new expert would have to go to Fairless for a site visit.
Id. In other words, Allied requested a limited reopening of discovery. Allied contended that
allowing a replacement expert witness to testify and reopening discovery would also “satisfy” the
district court’s “prior concerns regarding Mr. Ed Klein’s foundation and/or methodology regarding
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No. 22-3585, Allied Erecting & Dismantling Co., Inc. v. U.S. Steel Corp.
the estimates for the structural ferrous (Count 4) and hot end non-ferrous (Count 5).” Id. at Page
ID #23252. Subsequently, Allied filed a motion to substitute Klein, stating that “Mr. Klein is no
longer employed by Allied, and is unwilling (and, thus unable) to offer expert testimony in the
upcoming trial in this matter.” Pl.’s Mot. to Substitute Expert, R. 451, Page ID #23669.
The district court denied both motions. The district court reasoned that although Allied II
held that Allied was entitled to a new trial on Counts IV and V, it did not hold that Allied was
entitled to call “entirely new witnesses in an effort to correct deficiencies identified both during
the initial trial and by” subsequent rulings. Mem. Op. and Order, R. 439, Page ID #23546–47.
The district court observed that in Nelson v. Tennessee Gas Pipeline Co., 243 F.3d 244 (6th Cir.
2001), “the Sixth Circuit rejected the plaintiff’s claim that, after his expert testimony was excluded
under Daubert, he should be ‘afforded a second chance to marshal other expert opinions and shore
up his case[.]’” Id. at Page ID #23547 (alteration in original) (quoting Nelson, 243 F.3d at 250).
In short, the district court held, “[t]here is nothing in Allied II to suggest that the mandate for a
‘new trial’ requires [the district court] to permit the ‘do-over’ Allied seeks. A new trial means just
that; it does not also include new discovery.” Id. The district court also highlighted the fact that
“Allied never appealed” the district court’s exclusion of Klein’s testimony. Op. and Order, R. 467,
Page ID #23876. Thus, it observed, “Allied is not now prejudiced by the Court’s denial of its
impermissible attempt to end-run that failure by designating a new expert regarding building
weights.” Id.Despite the district court’s rulings, Allied unilaterally submitted a “supplemental” expert
report prepared by Mark Gleason and Jerome Schmitt (the “Schmitt Report”). Allied represented
that it submitted the Schmitt Report pursuant to Federal Rule of Civil Procedure 26.
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The district court did not abuse its discretion when it denied Allied’s motions and when it
refused to admit the Schmitt Report. First, as the district court observed, Allied did not appeal the
district court’s initial Daubert ruling excluding Klein’s testimony. “Under the law-of-the-case
doctrine, findings made at one point in the litigation become the law of the case for subsequent
stages of that same litigation.” Rouse, 300 F.3d at 715 (citing United States v. Moored, 38 F.3d
1419, 1421 (6th Cir. 1994)). “The doctrine also bars challenges to a decision made at a previous
stage of the litigation which could have been challenged in a prior appeal, but were not.” Id. (citing
United States v. Adesida, 129 F.3d 846, 849–50 (6th Cir. 1997)). In its brief on appeal, Allied
argues that “[t]he law of the case doctrine does not bind a trial court to evidentiary rulings.”
Appellant’s Br. at 67 (emphasis omitted). But there is a difference between not being bound by
the doctrine and being prohibited from applying it. The authorities upon which Allied relies are
clear that courts have discretion to apply the law-of-the-case doctrine to evidentiary rulings. See,
e.g., United States v. Todd, 920 F.2d 399, 402–04 (6th Cir. 1990). Beyond misrepresenting those
authorities, Allied provides no reason to suggest that the district court abused said discretion by
applying the law-of-the-case doctrine.
Second, and dispositively, this Court’s precedent is clear that Klein’s purported
unavailability does not give Allied the right to a “do-over” as to the district court’s unfavorable
Daubert ruling. In Nelson, the plaintiffs argued that the district court should have “afford[ed] them
an opportunity to obtain expert testimony to remedy deficiencies in the proffered testimony before
granting summary judgment.” Nelson, 243 F.3d at 249. This Court held that the plaintiffs’
argument was “without merit,” and that the “[p]laintiffs had adequate opportunity to develop their
expert testimony, test their theories, and respond to defendants’ specific challenges to the
testimony.” Id. Thus, the Court held that “fairness does not require that a plaintiff, whose expert
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witness testimony has been found inadmissible under Daubert, be afforded a second chance to
marshal other expert opinions and shore up his case before the court may consider a defendant’s
motion for summary judgment.” Id. at 250.
