The Court draws the material facts largely from the parties' statements of undisputed material facts in support of their summary judgment motions and the responses thereto. However, the Court may exclude or modify a proposed fact or response (1) if it is immaterial, (2) if it fails to comply with Local Rule 56.1B, (3) if the Court sustains an objection to the proposed fact, or (4) to better reflect the record. See FED. R. CIV. P. 56; LR 56.1B, NDGa. Additionally, some facts included are drawn from the Court's own review of the record. See FED. R. CIV. P. 56(c)(3).

In 2010, Georgia Power began converting its electrical generation plant at Plant McDonough in Smyrna, Georgia from coal to natural gas. Dkt. No. [117] at 2. For its natural gas turbines, Georgia Power needed strainers to remove debris from the steam cooling systems for each turbine. Id. at 2-3. It contacted Hajoca's predecessor in interest, HD Supply (hereinafter “Hajoca”), with specifications for the strainers, and Hajoca sent those requirements to various manufacturers for bids. Dkt. No. [122] ¶ 18; Dkt. No. [126] ¶ 18. On June 4, 2010, Hajoca's salesman, Stan McCravy, provided Georgia Power a quote for 12 stainless steel strainers to be manufactured by Defendant Sure Flow. Dkt. No. [123-6]; Dkt. No. [122] ¶ 19. Georgia Power accepted this quote on June 16, 2010, issuing a Purchase Order to Hajoca for the strainers. Dkt. No. [111] ¶¶ 2, 3; Dkt. No. [121] ¶¶ 2, 3; Dkt. No. [122] ¶ 21; Dkt. No. [126] ¶ 21; Dkt. No. [109-13].

The Purchase Order identifies Hajoca as the Supplier of the strainers and provides that “SUPPLIER SHALL ESTABLISH, MAINTAIN AND IMPLEMENT A QUALITY SYSTEM TO ASSURE THAT ALL MATERIALS, EQUIPMENT, AND LABOR ARE IN ACCORDANCE WITH ALL SPECIFIED TECHNICAL AND QUALITY REQUIREMENTS. SUCH SYSTEM SHALL MEET THE REQUIREMENTS SET FOR[TH] IN THE SPECIFICATIONS.” Dkt. No. [109-13] at 3; Dkt. No. [111] ¶ 4; Dkt. No. [121] ¶ 4.

Hajoca subcontracted the design and manufacturing of the strainers to Sure Flow. Dkt. No. [111] ¶ 7; Dkt. No. [121] ¶ 5. The strainers were a new design, and Sure Flow made all the detailed design decisions for the strainer system, which consisted of a Y-shaped strainer body (hereinafter “strainer housing”) and a strainer basket that fit inside the strainer housings. Dkt. No. [111] ¶¶ 12, 18; Dkt. No. [121] ¶¶ 12, 18. Sure Flow subcontracted the fabrication of the strainer baskets to Concord Screen, and sent it a drawing with the requisite diameter, size, and length. Dkt. No. [111] ¶¶ 14, 15, 28; Dkt. No. [121] ¶¶ 14, 15, 28. Sure Flow did not send Concord Screen information regarding the baskets' acceptable tolerance, operating conditions—such as differential pressure, or the end use. Dkt. No. [111] ¶ 29; Dkt. No. [121] ¶ 29. Before manufacturing the strainers, Sure Flow sent a drawing to Hajoca for final approval,[1]which was different from the drawing sent to Concord Screen. Dkt. No. [111] ¶ 15; Dkt. No. [121] ¶ 15.

*2 Hajoca's salesman, Jim Garrison, represented to Georgia Power that the strainers would be shipped to Hajoca's warehouse for inspection prior to arriving at Georgia Power. Dkt. No. [111] ¶ 16; Dkt. No. [121] ¶ 16; Dkt. No. [109-24]; Garrison Dep., Dkt. No. [109-23] at 139:15—141:18. However, Sure Flow shipped the strainers directly to Georgia Power, and Hajoca did not conduct any inspection. Dkt. No. [111] ¶ 17; Dkt. No. [121] ¶ 17. The strainers were delivered in two shipments—one in December 2010 and another in July 2011. Dkt. No. [122] ¶ 29; Dkt. No. [126] ¶ 29; Dkt. No. [123-4] at 132:16-18.

The first strainer basket was installed by Georgia Power's installation contractors in July 2011, and was put into full time use in December 2011. Dkt. No. [115-1] ¶ 21; Dkt. No. [130] ¶ 21. The strainer baskets failed in service, broke into pieces, went upstream into two turbine units and caused damage. Dkt. No. [111] ¶ 11, 33; Dkt. No. [121] ¶ 11, 33; Dkt. No. [129] at 7; Dkt. No. [137] ¶ 14. Georgia Power discovered the issue in March 2012. Dkt. No. [115-1] ¶ 22; Dkt. No. [130] ¶ 22.

