Allied Erecting & Dismantling Co. v. United States Steel Corp.

NOT RECOMMENDED FOR PUBLICATION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 at

402–04.

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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