The situation in this case is almost identical to Nelson. At trial, the district court found that
Klein’s testimony at trial did not meet the Daubert standard. Allied cannot get around that
rejection by purporting that Klein is unavailable. In its brief on appeal, Allied devotes considerable
argument to whether the district court’s Daubert ruling was correct. Allied had an opportunity to
make those arguments during its first appeal; it cannot make those arguments on a second remand
or third appeal. See id. at 249–50.
The Court therefore concludes that the district court did not abuse its discretion by denying
Allied’s motions requesting a substitute expert. Allied failed to appeal the district court’s Daubert
ruling excluding Klein’s testimony and the district court did not abuse its discretion by applying
the-law-of-the-case doctrine. See Rouse, 300 F.3d at 715; Todd, 920 F.2d at 402–04. Additionally,
and dispositively, Allied was not entitled to have a substitute expert cure the deficiencies in Klein’s
testimony. See Nelson, 243 F.3d at 249–50.
2. Mike’s Testimony
On second remand, Allied averred that it intended to call Mike to testify regarding his
Original Estimate. Allied purports Mike would have testified “as a fact witness, not an expert
witness, as to the estimate he did in the ordinary course of business as an owner and employee of
Allied and how Allied regularly relied on his estimates in order to conduct its business.”
Appellant’s Br. at 46. According to Allied, Mike “would have testified that he prepared the
Original Estimate as part of Allied’s standard estimating process, which, as chief estimator, [he]
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oversaw for years and had performed hundreds, if not thousands, of similar estimates.” Id. at 46–
47.
The district court held that calling Mike would be “of no help to Allied’s cause since, even
armed with an authenticated document from Mike Ramun, any new expert will have the same
problem as Klein—there is no methodology associated with [Mike’s] notes. The Daubert problem
that led to the exclusion of part of Klein’s testimony would not be cured.” Mem. Op. and Order,
R. 467, Page ID #23877. Later, at a pretrial hearing, the district court added that Mike “was never
identified as an expert witness.” Hr’g Tr., R. 549, Page ID #50969. Therefore, the district court
held, Mike would “not be able to render any opinions or give any testimony regarding . . . the
weight of the buildings.” Id. at Page ID #50983–84. On appeal, Allied (1) challenges that ruling,
and (2) argues that, in the alternative, the district court should have allowed Mike to lay the
foundation to admit his Original Estimate. Both arguments fail.
a. Lay Witness or Expert Testimony
Rule 701 provides that lay witnesses can offer “testimony in the form of an opinion” only
when that testimony is: “(a) rationally based on the witness’s perception; (b) helpful to clearly
understanding the witness’s testimony or to determining a fact in issue; and (c) not based on
scientific, technical, or other specialized knowledge within the scope of Rule 702.”
Fed. R. Evid. 701. “The party offering testimony under Rule 701 must establish that all three
requirements are satisfied.” Kilpatrick, 798 F.3d at 379 (citing United States v. Freeman, 730 F.3d
590, 595–96 (6th Cir. 2013)). “The function of lay opinion testimony is to ‘describ[e] something
that the jurors could not otherwise experience for themselves by drawing upon the witness’s
sensory and experiential observations that were made as a first-hand witness to a particular event.’”
Id. (alteration in original) (quoting Freeman, 730 F.3d at 595).
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Parties are not permitted to “‘bootstrap’ [] expert testimony in as lay witness testimony.’”
United States v. Darji, 609 F. App’x 320, 338 (6th Cir. 2015). However, the distinction between
lay witness and expert witness testimony “is far from clear in cases where, as here, a witness with
specialized or technical knowledge was also personally involved in the factual underpinnings of
the case.” United States v. White, 492 F.3d 380, 401 (6th Cir. 2007) (citations omitted). In such
cases, courts must distinguish between the witness’ lay testimony, which “results from a process
of reasoning familiar in everyday life,” and the witness’ expert testimony, which “results from a
process of reasoning which can be mastered only by specialists in the field.” Id. (quotation
omitted). To that end, Rules 701 and 702 “distinguish between lay and expert testimony, not
witnesses.” Id. at 404. Thus, “[o]ne witness may properly offer lay testimony and, at the same
time, may be precluded from putting forth expert testimony.” Id.The distinction that this Court set forth between lay witness and expert testimony in White
applies to Mike’s possible role at trial. Mike could have offered lay testimony as to some of his
experiences at Fairless. See id. at 401–04. But the issue before the Court is whether Mike’s
testimony regarding the Sheet & Tin building weights is expert testimony under Rule 701(c). We
hold that it is.
