Opinion
CAUSE NO. 3:16-CV-565 DRL-MGG
2020-03-24
CONSTRUCTORA MI CASITA, S DE R.L. DE C.V., Plaintiff, v. NIBCO, INC., Defendant.
Albert M. Belmont, PHV, III, Bryan R. Lentz, PHV, Gavin P. Lentz, PHV, Peter R. Bryant, PHV, Bochetto & Lentz PC, Philadelphia, PA, Sean T. Devenney, Drewry Simmons Vornehm LLP, Carmel, IN, for Plaintiff. Edward B. Ruff, III, Pretzel & Stouffer Chartered, Michael P. Turiello, Pretzel & Stouffer Chartered, Chicago, IL, for Defendant.
Albert M. Belmont, PHV, III, Bryan R. Lentz, PHV, Gavin P. Lentz, PHV, Peter R. Bryant, PHV, Bochetto & Lentz PC, Philadelphia, PA, Sean T. Devenney, Drewry Simmons Vornehm LLP, Carmel, IN, for Plaintiff.
Edward B. Ruff, III, Pretzel & Stouffer Chartered, Michael P. Turiello, Pretzel & Stouffer Chartered, Chicago, IL, for Defendant.
OPINION & ORDER
Damon R. Leichty, Judge, United States District Court
A real estate developer contends that crosslinked polyethylene (PEX) tubing has defects that have caused plumbing systems to fail in a new condominium resort in Mexico. Pursuing product liability and warranty claims, the developer—Constructora Mi Casita S. de R.L. de C.V.—has tendered Frank Gallagher, a civil engineer and owner's representative by trade, to testify about damages against the tubing manufacturer—NIBCO, Inc. NIBCO has moved to exclude his testimony as unreliable under Fed. R. Evid. 702 and Daubert v. Merrell Dow Pharms., Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The court now grants that motion and excludes this proposed expert testimony.
BACKGROUND
Mi Casita retained Frank Gallagher and his company, FGX Group, LLC, to conduct an onsite inspection at the La Ventana del Mar resort in San Felipe, Baja California, Mexico. After PEX tubing allegedly leaked and caused damaged throughout the finished and unfinished condominiums, Mi Casita sought an estimate of the "most current construction costs" to repair the damage. ECF 95-2 at 2. Based on repairs identified by Mi Casita's construction manager in 2014, Mr. Gallagher prepared a report and provided a conceptual estimate of the material and labor costs for these repairs. In sum, he opines that the repair cost will be $8,675,170.95. Id. at 36.
As a proposed cost-of-repair expert, Mr. Gallagher has a B.S. in civil engineering. Id. at 51. He worked for almost a decade as a project manager for various companies. Id. at 50-51. For the past decade, Mr. Gallagher has worked as an owner's representative; he assembles bid packages for construction management services and creates budgets and estimates. Id. at 49. Today he owns part of FGX—a company that provides project management oversight for owners of commercial real estate. Id. at 48; ECF 95-3 at 44. Mr. Gallagher helps clients manage their projects, budgets, schedules, and hiring. ECF 95-3 at 7-8. For about three years, he was a certified professional engineer until he allowed his license to lapse. Id. at 36. Mr. Gallagher has never been retained as an opinion witness before this case. Id. at 33-34.
In his work, Mr. Gallagher typically creates a conceptual estimate for each project. Id. at 47-48. This estimate provides his client an idea of potential cost until the owner can develop plans, procure bids, and secure a formal cost proposal. Id. The conceptual estimate does not provide a formal cost that permits work to start. Id. If an owner wants to proceed, then Mr. Gallagher assists the owner in hiring a contractor who puts together a formal cost proposal. Id. at 53-54.