Georgia Power's expert witness, Dr. Thomas Eagar, concludes that the root cause of the strainer failures was a deficient design. Dkt. No. [109-5] at 8. Specifically, Dr. Eagar notes that “the inability of the assembly to withstand the transient thermal stresses and differential pressures (well within the maximum anticipated by the manufacturer) of the operating environment led to the ultimate failure of the strainer baskets.” Id. Further, Dr. Eagar attributes the failure in part to the lack of a quality assurance program, which would have revealed problems with the design and manufacturing of the strainers. Dkt. No. [109-3] at 4.

Hajoca's expert witness, Joe Maseda, went to Plant McDonough in February 2014 to inspect the strainers and steam cooling piping system, and was informed that the strainer housings had been discarded by Georgia Power's contractors and were no longer available to be inspected, measured, or photographed. Dkt. No. [115-14] ¶ 7. Mr. Maseda concludes that without examining the strainer housings in which the failed strainer baskets had been installed, there was no way that full, complete, and accurate testing could take place to determine the root cause of the strainer basket failures. Id. ¶ 8.

Another Georgia Power expert witness, forensic accountant Jack Damico, determined that the resulting repair and replacement costs for the turbine units totaled $6,140,027, and the cost of lost power generation was $1,755,476. Dkt. No. [111] ¶¶ 34, 35; Dkt. No. [121] ¶¶ 34, 35; Dkt. No. [109-32] at 5. Without interest, Mr. Damico concludes that Georgia Power suffered total damages in the amount of $7,895,503. Dkt. No. [111] ¶ 36; Dkt. No. [121] ¶ 36; Dkt. No. [109-32] at 5.

Georgia Power filed this action in the Superior Court of Cobb County, Georgia on March 25, 2013. Dkt. No. [1-1]. Defendant Hajoca removed to this Court, and Georgia Power subsequently filed its Amended Complaint on May 17, 2013. See Dkt. No. [1]; Dkt. No. [9]. In the Amended Complaint, Georgia Power asserts claims for breach of implied warranty and negligence against Hajoca and Sure Flow, and a breach of contract/express warranty claim against Hajoca. Dkt. No. [9].

Following the close of discovery, Georgia Power moved for summary judgment as to its breach of contract claim against Hajoca, Dkt. No. [109], and Hajoca moved for summary judgment as to all claims asserted against it by Georgia Power. Dkt. No. [115]. The same day that Hajoca filed its summary judgment motion, it also moved to dismiss Georgia Power's Complaint based on spoliation, Dkt. No. [117], and moved to exclude the testimony of Georgia Power's expert, Dr. Thomas Eagar, from trial. Dkt. No. [118]. These motions are currently before the Court.

*3 After dispositive motions were filed, Georgia Power reached a settlement agreement with Sure Flow. On June 3, 2015, Georgia Power and Sure Flow filed a joint motion to dismiss with prejudice all claims between them. Dkt. No. [140]. The Court granted their motion on June 4, 2015, dismissing Sure Flow as a defendant in this action. Dkt. No. [141]. Hajoca then filed a motion for reconsideration of the Court's order dismissing Sure Flow. Dkt. No. [142]. Following Hajoca's reply in support of its motion for reconsideration, Georgia Power moved for leave to file a surreply. Dkt. No. [148]. These motions are also before the Court.

Below, the Court addresses each of the pending motions in turn.

Hajoca seeks dismissal of this action as a sanction for Georgia Power's alleged destruction of the strainer housings in which the failed strainer baskets were situated. Hajoca contends the strainer housings are critical to its defense of this case, and no lesser sanction than dismissal will suffice to prevent unfair prejudice against it. Dkt. No. [117] at 22.

The facts on which Hajoca's spoliation argument is based are as follows. Georgia Power discovered the first failed strainer basket in March 2012, and shortly thereafter found that the strainer baskets in other units were also damaged. Id. at 3. Georgia Power employee Tim Cambron recalled discussing the possibility of litigation as early as April or May 2012, but did not receive a litigation hold notice until weeks or months later. Id. at 4. Other Georgia Power employees also remember discussing litigation in 2012. Id. at 3-5. In 2013, Georgia Power's Start-Up and Commissioning Manager Ed DeMore instructed site clean-up contractors to save the strainer housings by placing them on a pallet. Id. at 3, 11. In February 2014, Hajoca's expert witness, Joe Maseda, went to Plant McDonough to inspect the strainer baskets and the steam cooling piping system, and was informed that the strainer housings had been discarded into the trash by Georgia Power's contractors. Id. at 6. The plant manager for Plant McDonough, Doug Arnette, testified that he did not know what happened to the strainer housings, but that Mr. DeMore had undertaken an investigation to locate them. Id. at 5. Mr. DeMore searched the plant site but was unable to find any of the strainer housings, and does not know whether the contractor involved in the site clean-up discarded them. Id. at 5-6.