Allied all but concedes this point in its brief on appeal. Allied highlights how Mike “not
only performed the estimate for Sheet & Tin, but also performed numerous estimates for both U.S.
Steel and numerous other large companies relating to idled steel and other manufacturing
facilities.” Appellant Br. at 47. It then explains how Mike:
would have explained how he prepared the estimate, including the detailed
measurements he took, his comparison of the various Fairless buildings that he had
previously estimated and dismantled both at the Hot End and at various other U.S.
Steel facilities, and the basis for his determination of the pounds per square foot,
and the ranges he provided for the same. In short, he would have provided the
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detailed explanation of the methodology that the [d]istrict [c]ourt believed was
lacking.
Id. Such testimony would not have “result[ed] from a process of reasoning familiar in everyday
life.” White, 492 F.3d at 401 (citations omitted). Instead, it would have “result[ed] from a process
of reasoning which can be mastered only by specialists in the field.” Id. (quotation omitted).
Accordingly, the district court did not abuse its discretion in holding that Mike’s testimony had to
meet the Daubert standard. Thus, for the same reasons that the district court did not abuse its
discretion in refusing to permit Allied to provide a substitute expert, it did not abuse its discretion
in rejecting Mike’s testimony: Allied was not entitled to a do-over on the Daubert issue. See
Nelson, 243 F.3d at 249–50; Rouse, 300 F.3d at 715; Todd, 920 F.2d at 402–04.
b. The Original Estimate
Allied argues in the alternative that the district court should have allowed Mike to lay the
foundation to admit his Original Estimate. Allied’s argument on this front is two-fold. First, it
accurately points to the fact that “[t]he Original Estimate is a business record and it was admitted
into evidence [as P-126] at the 2015 trial.” Appellant’s Br. at 52 (emphasis omitted). Second, it
contends that “Rule 702, and, by extension, Rule 26(a) disclosure requirements do not apply to a
properly-admitted business record under Rule 803(6).” Id. at 53.
“Rule 803(6) of the Federal Rules of Evidence permits records of regularly conducted
business activity to be admitted into evidence if the records meet four requirements: 1) they were
‘created in the course of a regularly conducted business activity,’ 2) they were ‘kept in the regular
course of that business,’ 3) they resulted from a ‘regular practice of the business’ to create such
documents, and 4) they were ‘created by a person with knowledge of the transaction or from
information transmitted by a person with knowledge.’” United States v. Collins, 799 F.3d 554,
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582–83 (6th Cir. 2015) (quoting Yoder & Frey Auctioneers, Inc. v. EquipmentFacts, LLC, 774
F.3d 1065, 1071–72 (6th Cir. 2014)).
It appears that this Court has never expressly ruled on how to determine whether business
records containing expert opinion should be admitted into evidence. As a general matter, “Federal
Rule 803(6) specifically provides that an admissible regularly kept record may include an
‘opinion,’ which will ordinarily be that of an expert. Such opinions should be governed by the
ordinary restrictions on expert qualifications and proper subjects for expert opinions.”
2 McCormick On Evid. § 287 (8th ed. 2022) (emphasis added). However, “[c]ourts have reached
different conclusions as to whether the proponent of the record must affirmatively establish the
expert qualifications of the declarant in a business record.” Id. n.11.
The Court need not rule on this matter. Despite admitting P-126 as an exhibit, and despite
never striking or withdrawing P-126, the district court ruled at trial that it was insufficient to
calculate the building weights. On second remand, the district court emphasized that “Allied never
appealed” that evidentiary ruling. Mem. Op. and Order, R. 467, Page ID #23876. Once again,
Allied provides no argument that the district court abused its discretion in applying the law-of-the-
case doctrine, see Todd, 920 F.2d at 402–04, or in preventing Allied from benefitting from a do-
over, see Nelson, 243 F.3d at 249–50.
3. Fairless Basement
In Allied’s second amended complaint, it alleged that the “2003 AIP established an
exclusive, non-cancellable, long-term dismantling agreement under which Allied would be entitled
to perform ‘any further dismantling work’ for U.S. Steel at the Fairless [] ‘regardless of time.’”