For his report, Mr. Gallagher traveled to the resort and inspected certain finished and unfinished residential condominium units. ECF 95-2 at 2. While there, Mr. Gallagher met with J. Patrick Butler (developer), Guadalupe Martinez (architect and construction manager), and Ricardo Montano (construction manager). Id. at 3. Mr. Gallagher relied on a 2014 scope of work, prepared by Ms. Martinez, which lists all projected unit repairs, including to plumbing, drywall, cabinetry, and other property. ECF 95-3 at 22-23, 137-40.
Mr. Gallagher describes his professional method of preparing a conceptual estimate as follows: look at historical data, consider projects that he has worked on in the past, consider the area of the country where the work will be done, and process data through software called RS Means. Id. at 52. RS Means is a "database of costs that continually update what costs are throughout the country depending on what you're looking to estimate." Id. In this case, Mr. Gallagher did not have any past projects from which to pull historical data, so he instead used data provided by RS Means. Id. at 51-52. RS Means is commonly used in the United States construction industry. Id. at 146.
For his conceptual estimate, Mr. Gallagher assumed that Mi Casita would utilize entirely U.S. labor and materials, though the resort is located in San Felipe, Baja California, Mexico. Id. at 141, 144. Although he believes that the original development used some U.S. labor, he has no idea how much. Id. at 14-15 ("Q. So, you don't know if the original installation used one individual form the United States or all labor from the United States, right? A. I don't know."), 140 ("[Y]ou don't know what percentage of the work force was Mexico labor as opposed to US labor? A. I do not."), 144 ("A. I know at some point there was talk about some American labor being used in the original construction. I don't know what percentages or which trades or whatnot. But I made the assumption to use US rates because at least some of it was used originally.").
The project was originally constructed according to Mexican state and federal standards as well as the California (United States) code. ECF 102-4 at 47. Mr. Gallagher does not know plumbing standards for California. ECF 95-3 at 73-74. The plumbing system was designed by a California architect, Michael Woodley of the Woodley Architectural Group in Santa Ana, California, and the plumbing drawings were reviewed by the Urban Planning Department of the local Mexican municipality, Sergio Eduardo Montes, the Director De Administración Urbana Dirección De Administración. ECF 102-5 at 6-8. Mr. Montes reviewed mechanical, electrical, construction, and plumbing drawings to determine compliance with relevant city and municipal codes. Id. at 6. A construction permit from Mexican authorities then issued. Id.
Mr. Gallagher has never worked on a project in Mexico and has no knowledge of the quality or skill level of Mexican labor. ECF 95-3 at 47, 146-47. Still, Mr. Gallagher testified that the repair work could be done by Mexican labor and that its use might cut his conceptual estimate in half. Id. at 123-24, 141. When asked how he might calculate the difference between U.S. and Mexican labor costs, he said he could not recall where he obtained any data and could not speak to its accuracy. Id. at 16. He could not confirm that any labor data on wages came from a reputable or government source. Id. He relied on no articles, papers, treatises, texts, books, rules, journals or other materials in forming his opinions and no documents from the parties, other than pleadings in court and the 2014 scope of work. Id. at 19-20, 22-23. Instead he relied on RS Means, but that software has no cost data for foreign countries. Id. at 20, 52.
Mi Casita argues at one point that "there is evidence of record that the development of Mi Casita was done using a substantial amount of U.S. labor." ECF 102 at 9. Mi Casita cites no evidence for this statement. Although there appear to be no licensed plumbers in Mexico, the original project used two licensed plumbers from the United States, Chester Wood and Sam Mayberry, and then anywhere from 5-40 plumbers working for New Mexico Construction onsite. ECF 94-17 at 21, 57. Layoffs began in late 2006 causing the Mexican government and Mexican employees to sue the company and ultimately drive the business off the project because of the demands for unemployment benefits under Mexican law. Id. at 58-59.