In response, Georgia Power does not dispute that the failed strainer baskets were discovered in March 2012, and that the possibility of litigation was discussed as early as April 2012. Dkt. No. [131] at 2-3. However, Georgia Power argues that the strainer housings were welded into the piping of the steam cooling system, and could only be removed during a shutdown of the plant. Id. at 2, 8. Thus, the first time that the strainer housings could be removed from the units was during the March 2013 shutdown, when Mr. DeMore instructed the site clean-up contractor's foreman to place the strainer housings on a pallet and save them. Id. at 8. At some point during the litigation, Georgia Power discovered that it could not locate the strainer housings, so Mr. Arnette instructed Mr. DeMore to conduct a search of the plant. Id. at 4. After Mr. DeMore could not find the strainer housings, Mr. Arnette and Mr. DeMore deduced that they were inadvertently discarded by one of the site clean-up contractors. Id. at 5.

“Spoliation is the destruction or significant alteration of evidence, or the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation.” In re Delta/AirTran Baggage Fee Antitrust Litig., 770 F. Supp. 2d 1299, 1305 (N.D. Ga. 2011) (quoting Graff v. Baja Marine Corp., 310 Fed.Appx. 298, 301 (11th Cir. 2009)). With regard to the imposition of spoliation sanctions, federal law governs. Flury v. Daimler Chrysler Corp., 427 F.3d 939, 944 (11th Cir. 2005). However, the Court's determination may be informed by Georgia law. Id.

*4 Under Georgia law, the trial court “weigh[s] the degree of the spoliator's culpability against the prejudice to the opposing party” to determine whether spoliation sanctions are warranted. Bridgestone/Firestone N. Am. Tire, LLC v. Campbell, 574 S.E.2d 923, 917 (Ga. Ct. App. 2002). In balancing these interests, the court considers five factors:

Flury, 427 F.3d at 945 (citing Bridgestone/Firestone, 574 S.E.2d at 926).

In the Eleventh Circuit, a party's failure to preserve evidence rises to the level of sanctionable spoliation “only when the absence of that evidence is predicated on bad faith.” Bashir v. Amtrak, 119 F.3d 929, 931 (11th Cir. 1997) (per curiam). Thus, notwithstanding the five factors described in Flury, bad faith is a prerequisite to spoliation sanctions in federal courts in the Eleventh Circuit. In re Delta/AirTran, 770 F. Supp. 2d at 1313-14 (rejecting the notion that “the Eleventh Circuit in Flury intended to change the spoliation calculus set forth in Bashir”); Woodard v. Wal-Mart Stores East, LP, 801 F. Supp. 2d 1363, 1372 (M.D. Ga. 2011) (declining to read Flury as having removed the bad faith prerequisite for imposing spoliation sanctions); see also Mann v. Taser Int'l, Inc., 588 F.3d 1291, 1310 (11th Cir. 2009) (applying Bashir); Rives v. Lahood, 605 Fed.Appx. 815, 820 (11th Cir. 2015) (same). While a showing of malice is not required in order to find bad faith, “mere negligence in losing or destroying records is not sufficient to draw an adverse inference.” Mann, 588 F.3d at 1310 (quoting Bashir, 119 F.3d at 931).

Hajoca argues that the case should be dismissed because the five Flury factors weigh heavily in its favor. Dkt. No. [117] at 14. Georgia Power responds that any sanction is inappropriate because Hajoca cannot establish the threshold requirement of bad faith. Dkt. No. [131] at 6.

Hajoca asserts that bad faith is merely one factor that the Court determines by “weighing the degree of the spoliator's culpability against the prejudice suffered by the opposing party.” Dkt. No. [117] at 19. However, even under Flury, this approach conflates the bad faith inquiry with the broader question of whether sanctions are appropriate. See Bridgestone/Firestone, 574 S.E.2d at 927 (“[I]n determining whether sanctions for spoliation are warranted, the trial court must weigh the degree of the spoliator's culpability against the prejudice to the opposing party.”). Courts assess whether there was bad faith by looking to evidence of the spoliator's culpability, id., and whether the relevant evidence was purposely lost or destroyed.[2] In re Delta/Airtran, 770 F. Supp. 2d at 1305.