Second Am. Compl., R. 43, Page ID #528. It further alleged that, as was consistent with the 2003
AIP’s definition of “dismantling work,” it was entitled to entitled to compensation for any
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No. 22-3585, Allied Erecting & Dismantling Co., Inc. v. U.S. Steel Corp.
“concrete removal below ‘top of floor slab’ or backfilling and grading of basements.” Id. at Page
ID #531.
At the close of the 2015 trial, the jury found “that U.S. Steel breached the 2003 AIP . . . by
hiring another contractor to perform basement work that Allied should have been compensated to
perform.” Jury Verdict Form, R. 293, Page ID #21209. “Confusingly,” Allied I, 726 F. App’x at
289, the jury also found “that Allied breached the 2003 AIP . . . by refusing to perform basement
work that it should have performed at no additional cost.” Jury Verdict Form, R. 293, Page ID
#21209. For the mutual breaches, the jury awarded Allied $694,067.00, and it awarded U.S. Steel
nothing. Id. at Page ID #21210. As this Court expressed in Allied I, “[t]he troubling part,” of this
verdict is that the jury simultaneously found “that Allied ‘should have been compensated’ for the
below-grade removal and backfilling[, but also] that Allied ‘should have performed’ such work ‘at
no additional cost.’” 726 F. App’x at 289.
Based upon the jury’s finding of mutual breach, Allied moved the district court to “craft a
declaratory judgment (1) establishing Allied’s right to perform the future basement work and to
be compensated for such work and (2) enjoining U.S. Steel from awarding such work to another
contractor.” Pl.’s Mem. in Supp. of its Request for J., R. 303, Page ID #21399. The district court
denied Allied’s motion. First, it held that it was required to consider “the jury’s fact-findings and
reasonable inferences drawn therefrom.” Op. and Order, R. 312, Page ID #21477. Second, it
determined that the jury found that both parties breached. Accordingly, the district court
determined that the jury’s verdict precluded it from entering declaratory judgment that Allied was
entitled to compensation on such work. Subsequently, because “[t]he rule in Pennsylvania and
elsewhere is that when parties to a contract each commit a material breach, the law will give relief
to neither party,” Cottman Transmission Sys., Inc. v. Dubinsky, 550 F. Supp. 133, 136 (W.D. Pa.
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No. 22-3585, Allied Erecting & Dismantling Co., Inc. v. U.S. Steel Corp.
1982), the district court reduced the damages owed to Allied to zero. See Allied I, 726 F. App’x
at 289–90. Allied appealed the district court’s order reducing the damages to zero; it did not,
however, appeal the district court’s denial of its motion for declaratory judgment. See id. at 280.
This Court affirmed the district court’s judgment regarding damages. Id.
On second remand, the district court excluded evidence concerning basement damages. As
is relevant here, the district court concluded that it had already held that Allied was not entitled to
damages regarding the basement because the jury found mutual breach. (Id.). The district court
was correct. Neither party can recover damages in the case of mutual breach. Cottman
Transmission, 550 F. Supp. at 136.
Allied attempts to get around this problem by asserting that the basement damages at issue
arise under the 1992 Specification, rather than the 2003 AIP. Thus, Allied contends, “these
separate claims involved different contractual provisions in completely separate agreements.”
Appellant’s Br. at 61. Based upon that argument, the contracts are divisible and Allied would be
able to recover damages related to the Fairless basement for Count IV. See Abbott v. Schnader,
Harrison, Segal & Lewis, LLP, 805 A.2d 547, 554 n.7 (Pa. Super. Ct. 2002) (observing that a
“non-breaching party could be relieved of performance if the provisions were not severable, but
still required to perform if they were severable.”).
Allied’s argument is unpersuasive. First, Allied pleaded that the basement work arose
under the 2003 AIP. Second, the 2003 AIP expressly incorporates all dismantling work at Fairless.
Third, the 2003 AIP expressly “supersedes and replaces Section III(B) of the April 24, 1992
Settlement Agreement[,]” with respect to “further DISMANTLING WORK.” 2003 AIP, R. 269-
4, Page ID #18108. Finally, Allied itself has argued throughout the duration that the basement
claims “were all combined.” Hr’g Tr., R. 315, Page ID #21497. Thus, as Allied’s counsel put it,
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No. 22-3585, Allied Erecting & Dismantling Co., Inc. v. U.S. Steel Corp.