Although not all line items in Mr. Gallagher's cost-of-repair report are this way, many itemize the total cost for repair, including both materials and labor. He seems able to identify those that reflect just labor and those that reflect a total of materials and labor, but for the latter he has not performed any calculation to tell the jury how much is labor versus material cost. Id. at 124-31, 140-41. He at times includes costs that would be improvements to the property rather than repairs. Id. at 134-35. He says a formal cost proposal would be needed to permit construction to begin. Id. at 59. His estimate assumes certain replacement of fixtures, cabinets, and other damaged property, whereas a final cost estimate would identify precisely what needed to be fixed. Id. at 125-126. A formal cost proposal would include a budget for specific subcontractors, insurance, general contracting costs, and other costs associated with the bidding process. Id. at 55.
STANDARD
Expert opinions must be reliable and helpful. Daubert v. Merrell Dow Pharms., Inc. , 509 U.S. 579, 597, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) ; Fed. R. Evid. 702. Appreciating that trial instructions tell jurors to weigh opinion testimony the same as that of ordinary fact witnesses, see, e.g., 7th Cir. Pattern Civ. Jury Instr. 1.21 (rev. 2017), an expert nonetheless enjoys considerable latitude when testifying, see Fed. R. Evid. 702 - 704, and jurors often tend to heed that testimony because of the expert's aura of authority and knowledge, United States v. Jett , 908 F.3d 252, 267 (7th Cir. 2018). So the court gatekeeps beforehand. The court decides the testimony's reliability and fitness before the jury ever hears it. Daubert , 509 U.S. at 594, 113 S.Ct. 2786. This duty extends to all proposed expert testimony. See Kumho Tire Co. v. Carmichael , 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999).
A witness may testify in the form of an expert opinion when (1) the witness is "qualified as an expert by knowledge, skill, expertise, training, or education," (2) the testimony is "based on sufficient facts or data," (3) the testimony is "the product of reliable principles and methods," and (4) the witness has "reliably applied the principles and methods to the facts of the case" in such a way that the testimony will "help the trier of fact to understand the evidence or to determine a fact in issue." Fed. R. Evid. 702. Although the analysis remains at all times flexible, Daubert , 509 U.S. at 594, 113 S.Ct. 2786, these fundamentals at the start can be restated formulaically for ease of understanding:
Opinion + Qualifications + Facts + Validation + Fit = Admissible Expert Testimony.
The proponent of expert testimony must establish its admissibility by a preponderance of the evidence. Varlen Corp. v. Liberty Mut. Ins. Co. , 924 F.3d 456, 459 (7th Cir. 2019).
An opinion witness must have credentials or experience that truly denotes the individual as an expert in the relevant field. Experts draw their truths from specialized "experience confessedly foreign in kind to [the jury's] own." Hon. Learned Hand, Historical and Practical Considerations Regarding Expert Testimony , 15 Harv. L. Rev. 40, 54 (1901). Scientific knowledge may come from professional degrees or use of the scientific method. Other knowledge may presuppose that a person has spent significant time gaining hands-on experience without need of formal education or laboratory work. However obtained, the expert's qualifications must provide a foundation for him to answer the specific question at hand. See, e.g. , Gayton v. McCoy , 593 F.3d 610, 617-18 (7th Cir. 2010) (permitting physician to opine about effects of vomiting on body but not pharmacological effects of drugs on heart); United States v. Parra , 402 F.3d 752, 758 (7th Cir. 2005) (allowing agent to opine on modus operandi of narcotics dealers based on training and experience in counter-surveillance). Knowledge can be developed in myriad ways. It just cannot be "subjective belief or unsupported speculation." Daubert , 509 U.S. at 590, 113 S.Ct. 2786. An opinion witness must next have a sound factual basis before being declared an expert. Fed. R. Evid. 702 ; Daubert , 509 U.S. at 590, 113 S.Ct. 2786. Even if eminently qualified, an expert cannot offer opinions based solely on his or her say-so (what lawyers call ipse dixit ). See Kumho Tire , 526 U.S. at 157, 119 S.Ct. 1167 ; Gen. Elec. Co. v. Joiner , 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997). Expert testimony must be based on sufficient and known facts. Daubert , 509 U.S. at 590, 113 S.Ct. 2786 ; Fed R. Evid. 703 ; see, e.g. , Wasson v. Peabody Coal Co. , 542 F.3d 1172, 1176 (7th Cir. 2008) (evidence of one sale was insufficient basis to calculate an average of sales over twenty years); Ervin v. Johnson & Johnson, Inc. , 492 F.3d 901, 904-05 (7th Cir. 2007) (excluding expert testimony because the "mere existence of a temporal relationship" was an unreliable basis to show a causal relationship between medication and symptoms).