With regard to Georgia Power's culpability, Hajoca's only argument is that Georgia Power “selectively [chose] to retain the strainer baskets, but to discard the strainer [housings].” Id. at 20. To the extent Hajoca is implying that Georgia Power “selectively chose” to discard the strainer housings, this argument is unsupported by the facts. Specifically, Hajoca cites Mr. DeMore's testimony that he told contractors to put the strainer housings on a pallet and save them. Id. at 3, 11. Further, Hajoca relies on the testimony of Mr. Arnette and Mr. DeMore that efforts were made to locate the strainer housings, but that neither Georgia Power employee knew what happened to them. Id. at 5-6. From these facts and a review of the record, the Court cannot conclude that Georgia Power chose to discard the strainer housings.

*5 In its reply brief, Hajoca argues that Georgia Power engaged in bad faith by waiting weeks or months after it anticipated a claim to issue a litigation hold notice. Dkt. No. [135] at 12. However, Hajoca fails to explain how this delay in issuing a litigation hold notice in 2012 might have contributed to Georgia Power's failure to preserve the strainer housings in 2013. Further, Hajoca does not respond to Georgia Power's contention that the strainer housings were welded into the piping system, and thus could not have been removed prior to March 2013. The Court finds that the timing of Georgia Power's litigation hold letter is not relevant to the spoliation for which Hajoca complains.

Hajoca also raises a new fact in its reply brief which it contends is evidence of bad faith. Dkt. No. [135] at 13. Hajoca cites testimony of Mr. Arnette that the strainer housings were placed in the ball field area of the Plant McDonough site without a protective covering over them. Id. at 4. Based on this testimony, Hajoca argues that Georgia Power “knew that the failure of these strainer baskets was going to lead to a lawsuit ... [and] left critical evidence such as these strainer housings, to bake in the sun, to be rained on and be exposed to any other natural hazards,” which shows it was not trying to diligently avoid the destruction of key evidence. Id. at 13.

First, given that this argument was not raised in its initial motion and Georgia Power was not afforded an opportunity to respond, the Court need not consider it. See Rindfleisch v. Gentiva Health Servs., Inc., 22 F. Supp. 3d 1295, 1301 (N.D. Ga. 2014) (“[F]ederal courts do not consider arguments that are presented for the first time in a reply brief.”). Nevertheless, the Court finds this argument unconvincing. Hajoca's spoliation argument is based on the disappearance of the strainer housings, not damage to the strainer housings. Thus, whether the strainer housings were adequately protected from the elements while in Georgia Power's possession is irrelevant to whether the disappearance of the strainer housings was the result of Georgia Power's bad faith.

Further, this portion of Mr. Arnette's testimony supports Georgia Power's position that it acted in good faith. Mr. Arnette testified that Mr. DeMore saw the strainer housings in the ball field area after he instructed contractors to preserve them. Dkt. No. [135-2] at 32:2-9. This shows that Mr. DeMore verified that the contractors had followed his instruction to save the strainer housings. Based on the evidence that Georgia Power instructed its construction site clean-up contractors to preserve the strainer housings upon removal from the piping system, it verified that the strainer housings were saved, and it searched the plant for the strainer housings after they went missing, the Court cannot find that Georgia Power should be sanctioned. These facts do not rise above the level of “mere negligence in losing [evidence] ... [and are] not sufficient to draw an adverse inference.” Bashir, 119 F.3d at 931.

Because bad faith is a prerequisite to spoliation sanctions, Hajoca's Motion to Dismiss Based on Spoliation [117] is DENIED. The court notes, however, that although the absence of the strainer housings does not warrant dismissal, other issues and inferences may be raised by their disappearance, as discussed in later sections.

Hajoca moves to exclude the testimony of Georgia Power's expert, Thomas W. Eagar. Dkt. No. [118]. Hajoca argues that Dr. Eagar's opinions (1) are not based on sufficiently reliable methodology, id. at 9-16, and (2) are new opinions outside his area of expertise. Id. at 16-19.

*6 Federal Rule of Evidence 702 governs the admissibility of expert testimony. This rule provides:

FED. R. EVID. 702.

The United States Supreme Court explained the basis for this rule in Daubert. “Unlike an ordinary witness, see Rule 701, an expert is permitted wide latitude to offer opinions, including those that are not based on firsthand knowledge or observation.” Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592 (1993). But a jury may have difficulty evaluating an expert's opinion. See id. Accordingly, trial courts must act as gatekeepers to ensure that an expert witness's testimony is not only relevant, but reliable. Id. “The proponent of the testimony does not have the burden of proving that it is scientifically correct, but that by a preponderance of the evidence it is reliable.” Allison v. McGhan Med. Corp., 184 F.3d 1300, 1312 (11th Cir. 1999) (citing In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 744 (3rd Cir. 1994)). Thus, the inquiry into reliability must focus on “principles and methodology” and not the expert witness's conclusions. Daubert, 509 U.S. at 595.