“Allied always believed that a resolution of the basement claims would resolve both the past and
the future. They were the same.” Id.Allied’s argument would fail in any event. Throughout this litigation, Allied has
maintained that the basement claims “were all combined.” Id. Allied did not appeal the district
court’s holding that the jury found that Allied breached its responsibility “to perform basement
work that it should have performed at no additional cost.” Mem. Op. and Order, R. 312, Page ID
#21469; see Allied I, 726 F. App’x at 289–90. It follows, therefore, that if the basement claims
were all combined, and if Allied breached its obligations to perform basement work at no cost,
then Allied breached its obligations concerning all basement work and cannot recover basement
damages. Allied failed to appeal the determination that the jury found that Allied breached its
basement obligations, and it pleaded and argued that the basement claims were combined. Allied
therefore waived any argument to the contrary, and the district court appropriately applied the law-
of-the-case doctrine. See Rouse, 300 F.3d at 715. Accordingly, the district court did not abuse its
discretion in refusing to permit Allied to introduce evidence as to damages that it could not recover
as a matter of law.
4. New Evidence Regarding Allied’s Right to Recover the Value of Scrap and
Materials at the Hot End
At trial, John testified that Allied completed the Hot End work by 1999. Later, the district
court held, “there was no further dismantling work that was authorized and released following the
signing of the 2003 AIP as it pertains to the [H]ot [E]nd.” Trial Tr., R. 280, Page ID #20407–08.
Therefore, it concluded, “because no further dismantling work was authorized and released in the
[H]ot [E]nd area as it pertains to nonferrous materials, there cannot be any damages that flow to
Allied.” Id. Accordingly, the district court excluded evidence related to those damages. On
second remand, the district court granted U.S. Steel’s motion in limine to exclude evidence
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No. 22-3585, Allied Erecting & Dismantling Co., Inc. v. U.S. Steel Corp.
regarding Allied’s alleged entitlement to, or damages resulting from, any Hot End materials. The
district court reasoned that it already ruled, and Allied failed to appeal, that no Hot End materials
were ever “released and authorized” for Allied to dismantle after the 2003 AIP.
In the instant appeal, Allied first asserts that the district court wrongly bound itself by its
previous evidentiary rulings. In making that argument, Allied relies upon authorities that stand for
the proposition the district court has the discretion to reconsider previous evidentiary rulings and
to admit new evidence. It points to no authority, however, suggesting that a district court abuses
its discretion if it stands by its previous rulings. As the Court discusses above, whether to apply
the law-of-the-case doctrine to evidentiary rulings is a discretionary decision. Todd, 920 F.2d at402–04.
Next, Allied argues that the jury rejected U.S. Steel’s contention that no Hot End structures
were released and authorized to Allied. To support that argument, Allied points to the jury’s
determination that “U.S. Steel breached the 2003 AIP by awarding to Fox Construction [certain
Hot End] dismantling work that should have been awarded to Allied[.]” Jury Verdict Form,
R. 293, Page ID #21211 (emphasis added). Allied’s argument is misleading. The jury found that
U.S. Steel breached the 2003 AIP by awarding dismantling work to a third party. The jury’s
finding does not contradict the district court’s determination that “there was no authorization and
release [to Allied] for the Hot End after the 2003 AIP was entered into.” Hr’g Tr., R. 469, Page
ID #24043. Accordingly, the district court did not abuse its discretion in rejecting new Hot End
evidence.
5. Allied’s Motion to Quantify Damages for Dilatory Retention of Facilities or
Materials
Through Count III of its second amended complaint, Allied sought breach-of-contract
damages under the 1992 Contracts. Allied alleged that U.S. Steel delayed releasing facilities at
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No. 22-3585, Allied Erecting & Dismantling Co., Inc. v. U.S. Steel Corp.
Fairless to Allied. The district court ultimately awarded U.S. Steel JMOL as to Count III, holding
that it was time-barred. In Allied I, this Court affirmed that ruling, observing that “Allied’s second
amended complaint itself does not point to any specific, actionable instance of dilatory behavior
by U.S. Steel that happened in June 2008 or later (i.e., within four years of the complaint).” Allied
I, 726 F. App’x at 284. In a footnote, this Court held that:
[t]o the extent that U.S. Steel’s uncompensated retention of facilities or materials
(i.e., the subject of Counts IV and V) occurred within four years before Allied’s
filing its June 2012 complaint and was also dilatory, Allied may, on remand, pursue
relief for those claims on the basis of U.S. Steel’s allegedly wrongful retention of
the facilities or materials.