Expert testimony must also originate from reliable principles and methods. Fed. R. Evid. 702. Scientific testimony may be validated if the theory or technique can be or has been tested, if it has been subjected to peer review and publication, if it has a known or potential error rate, and if it enjoys general acceptance in the relevant scientific community. Daubert , 509 U.S. at 593-94, 113 S.Ct. 2786. These concerns may or may not bear on technical or experience-based opinions, appreciating that the analysis remains ever nimble to meet their substance, and so long as the witness "employs in the courtroom the same level of intellectual rigor that characterizes the practice of [the] expert in the relevant field." Kumho Tire , 526 U.S. at 152, 119 S.Ct. 1167 ; accord Jenkins v. Bartlett , 487 F.3d 482, 489 (7th Cir. 2007).
Expert opinion must last fit the case. Opinions must be tied to case facts and issues. Kumho Tire , 526 U.S. at 150, 119 S.Ct. 1167. The court must determine whether an expert's "reasoning or methodology properly can be applied to the facts in issue." Daubert , 509 U.S. at 593, 113 S.Ct. 2786. The opinion must help the jury decide an issue of consequence. Expert testimony that "does not relate to any issue in the case is not relevant, and ... non-helpful." Id. at 591, 113 S.Ct. 2786. A court should exclude testimony unless it speaks, without confusing or misleading the jury, on a relevant issue that the jury must decide. See Fed. R. Evid. 403 and 702 ; see, e.g. , Hartman v. EBSCO Indus. , 758 F.3d 810, 819 (7th Cir. 2014) (excluding testimony as unhelpful because expert's opinion on alternate design did not assist the jury to decide causation); Bielskis v. Louisville Ladder, Inc. , 663 F.3d 887, 897 (7th Cir. 2011) (excluding testimony as unhelpful because parties agreed to issue). This is what is commonly called fit. See Daubert , 509 U.S. at 591, 113 S.Ct. 2786.
In short, the Federal Rules of Evidence strike a balance between two competing concerns: the apprehension for the free-for-all admission of unreliable theories that might baffle juries and a "stifling and repressive scientific orthodoxy" that might inhibit new truths or legitimate cases. Id. at 596, 113 S.Ct. 2786. While preserving that balance, the Daubert analysis is not a substitute for cross-examination, contrary and compelling evidence, thoughtful jury instructions, and other methods inherent in federal trials to challenge shaky evidence. Id. ; see also Stollings v. Ryobi Techs., Inc. , 725 F.3d 753, 766 (7th Cir. 2013).
The court need not conduct an evidentiary hearing. No party has requested one in this case. The briefing, report, exhibits, and full deposition testimony also permit the court to rule. See, e.g. , Kirstein v. Parks Corp. , 159 F.3d 1065, 1067 (7th Cir. 1998) ; Target Mkt. Pub., Inc. v. ADVO, Inc. , 136 F.3d 1139, 1143 n.3 (7th Cir. 1998).
DISCUSSION
Mr. Gallagher's proposed testimony is unreliable and unhelpful. Daubert , 509 U.S. at 597, 113 S.Ct. 2786. First, his cost-of-repair opinion lacks a foundation of sound and sufficient data. See Manpower, Inc. v. Ins. Co. of Pa. , 732 F.3d 796, 808 (7th Cir. 2013) ; Stollings , 725 F.3d at 766. This project exists in Mexico—some 120 miles into Mexico from the United States border. He admits that Mexican labor would be utilized to perform plumbing repairs. Notwithstanding that, he assumes only U.S. labor and materials based on a 2014 scope of work from Mi Casita. The difference in result is stark. He testified that Mexican labor could halve his projected cost of $8.675 million.