Under Rule 702, the trial court must consider whether the expert witness is qualified to opine as he does, whether his testimony is reliable, and whether his testimony is helpful to the trier of fact. More specifically, “[t]rial courts must consider whether:

U.S. v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004) (citing City of Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548, 562 (11th Cir. 1998)).

The proponent of expert testimony bears the burden to show that his expert is qualified to testify competently regarding the matters he intends to address, the methodology by which the expert reached her conclusions is sufficiently reliable, and the testimony assists the trier of fact. Frazier, 387 F.3d at 1260 (quoting McCorvey v. Baxter Healthcare Corp., 298 F.3d 1253, 1257 (11th Cir. 2002)); Cook ex rel. Estate of Tessier v. Sheriff of Monroe Cty., Fla., 402 F.3d 1092, 1113-14 (11th Cir. 2005) (explaining that it is the proponent's burden to lay the foundation for admission of expert testimony).

However, “[a] district court's gatekeeper role under Daubert ‘is not intended to supplant the adversary system or the role of the jury.’ ” Maiz v. Virani, 253 F.3d 641, 665 (11th Cir. 2001) (quoting Allison, 184 F.3d at 1311); accordDaubert, 509 U.S. at 596 (“Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.”); Adams v. Lab. Corp. of Am., 760 F.3d 1322, 1334 (11th Cir. 2014) (holding that a risk of bias in an expert witness's testimony “goes to the weight of her testimony, not its admissibility”). Rather, the objective of Daubert's gatekeeping requirement “is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152 (1999); accord Frazier, 387 F.3d at 1260. The district court has “substantial discretion in deciding how to test an expert's reliability and whether the expert's relevant testimony is reliable.” United States v. Majors, 196 F.3d 1206, 1215 (11th Cir. 1999).

*7 The Eleventh Circuit has cautioned that “[m]any factors will bear on the inquiry, and [there is no] definitive checklist or test.” Maiz, 253 F.3d at 665 (quoting Daubert, 509 U.S. at 593). While Daubert and its progeny provide flexible guidelines for the admissibility of evidence under Rule 702, “expert testimony that does not meet all or most of the Daubert factors may sometimes be admissible” based on the particular circumstances of a specific case. United States v. Brown, 415 F.3d 1257, 1266-68 (11th Cir. 2005); see also United States v. Scott, 403 Fed.Appx. 392, 397 (11th Cir. 2010) (finding that the Daubert factors are only general guidelines and the trial judge has “considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable”); Quiet Tech. D C-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1341 (11th Cir. 2003) (finding that the court should consider the Daubert factors “to the extent possible” but that “these factors do not exhaust the universe of considerations that may bear on the reliability of a given expert opinion, and a federal court should consider any additional factors that may advance its Rule 702 analysis”).

Daubert sets out a list of “general observations” for determining whether expert testimony is sufficiently reliable to be admitted under Rule 702 including: (1) whether the theory in question can be and has been empirically tested; (2) whether the theory in question has been subjected to peer review and publication; (3) the theory's known or potential error rate and whether that rate is acceptable; and (4) whether the theory is generally accepted in the scientific community. 509 U.S. 579, 593-594.

The advisory committee notes for Rule 702 have collected additional factors that courts consider in assessing the reliability of expert testimony:

FED. R. EVID. advisory committee's note (2000 amends.) (internal quotation marks and citations omitted).

Dr. Eagar has been designated an expert in engineering, metallurgy, design of materials, and failure analysis. Dkt. No. [120-3] at 1. He holds a Doctoral degree in metallurgy from the Massachusetts Institute of Technology (“MIT”) and has approximately 40 years of experience as a Professor at MIT in the areas of materials science, materials engineering, engineering systems, and engineering management. Id. at 53. For his work in this case, Dr. Eagar reviewed documents and materials, conducted testing, performed analysis, and prepared an expert report. Dkt. No. [120-5] at 1-2. In his expert report and subsequent declaration, Dr. Eagar makes conclusions about the cause of the strainer basket failures. Id. at 4-5; Dkt. No. [120-3] at 20-21. Hajoca argues these opinions are unreliable and are new opinions outside the area of his expertise. See generally Dkt. No. [118].

Hajoca summarizes Dr. Eagar's expert report as concluding that “the transient differential thermal expansion of the filters and the y-strainer housing caused the filters to rupture when they could no longer expand, due to lack of space, inside the y-strainer housing.” Id. at 11. Hajoca contends that the methodology used to reach this conclusion is unreliable for five reasons: (1) Dr. Eagar assumed the strainer baskets and strainer housings were line to line at room temperature and did not consider the possibility that one of the guide rings may not have been flat and square to the pipe; (2) Dr. Eagar relied on incorrect assumptions contained in Dr. Jia Mi's Computational Fluid Dynamics (“CFD”) report; (3) Dr. Eagar did not consider the issue of defective steam attemporators and steam quality, which may have caused metal erosion; (4) Dr. Eagar did not consider the design of the piping for the cooling system; and (5) Dr. Eagar did not consider the increase in steam flow. Id. at 11-16.