Id. at 284 n.2. Thus, this Court clarified that the dismissal of Count III did not affect Allied’s
Count IV and Count V claims related to retained buildings. See id. In other words, the Court
emphasized that Allied was still permitted to pursue its claims under Count IV and Count V related
to allegations that U.S. Steel “plac[ed] on indefinite hold various facilities that were within Allied’s
scope of work.” Second Am. Compl., R. 43, Page ID #551.
On second remand, Allied filed a motion in limine to quantify damages for dilatory
retention of facilities or materials. Allied contended that Allied I allowed “Allied to pursue delay
and disruption damages for dilatory retentions. There is no other interpretation . . . .” Mot. in
Lim., R. 447, Page ID #23637–38. Thus, Allied moved the court for permission “to supplement
its damage calculations accordingly by, inter alia, designating an expert to quantify its
delay/disruption damages for Count IV.” Id. at Page ID #23638. In a perplexing paragraph, Allied
insisted that it was “not asking the [district court] to reopen discovery,” but that it “would of course
make any additional damage expert available for deposition if U.S. Steel were to request such.”
Id. at Page ID #23639.
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No. 22-3585, Allied Erecting & Dismantling Co., Inc. v. U.S. Steel Corp.
The district court held that Allied would be able to present evidence concerning dilatory
behavior that allegedly occurred within the statute of limitations. But it emphasized that it would
not reopen discovery or permit the submission of an expert report. The district court asserted that
“we’re not doing a trial by ambush . . . that’s why we have discovery, right? And that’s why
everyone is deposed. That’s why we have expert reports.” Hr’g Tr., R. 469, Page ID #23987.
Thus, the district court would not allow a new expert opinion.
The district court did not abuse its discretion in refusing to reopen discovery. Allied I did
not allow Allied to revive Count III or pursue new claims. Instead, it affirmed the dismissal of
Count III and clarified that Allied was still permitted to pursue existing claims under Count IV.
Allied I, 726 F. App’x at 282–85. Nothing in Allied I mandated that the district court reopen
discovery. Whether to reopen discovery is a decision made at the district court’s discretion, and
Allied provides no authority to suggest that the district court abused its discretion by refusing to
do so.
CONCLUSION
For the reasons stated above, the district court’s judgment is AFFIRMED.
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No. 22-3585, Allied Erecting & Dismantling Co., Inc. v. U.S. Steel Corp.
NALBANDIAN, Circuit Judge, concurring in part and dissenting in part. I agree with
nearly all the majority opinion. My only disagreement is with its conclusion on the basement
damages. I don’t think the jury’s finding of mutual breach on Count I has a preclusive effect on
the remaining basement damages claims under Counts IV and V. So I think this part of the case
should go forward, and I respectfully dissent on this issue.
I.
The basement-damages claim raises one question: whether the parties’ mutual breach on
Count I eliminates Allied’s claim to basement damages on Counts IV and V. Recall that Count I
was for damages on the performance of backfill work below the “top of floor slab” in basements
under the 2003 specification. (R. 303, Allied’s Request for Judgment on Count I, p. 4, 15.) So
Allied could not recover under Count I. That’s because the jury had found that both Allied and
U.S. Steel had breached the relevant 2003 provision, and mutual breach precludes damages under
Pennsylvania law. See Allied Erecting & Dismantling Co. v. U.S. Steel Corp., 726 F. App’x 279,
290 (6th Cir. 2018).
Counts IV and V, on the other hand, are damages claims based on ownership of scrap metal
in the basements under the 1992 specification. And we ordered a new trial on Counts IV and V in
our last opinion. See Allied Erecting & Dismantling Co. v. U.S. Steel Corp., 814 F. App’x 21, 28
(6th Cir. 2020). So Allied is seeking recovery under Counts IV and V for basement scrap metal—
not for the backfill work of Count I.