Even his opinion on the projected Mexican labor costs lacks a sound factual basis. When asked how to calculate the difference between U.S. and Mexican labor costs, Mr. Gallagher can't recall any source of data on Mexican labor and can't speak to its accuracy. He can't confirm that any Mexican labor data came from a reputable or government source. He readily confesses that his software (RS Means)—his sole source—contains no data for Mexican labor. "[O]pinion has a significance proportioned to the sources that sustain it." Petrogradsky Mejdunarodny Kommerchesky Bank v. Nat. City Bank , 253 N.Y. 23, 170 N.E. 479, 483 (N.Y. 1930) (Cardozo, J.). None seem to do so here. The courtroom is no place for guesswork, even if well-inspired. See Daubert , 509 U.S. at 590, 113 S.Ct. 2786 ; Rosen v. Ciba-Geigy Corp. , 78 F.3d 316, 319 (7th Cir. 1996).
Mi Casita counters that the initial development of the resort utilized a substantial amount of U.S. labor. That may well be, but neither Mi Casita nor Mr. Gallagher cites evidence of it in their respective response or cost-of-repair report. It is not the court's job to rummage for it. See United States v. Dunkel , 927 F.2d 955, 956 (7th Cir. 1991) ("judges are not like pigs, hunting for truffles"). Mi Casita has the burden to demonstrate its expert's reliability. Varlen Corp. , 924 F.3d at 459.
How "substantial" that U.S. labor segment may have been is a real doubt. After the project started in 2006, New Mexico Construction had as many as 5-40 plumbers onsite. Other than Chester Wood and Sam Mayberry, who were the only licensed plumbers from the United States, it seems the original project had a sizeable if not exclusive measure of Mexican labor otherwise because the plumbing company was sued by the Mexican government and Mexican employees after work slowed and layoffs began in late 2006—significant enough to drive the company off the project because of the financial burden of unemployment benefits unique to Mexico.
What's worse, Mi Casita offers no explanation for why that assumption—U.S. labor for a project 120 miles into Mexico—has a sound factual basis today, or even that Mr. Gallagher well considered the project's original development in 2006 to buoy his opinion in 2020. An opinion witness can make assumptions, but those assumptions need some grounding in the record or his expertise. See Tuf Racing Prods., Inc. v. American Suzuki Motor Corp. , 223 F.3d 585, 591 (7th Cir. 2000) ; In re Ready-Mixed Concrete Antitrust Litig. , 261 F.R.D. 154, 165 (S.D. Ind. 2009) (citing Elcock v. Kmart Corp. , 233 F.3d 734, 756 (3d Cir. 2000) ). That does not exist here. A damages expert's method "need not be intellectually sophisticated" but it can't "insult the intelligence." Schiller & Schmidt, Inc. v. Nordisco Corp. , 969 F.2d 410, 415 (7th Cir. 1992).
For his part, Mr. Gallagher articulates no reason why U.S. labor and materials would need to be used in Mexico today. He readily confesses that he has no idea whether the original project utilized forty U.S. plumbers or one. He offers no basis for assuming all U.S. labor or even some mix of that. It may well have been reasonable to assume a small supervisory component of U.S. labor, given that there are apparently no licensed plumbers in Mexico to meet certain U.S. tubing warranties or standards, but Mi Casita cannot belatedly manufacture a factual basis for Mr. Gallagher when he has not done his homework to support his opinions. See Clark v. Takata Corp. , 192 F.3d 750, 757 (7th Cir. 1999) ("An expert must substantiate his opinion; providing only an ultimate conclusion with no analysis is meaningless.") (internal quotations omitted). He fails that critical step of connecting known facts to his opinions. See Joiner , 522 U.S. at 146, 118 S.Ct. 512 ; Manpower , 732 F.3d at 806 ; see also Gopalratnam v. Hewlett-Packard Co. , 877 F.3d 771, 780 (7th Cir. 2017) (experts cannot rely on data that has no "quantitative or qualitative connection to the methodology employed"); DePaepe v. Gen. Motors Corp. , 141 F.3d 715, 720 (7th Cir. 1998) (experts "need analytically sound bases for their opinions").