*8 To support its attack on the reliability of Dr. Eagar's methodology, Hajoca relies on the affidavits of Thomas Kulaga and Joe Maseda. Id. at 9-16. Mr. Kulaga is a mechanical engineer with expertise in mechanical engineering design and analysis, fluid dynamics, and thermal structural design and analysis. Dkt. No. [120-6] ¶¶ 3-5. Mr. Maseda is also a mechanical engineer with over 20 years of experience in power plant engineering, project management, and quality control. Dkt. No. [120-2] ¶¶ 2-3. Both Mr. Kulaga and Mr. Maseda were retained through their professional association with Rimkus Engineering to provide opinions in this case. Id. ¶ 4; Dkt. No. [120-6] ¶ 6.

Mr. Kulaga opines that Dr. Eagar's conclusion is based on the assumption that the strainer baskets and strainer housings were line to line at room temperature, meaning that the internal dimensions inside the strainers between the plates were exactly the same as the length of the actual strainer. Dkt. No. [120-6] ¶ 8. Further, he contends that Dr. Eagar failed to consider the possibility that one of the guide rings may not have been flat and square to the pipe, which could have led to preferential loading on one side of the strainer basket, which could have led to a different failure shape. Id. ¶ 9. Mr. Kulaga argues that without the strainer housings, neither of these issues can be tested. Id. ¶¶ 8-9.

In response, Georgia Power argues that Dr. Eagar did not need the strainer housings to reach his conclusions. Dkt. No. [132] at 7. Dr. Eagar determined that because the end rings were broken off the failed strainer baskets, it would be impossible, even with the strainer housings, to measure or examine the fit between the strainer housings and the strainer baskets or to measure the fit of the strainer into the guide rings. Id. at 8; Dkt. No. [132-11] ¶ 7. Georgia Power contends that because Dr. Eagar had design drawings, photographs, the failed strainer baskets, heat flow analysis modeling, and deposition testimony that thermal expansion was not considered in the design, he had ample information to run Finite Element Analysis (“FEA”) and stress tests. Dkt. No. [132] at 7. Further, Georgia Power notes that Dr. Eagar compared his test results to the failures evidenced on the strainer baskets, which verified his conclusion. Id.

The Court finds that what Hajoca construes as a Daubert issue is actually a difference of opinion that can be handled by cross examination. The Court has reviewed the methodology Dr. Eagar employed and has found it to be sound. Dr. Eagar describes the information he used, the tests he conducted, and how he verified his results. Dkt. No. [120-3] 13-23. The fact that Dr. Eagar chose different assumptions and interpreted the evidence in a different way than Mr. Kulaga is not a reason to exclude him under Daubert. See Adams, 760 F.3d at 1334 (“[T]he gatekeeping function under Rule 702 ‘is not intended to supplant the adversary system or the role of the jury: vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.” (quoting United States v. Ala. Power Co., 730 F.3d 1278, 1282 (11th Cir. 2013))).

Mr. Kulaga also contends that Dr. Eagar erred in relying on the results of Dr. Jia Mi's CFD Modeling to determine the loading applications and boundary conditions in his FEA. Dkt. No. [120-6] ¶ 10. Mr. Kulaga argues that Dr. Mi incorrectly assumed that the porosity of the strainer baskets was 40%, and incorrectly assumed a uniform, well-developed flow at the inlet to the strainer housing. Id. ¶¶ 10, 12.

*9 Georgia Power responds that Dr. Eagar did not rely on Dr. Mi's CFD in his analysis. Dkt. No. [132] at 9-10. Georgia Power cites Dr. Eagar's deposition testimony where he repeatedly confirmed that “I didn't use [the CFD] in my analysis. I just said [Dr. Mi] did it.” Id. at 10 (citing Eagar Dep., Dkt. No. [132-12] 161:8-17, 229:11—230:01).

Neither Hajoca nor Mr. Kulaga provide any citation to evidence that Dr. Eagar relied on Dr. Mi's CFD, or that Dr. Mi's assumptions were incorrect. However, even assuming these allegations are supported by the evidence, this too would be an issue for cross examination because it goes to the weight and not the admissibility of Dr. Eagar's testimony. Rosenfeld v. Oceania Cruises, Inc., 654 F.3d 1190, 1193 (11th Cir. 2011) (“[I]t is not the role of the district court to make ultimate conclusions as to the persuasiveness of the proffered evidence.” (quoting Quiet Tech., 326 F.3d at 1341)).