The question for us is whether the patchwork of the 1992 and 2003 specifications forms a
severable agreement or a non-severable agreement. If the contract is severable, then preclusion of
damages on one claim won’t preclude damages on another. Abbott v. Schnader, Harrison, Segal &
Lewis, LLP, 805 A.2d 547, 554 n.7 (Pa. Super. Ct. 2002) (explaining that recovery is based on
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No. 22-3585, Allied Erecting & Dismantling Co., Inc. v. U.S. Steel Corp.
whether there are “separate items” in a contract (citation omitted)). But if the contract is non-
severable, mutual breach may bar recovery of damages on any claim. See id.Rewinding to the district-court docket activity on second remand, U.S. Steel filed a motion
in limine, asking the district court to exclude any evidence of damages on the scrap metal in the
basement. And in its first ruling in response to that motion, the district court said that to the extent
that Counts IV and V relied on different evidence from the evidence used for Count I, the claims
could go forward. (R. 470, Hearing, p. 57–58; see also R. 439, Order, p. 11 (“Allied sought
declaratory relief only on Count I, which specifically related to payment for concrete removal and
basement backfill. The issues in Count I have already been decided and did not encompass any
part of the two counts that remain for a new trial.”).) Allied confirmed that was the case. It said
that its Counts IV and V claims were for “scrap ownership, not concrete removal.” (R. 470,
Hearing, p. 58.) So, as far as Allied knew, it still had viable damages claims on Counts IV and V.
But in the final pretrial hearing and over Allied’s objection, the district court seemingly
reversed itself and decided that Allied was precluded from presenting evidence of damages on the
scrap in the basement based on the jury’s prior finding on Count I. On appeal, Allied again argues
that the contract is severable and that it should be allowed to present evidence on the basement
scrap.
Under Pennsylvania law, we must look at “the intent of the parties” to determine whether
a contract is severable. Jacobs v. CNG Transmission Corp., 772 A.2d 445, 452 (Pa. 2001). That
means we look at the “explicit language of the contract,” and, if there is no explicit language, we
look at the construction of the agreement—“including the nature of the consideration.” Id.; see
also id. at 451 (explaining that when “consideration is apportioned, either expressly or by
necessarily implication . . . the contract will generally be held to be severable” (citation omitted)).
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No. 22-3585, Allied Erecting & Dismantling Co., Inc. v. U.S. Steel Corp.
Here, the plain language of the 2003 agreement shows that the contract provisions do not
depend on one another:
Notwithstanding the provisions of Section I(B) above, matters and
agreements set forth herein and made a part hereof are made and undertaken
solely to compromise and to settle various claims and counterclaims and, as
such, the parties agree that this Agreement, or any part hereof or
undertakings hereunder, shall not be used, construed, or referred to for the
purpose of advancing any interpretation, argument, or position with respect
to the language, provisions, meaning, interpretation, application, or
valuation of any other agreement between the parties, including, but not
limited to, the Settlement Agreement and General Release, dated April 24,
1992, or any part thereof.
(R. 269-4, 2003 Agreement, p. 7–8.)
The 2003 agreement says that it doesn’t alter the contractual obligations of other
agreements, including the 1992 agreement specifically. This leads me to conclude that the
contract is severable under Pennsylvania law. Pa. Dep’t of Transp. v. Pace, 439 A.2d 1320,
1322 (Pa. Commw. Ct. 1982) (allowing two different suits arising out of the same contract
and explaining that “causes of action which are distinct and independent, although growing
out of the same contract, transaction or state of facts, may be sued upon separately, and
recovery of judgment for one such cause will not bar subsequent actions upon the others”);
Graham Eng’g Corp. v. Adair, No. 1:16-CV-2521, 2021 WL 9204331, at *9 (M.D. Pa. Feb.
10, 2021) (applying Pennsylvania law to determine that while the noncompete provisions
of an agreement were unenforceable, that fact “d[id] not invalidate all aspects of their
respective agreements”). On top of the plain language, the consideration for each contract
is different. Compensation for the backfill work under the 2003 agreement is not the same
as the dismantling work leading to the ownership of the scrap metal under the 1992
specification. Shields v. Hoffman, 204 A.2d 436, 438 (Pa. 1964) (“But even if the contract
did not so specify, we would conclude that the provisions of the contract are severable
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No. 22-3585, Allied Erecting & Dismantling Co., Inc. v. U.S. Steel Corp.
because the parties apportioned the consideration both as to subject matter and payment.”).
So, in my view, the mutual breach on Count I under the 2003 agreement doesn’t preclude
the introduction of evidence on the other basement damages under Counts IV and V. I
would remand for a trial on these damages based on the evidence already in the record, so
I respectfully dissent on this issue.
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