Second, Mr. Gallagher has not followed his own method. To prepare a conceptual estimate, Mr. Gallagher testified that he would need to consider where the work would be done. That's Mexico, not the United States. He apparently gave that no due regard here or in a way that would permit the court (or jury) to assess his opinion as reliable. He assumed U.S. labor. Focusing on his methodology rather than his conclusion, as the court should, see Winters v. Fru-Con Inc. , 498 F.3d 734, 742 (7th Cir. 2007), Mr. Gallagher thus abandoned the method for preparing conceptual estimates that he admits is expected in his professional work. Location matters. He ignored it. That underscores his unreliability. See Kumho Tire , 526 U.S. at 152, 119 S.Ct. 1167 (witness must "employ[ ] in the courtroom the same level of intellectual rigor that characterizes the practice of [the] expert in the relevant field"); Gopalratnam , 877 F.3d at 780 (witness must be "as careful as he would be in his regular professional work outside his paid litigation consulting"); Fed. R. Evid. 702 (witness must "reliably appl[y] the principles and methods to the facts of the case").
It's not lost on the court that Mi Casita omits this step in his method when quoting Mr. Gallagher's deposition testimony (ECF 110 at 4).
NIBCO piles on to say Mr. Gallagher's opinion merely provides an "idea" of cost because he prepared a conceptual estimate rather than a formal cost proposal. Reasonable estimates aren't foreign to the construction industry or jury trials. For instance, federal courts have addressed numerous cases from Hurricane states in which reasonable estimates of repair cost have been permitted, unless insurance policies or other contracts have required actual cost. Damages may be sustained by reasonably certain estimates. See Jay Clutter Custom Digging v. English , 181 Ind.App. 603, 393 N.E.2d 230, 234 (Ind. Ct. App. 1979). A jury might consider a formal cost proposal more reliable in side-by-side comparison to a conceptual estimate—but that's a consideration of weight, not admissibility. See, e.g. , Lees v. Cathage College , 714 F.3d 516, 526 (7th Cir. 2013) (whether another standard would be a "preferable benchmark" goes to weight, not admissibility). Still, this isn't a reliable estimate—not because Mr. Gallagher used RS Means to generate a conceptual estimate or because he relied on a 2014 scope of work, but because he has not stuck to his profession's method and because he has not supported or validated his opinion through known data and demonstrable labor and material cost for a project in Mexico. See Lewis v. CITGO Petroleum Corp. , 561 F.3d 698, 705 (7th Cir. 2009) (a "supremely qualified expert cannot waltz into the courtroom and render opinion unless those opinions are based upon some recognized [ ] method and are reliable and relevant").
Third, while Mr. Gallagher has experience and credentials to prepare conceptual estimates, he has no expertise with projects in Mexico. This doesn't mean he couldn't use his method properly to develop a reliable estimate of cost for a project in Mexico, based on reliable known data on Mexican labor and materials. He just didn't. And he can't now substitute his guess on what that might be because he has no experience to answer that specific question. Yet, under these circumstances and without reliable data otherwise, that is what Daubert would require. See Gayton , 593 F.3d at 617-18 (expert's qualifications must provide a foundation for him to answer the specific question at hand).