Mr. Maseda contends that Dr. Eagar failed to address the improperly-operating steam attemporators and the steam quality, which could have caused erosion within the strainers and piping system. Dkt. No. [120-2] ¶¶ 7-8. Hajoca argues that the root cause analysis report commissioned by Georgia Power concluded that the attemporators were injecting too much water into the steam, leading to erosion of piping within the cooling system. Dkt. No. [118] at 13-14.

Georgia Power responds that Dr. Eagar did consider the issue of a leaking attemporator and steam quality by examining the strainer baskets themselves for evidence of metal erosion, and as explained in his Supplemental Report, by analyzing the process data. Dkt. No. [132] at 10-11, 13. Further, Georgia Power argues that Dr. Eagar addressed the root cause analysis in his initial Expert Report and determined that it was not reliable because there was insufficient underlying information. Id. at 11.

The record shows that Dr. Eagar did consider the possibility of metal erosion within the strainers, but reached a different conclusion than Mr. Maseda. As previously explained, Daubert is not the proper means to attack that conclusion. Adams, 760 F.3d at 1334. Instead, Hajoca will be entitled to explore this issue in cross-examination.

Mr. Maseda also contends that Dr. Eagar deviated from normal industry standards and practices by ignoring the design of the piping for the cooling system. Id. ¶ 10. Mr. Maseda alleges that Georgia Power failed to allow the proper length of piping before it reached the strainer or pressure valves, which prevents the flow from becoming fully developed and increases turbulence in that segment of piping. Id.

Georgia Power argues that Dr. Eagar specifically responded to Mr. Maseda's contention that generally there must be 10 pipe diameters to develop fully-developed flow from an inlet. Dkt. No. [132] at 13. Georgia Power cites Dr. Eagar's deposition testimony that

*10 Dkt. No. [132-12] at 152:9-22. Based on this testimony, Georgia Power contends that the operating environment for the strainer baskets was turbulent by its very nature, and Rimkus Engineering's flow model showed that in this case the flow became well-behaved in a shorter distance than the general rule of 7 to 10 pipe diameters. Dkt. No. [132] at 13.

The record shows that Dr. Eagar did consider the issue Hajoca alleges he overlooked. That Hajoca's experts and Dr. Eagar disagree as to the significance of the pipe length does not show Dr. Eagar's methods were unreliable. Again, this is an issue reserved for a jury. Adams, 760 F.3d at 1334.

Mr. Maseda also takes issue with the failure of Georgia Power or its agents to conduct any evaluation of flow, temperature, and pressure and its effect on the secondary cooling system. Id. ¶ 11. He contends that it is an inconceivable deviation from scientific standards and practices that Dr. Eagar would not address that the strainer baskets—manufactured based on certain specifications—were subjected to a considerable increase in steam flow. Id.

Georgia Power responds that this allegation is contradicted by the record, as Dr. Eagar discusses the increased steam flow on pages 4-5 of his report. Dkt. No. [132] at 13-14 (citing Dkt. No. [132-3] at 10; Dkt No. [132-4] at 1). Further, Georgia Power notes that Dr. Eagar was questioned about this issue in his deposition and explained its lack of importance due to the design specifications and the differential pressure. Id. (citing Dkt. No. [132-12] at 222:17—224:10).

Again, the record reflects Dr. Eagar's consideration of the increased steam flow. Mr. Maseda and Dr. Eagar merely disagree what effect it had, which is a difference of opinion rather than an issue of reliability. The proper means of exploring this issue is through cross-examination. Adams, 760 F.3d at 1334.

The Court finds that Dr. Eagar's testimony is sufficiently reliable. His report, affidavits, and deposition testimony demonstrate that he has tested his theories, his methodology is supported by peer-reviewed research, and his conclusions are based on sufficient underlying facts and data. See generally Dkt. No. [120-3].

Next, Hajoca contends that Dr. Eagar's declaration should be excluded because he is not an expert in contracts and his opinions were offered after the close of discovery. Dkt. No. [118] at 17-18. Hajoca notes that in Georgia Power's expert disclosures, Dr. Eagar's report mentioned Hajoca only once, and it had nothing to do with any of the purported contractual obligations of Hajoca or any industry standards.[3] Id. at 17, 18. Hajoca also argues that Dr. Eagar first opined “on what he felt Sure Flow had done wrong on the strainer baskets,” but later “changed his testimony in a ‘Declaration’... offer[ing] opinions – for the first time – as to the contractual obligations which were purportedly incumbent on Hajoca.” Id. at 5, 6.

