The testimony of a software expert witness may be excluded if it is based on facts that are at variance with the evidence adduced. The United States Court of Appeals for the Sixth Circuit affirmed the decision of the U.S. District Court for the Southern District of Ohio when it excluded the testimony of the Plaintiff’s expert witness on this very ground in USA ex rel. American Systems Consulting, Inc., et al v. Mantech Advanced Systems International, et al (2015 U.S. App. LEXIS 1781).
In June, 2005, Defense Information Technology Contracting Organization (DITCO) invited proposals from technological support service providers for a software and systems engineering contract with the Defense Commissary Agency (DeCA) that would render support to the DeCA for inventory tracking. The request for proposals (RPF) necessitated each contractor to assign a qualified individual as its potential Program Manager, whose subsequent replacement would be subject to the government’s approval. However, the government neither expected nor required that the individual designated should ultimately don the hat of Program Manager, as company’s employees were free to terminate their employment at any time. American Systems Consulting Inc. (ASCI) and ManTech were amongst the six contenders who tendered their proposals. ManTech emerged victorious and ASCI instituted an action against its triumphant competitor. ASCI’s primary bone of contention was with regard to ManTech’s offer dated July 18, 2005 that named David Kendall-Sperry, a former employee as the potential Program Manager in its offer which was in violation of the False Claims Act U.S.C. § 3729 et seq. (FCA).
In February, 2006, ManTech bagged the contract since it quoted the lowest price and surpassed the others in Technical and Management Capability. ASCI’s subsequent bid protest was again turned down by the government and the contract was yet again awarded to ManTech in December, 2006. ASCI objected to this decision before the General Accountability Office (GAO), and contended that ManTech had made misrepresentations regarding Kendall-Sperry. ASCI’s ill-timed submissions were dismissed by the GAO, but DITCO subsequently reviewed ASCI’s arguments and maintained its contract with ManTech. ASCI filed a suit against ManTech.
In their motion for summary judgment, the Plaintiffs adduced a report of its expert witness. ManTech filed its response on May 28, 2013 and argued that the report was inadmissible, but the Plaintiffs failed to respond to that argument in the reply brief dated June 14, 2013. In August 2013, ManTech filed both a reply brief again arguing inadmissibility of the report, and a separate motion to exclude expert’s report. Plaintiffs did not respond. On December 11, 2013, the district court set a trial date of May 12, 2014. On February 27, 2014 it granted ManTech’s motion for summary judgment.
In arriving at its decision, the trial court observed that the alleged misrepresentations regarding Kendall-Sperry supposedly in violation of the FCA were immaterial as a matter of law. It also excluded the report of the ASCI’s expert witness on the ground that it read like a “memorandum of law” and rested on facts that contradicted the testimony of the fact witnesses. This did not go down well with the Plaintiffs since they believed that the district court had erred in granting ManTech summary judgment without first giving them an opportunity to argue that the expert witness’s report was admissible under Rule 702 of the Federal Rules of Evidence. An appeal was preferred to the United States Court of Appeals for the Sixth Circuit.
The Appellate court noted that the Plaintiffs had the opportunity but they missed it on two counts. There was nothing to preclude ManTech from arguing the irrelevance and unreliability of the expert opinion in the summary judgment stage. Near about nine months had elapsed between ManTech’s contention against the inclusion of the expert’s report and the district court’s grant of summary judgment in its favour. Since the Plaintiffs had failed to respond to ManTech’s motion, the Appellate Court rejected their contention that the district court should have afforded them the opportunity to respond to ManTech’s arguments. Holding thus, the Sixth Circuit refused to acknowledge the Plaintiffs citation to the Tenth Circuit’s decision in United States v. Nacchio, 519 F.3d 1140, 1154 (10th Cir. 2008) for the proposition that the proponent of expert testimony “must be given an opportunity to [carry its burden] before the testimony may be ruled inadmissible”.
The Plaintiffs’ rationale for not responding to ManTech’s arguments targeting the expert report was their assumption that the district court would take up the expert witness issues in motions in limine closer to trial. The raison d’être of the Plaintiffs was that they expected a hearing based on the district court’s pre-trial scheduling orders, that required the parties to file motions objecting the admissibility of expert testimony within sixty days before the trial commenced.
The Sixth Circuit concluded that the Plaintiffs had forfeited their argument and “as a reviewing court it could not consider issues that had not been litigated upon in the trial court except in exceptional circumstances” as they had failed to explain the exceptionality of their circumstances. [Cleveland Firefighters for Fair Hiring Practices v. City of Cleveland, 669 F.3d 737, 753 (6th Cir. 2012)]
In effect the Appellate Court did not find the district court guilty of imprudence in eliminating the Plaintiffs’ proposed expert testimony or in determining the same at the summary judgment stage. It upheld the reason cited by the district court for doing so since inadmissibility of expert testimony that are at odds with evidence is a recognized ground for excluding proposed testimony under Rule 702 and squarely applied to the testimony at issue. [United States v. Gordon, 493 F. App’x 617, 626-27 (6th Cir. 2012); Greenwell v. Boatwright, 184 F.3d 492, 497 (6th Cir. 1999)]
The decision of the district court was thereby affirmed.