United States District Court, D. Maryland
Richard D. Bennett, United States District Judge
dispute concerns the parties' compensation for their
efforts to repair and paint various highway bridges in
Maryland. A bench trial is scheduled to begin on June 18,
2018. (ECF No. 131.) The bench trial will address the
parties' claims for unjust enrichment and the
Defendant/Counter-Plaintiff's counter-claim for
intentional misrepresentation. Now pending is the
Defendant/Counter-Plaintiff's Motion in Limine to Exclude
Plaintiff/Counter-Defendant's Expert Witnesses (ECF No.
132). This Court has reviewed the parties' submissions
and conducted a hearing on May 24, 2018. For the reasons set
forth below, the Motion in Limine (ECF No. 132) is DENIED
29, 2013, the Maryland Transportation Authority
(“MTA”) awarded the Defendant/Counter-Plaintiff,
Saffo Contractors, Inc. (“Saffo”), a contract to
repair and paint various highway bridges on I-95 and I-395.
At some point, Saffo and the Plaintiff/Counter-Defendant,
Klicos Painting Company (“Klicos”), agreed to
perform the work together, but the parties disagree as to the
nature of that agreement.
performed work on the project from approximately March 2014
through November 2014. Klicos stopped work in December 2014,
citing weather conditions, but some Klicos employees returned
to the jobsite in February or March 2015. In February 2015,
Klicos submitted an invoice to Saffo for $200, 000. According
to Saffo, Klicos promised to return workers immediately to
complete the job if the invoice was paid. Saffo paid the
invoice. In March 2015, Klicos sent another invoice to Saffo
for $345, 000, which Saffo declined to pay. Klicos then
withdrew from the project. Before Klicos abandoned the project,
Saffo paid Klicos a total of $2, 738, 600.73.
filed suit against Saffo on August 24, 2015 (ECF No. 1).
Saffo answered with counter claims on September 28, 2015 (ECF
No. 11). Klicos answered the counter-claims on October 14,
2015 (ECF No. 13), and filed an Amended Complaint on June 16,
2016 (ECF No. 35).
Discovery & Experts
filing answers, the parties engaged in discovery. Under the
Court's revised Scheduling, the deadline for expert
disclosures was May 10, 2017, with May 31, 2017 as the
supplementation deadline. (ECF No. 80.) On December 30, 2016,
Klicos served a brief expert disclosure designating Scott
Lowe, Professional Engineer (“P.E.”), and Anthony
(“Tony”) Ardito, Certified Public Accountant
(“CPA”), as expert witnesses. (Saffo Ex. 1, Pl.
Expert Disclosure.) On March 1, 2017, Klicos served a report
by its two expert witnesses. (Saffo Ex. 2, Klicos Expert
Report, ECF No. 132-2.) In the report, the experts opined as
to the amount of Saffo's alleged profits and the amount
of 50% of those profits. (Id. at 12.) On March 31,
2017, Saffo's expert, Forensic Resolutions Inc.
(“FRI”) completed its report. On April 28, 2017,
Klicos produced a rebuttal report in which the experts
criticized the methodology and opinions of Saffo's
expert. (Saffo Ex. 3, Klicos Rebuttal Report., ECF No.
8, 2017, Saffo deposed Klicos's expert
witnesses. At the conclusion of the deposition of
Tony Ardito, the CPA, Klicos's counsel (Mr. Walter)
questioned his own expert as follows:
Q. Are you prepared to render an opinion regarding the value
of the work performed by Klicos on this job?
A. I have basically looked at the amount of -- the items in
the schedule of values totaled about 5.7 million,
representing -- called cleaning and painting. So that's
-- from a schedule of values standpoint, a piece of that
represents Klicos's value of work. I did not calculate
their exact portion, but that's the starting point. 5.7
million is the value of work delivered.
Q. Okay. And you indicated that -- in your testimony a few
moments ago, that 75 percent or thereabouts of the painting
work was completed by Klicos, correct?
A. That's correct.
(Saffo Ex. 4, Ardito Dep. at 78, ECF No. 132-3.) Upon further
questioning by Saffo's counsel, Mr. Ardito then testified
Q. You would agree with me that the opinions that you just
expressed in response to Mr. Walter's questions about the
value of Klicos's services are not stated in the report
that's marked as Exhibit-2, correct?
(Id. at 80.)
Lowe, the engineer, testified: “My understanding of my
scope was to determine the profit and then the split of that
profit on the basis of my understanding of their
agreement.” (Saffo Ex. 5, Lowe Dep. at 98, ECF No.
132-5.) He went on to testify as follows.
Q. And you didn't express any opinions in this report
regarding the reasonable value of Klicos's services
performed on the project, apart from any entitlement to a
A. I think we did consider that for sure.
Q. So, in other words, assuming there was no agreement to a
50/50 split, what Klicos would be entitled to in terms of
reasonable payment for its work on the project, that's
not an opinion that you rendered in this report, is it?
A. Well, to some extent it is. I mean, I would say it this
way. I would say yes, in the sense that they would be
entitled to reimbursement for the value of their work. So the
agreement between the parties was cost and a split of
profits. The value of the work, you just wouldn't split
the profits. Klicos would be entitled to [the] value of the
work and a hundred percent of the profit on that work.
(Id. at 128.) Mr. Lowe stated that he had no opinion
as to what would be a “reasonable” profit.
(Id. at 131-32.)
April 21, 2017, Saffo moved for summary judgment. (ECF No.
76.) Klicos moved for partial summary judgment on June 30,
2017. (ECF No. 98.) On September 6, 2017, Judge Motz of this
Court granted in part and denied in part Saffo's motion
for summary judgment and granted in part and denied in part
Klicos' motion for partial summary judgment. (ECF Nos.
105, 106.) Judge Motz also noted the recovery for the
parties' unjust enrichment claims would be
“measured by ‘the actual value realized by the
defendant, ' and not the market value of the
plaintiff's services rendered.” (ECF No. 105 at 9
(citing Dolan v. McQuaide, 215 Md.App. 24, 37-38 (Md. Ct.
Spec. App. 2013)).) More specifically, “the operative
question will be whether the actual value realized by Saffo
for Klicos's work is more or less than $2, 738,
600.73.” (ECF No. ...