Fourth, Mr. Gallagher's opinion remains unhelpful. See Daubert , 509 U.S. at 591, 113 S.Ct. 2786. It does not reliably guide the jury to answer the question it must: what the reasonable cost of repairing all plumbing at the condominium resort in Mexico might be if the plumbing universally has a defect. Perhaps his opinion might reliably serve a jury for a project in the United States, perhaps it might reliably serve a jury who reasonably must assume 100 percent U.S. labor for a repair project in Mexico (say one near the border confined to U.S. labor), but his opinion does not fit this case. Not on this record. Instead, he would introduce confusion at trial and invite the jury to guess at repair cost based on U.S. labor for this project some 120 miles into Mexico. See also Fed. R. Evid. 403 ; see, e.g. , Owens v. Auxilium Pharms., Inc. , 895 F.3d 971, 973 (7th Cir. 2018) (excluding testimony where the expert relied on an assumption not based on evidence and the testimony did not fit the facts of the case).
This concern would be exacerbated in those itemizations in which he has not done any calculation to differentiate between materials and labor—to permit the jury to know what portion of those line items need to be revised, even if he could reliably opine about Mexican labor costs.
Fifth, Mr. Gallagher has not in proper respects reliably validated his opinion. See Daubert , 509 U.S. at 593-94, 113 S.Ct. 2786. There is no need here to have published his opinion. His method appears widely accepted in the construction industry—had he followed it. An inexperienced guess at labor and material cost in Mexico makes his risk of error unavoidably high, however. He claims he consulted something for Mexican labor rates, but he can't say what or speak to its accuracy. As a potential comparison, he notes Mi Casita's cost estimate of $5.652 million in 2014, appreciating that this reflected cost for not just the plumbing system but overall construction; but he admits he never relied on it to form his opinion. This admission is a bit odd because he seems to use that 2014 figure and a historical cost index (1.13) to determine the present value of that estimate in 2020—namely $6.408 million. He confesses that he never relied on this number either; and again that's odd because he says it was a "check number." Still, as a check-and-balance, this figure represents a 30 percent differential from his opinion that the real cost is $8.675 million. That variance is not insubstantial. He offers no explanation for his inflation, or why his "check number" was unsuitably low. See, e.g. , Krik v. Exxon Mobil Corp. , 870 F.3d 669, 675 (7th Cir. 2017) (excluding an expert report because, among other defects, it failed to explain an error rate).
NIBCO challenges Mr. Gallagher's opinion in other ways, saying he just adopted Mi Casita's 2014 scope of work and that he just input numbers into the RS Means software without critical analysis. These are entirely secondary and would be subjects for cross-examination. An expert may rely on data provided by parties or counsel if the expert would reasonably and customarily rely on such data in his field. Fed. R. Evid. 703 ; see, e.g. , Tuf Racing Prods. , 223 F.3d at 591 (permitting expert to rely on financial information provided by plaintiff and assumptions by counsel); see also Daubert , 509 U.S. at 595, 113 S.Ct. 2786 ("traditional and appropriate means of attacking shaky but admissible evidence" is through the adversarial process).
Mi Casita argues that NIBCO is impermissibly attacking Mr. Gallagher's conclusion. No, not here. While the court is mindful not to permit undue scrutiny of the quality of an expert's data, see Manpower , 732 F.3d at 806 ("the soundness of the factual underpinnings of the expert's analysis and the correctness of the expert's conclusions based on that analysis are factual matters to be determined by the trier of fact"), the court must gatekeep to ensure that the witness has relied on sufficient facts and avoided fundamental analytical gaps that render an opinion unreliable. See Fed. R. Evid. 702 ; see also Stollings , 725 F.3d at 766 ( Rule 702 requires the court to determine whether expert relied on "sufficient data to employ the methodology"). Mi Casita has not met its burden in this instance.
CONCLUSION
Frank Gallagher's opinion is unreliable and unhelpful under Daubert , so it must be excluded. The court GRANTS NIBCO's motion to exclude his opinion and report (ECF 95).
SO ORDERED.