*11 Georgia Power responds that Dr. Eagar does not opine on matters of contract in his declaration, nor did he testify on the ultimate legal question of whether Hajoca breached its contract with Georgia Power. Dkt. No. [132] at 14. Rather, Dr. Eagar's declaration focuses on the usual and customary quality assurance procedures for the manufacture of components, including new designs, which are within his area of expertise. Id. at 15. Georgia Power argues that Dr. Eagar relies on Hajoca's admission that it did nothing to implement any type of quality assurance, and finds that Hajoca's “lack of conduct, if so prescribed, was a causal factor” in the failure of the strainer baskets. Id. (emphasis added). Further, Georgia Power contends that the opinions offered in Dr. Eagar's declaration are consistent with his opinions regarding the technical causes of the strainer basket failures. Id.

The Court finds that Dr. Eagar's declaration does not offer opinions outside his area of expertise. His opinions concern quality assurance, design verification, and the failure of the strainers, which fall within his expertise in engineering, metallurgy, design of materials, and failure analysis. Dkt. No. [120-3] at 1. Although Dr. Eagar offers his opinions because Georgia Power contends that Hajoca was contractually required to perform a quality assurance program, his opinions are confined to what a quality assurance program would entail and what it would have revealed if it were required. If Hajoca had no contractual obligation to perform a quality assurance program, then the opinions offered in Dr. Eagar's declaration would then become irrelevant. However, this contingency does not render Dr. Eagar's declaration inadmissible under Daubert.

The Court also notes that Dr. Eagar has not “changed his testimony” in his declaration. Dr. Eagar's initial expert report and deposition testimony focus on his theory that the strainer baskets failed because the strainers were improperly designed. Dkt. No. [120-3]. In his declaration, Dr. Eagar opines that a quality assurance program, if performed, would have revealed the improper design which caused the failures. Dkt. No. [120-5]. These opinions are consistent.

Because the Court finds that Dr. Eagar's methodology is reliable and his opinions are within his area of expertise, Hajoca's Daubert Motion to Exclude Thomas W. Eagar [118] is DENIED.

Georgia Power moves for summary judgment with regard to its breach of contract claim. Dkt. No. [109-1] at 5-6. Hajoca's summary judgment motion appears to seek summary judgment on all claims, but fails to separately address the enumerated counts of the Amended Complaint—Breach of Contract/Express Warranty (Count I), Breach of Implied Warranty (Count II), and Negligence (Count III). See generally Dkt. No. [115]. While Hajoca vaguely mentions “any type of warranty” in conjunction with its breach of contract arguments, it fails to cite any legal authority regarding express or implied warranties. See Dkt. No. [115-2] at 2, 17, 24, 25. Similarly, Hajoca refers to Georgia Power's negligence claim in a conclusory fashion and does not provide any citation to law. Id. at 19. To the extent Hajoca seeks summary judgment on Georgia Power's claims for breach of express warranty, breach of implied warranty, and negligence, its motion is DENIED. See LR 7.1(A)(1), NDGa (“Every motion presented to the clerk for filing shall be accompanied by a memorandum of law which cites supporting authority.”). Therefore, the only claim at issue on summary judgment is Georgia Power's breach of contract claim.

Federal Rule of Civil Procedure 56 provides “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a).

*12 A factual dispute is genuine if the evidence would allow a reasonable jury to find for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is “material” if it is “a legal element of the claim under the applicable substantive law which might affect the outcome of the case.” Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997).

The moving party bears the initial burden of showing the Court, by reference to materials in the record, that there is no genuine dispute as to any material fact that should be decided at trial. Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1260 (11th Cir. 2004) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The moving party's burden is discharged merely by “ ‘showing’—that is, pointing out to the district court—that there is an absence of evidence to support [an essential element of] the nonmoving party's case.” Celotex Corp., 477 U.S. at 325. In determining whether the moving party has met this burden, the district court must view the evidence and all factual inferences in the light most favorable to the party opposing the motion. Johnson v. Clifton, 74 F.3d 1087, 1090 (11th Cir. 1996).

Once the moving party has adequately supported its motion, the non-movant then has the burden of showing that summary judgment is improper by coming forward with specific facts showing a genuine dispute. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). There is no “genuine [dispute] for trial” when the record as a whole could not lead a rational trier of fact to find for the nonmoving party. Id. (citations omitted). All reasonable doubts, however, are resolved in the favor of the non-movant. Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993).

The same standard of review applies to cross-motions for summary judgment, but the Court must determine whether either of the parties deserves judgment as a matter of law on the undisputed facts. S. Pilot Ins. Co. v. CECS, Inc., 52 F. Supp. 3d 1240, 1242-43 (N.D. Ga. 2014) (citing Am. Bankers Ins. Grp. v. United States, 408 F.3d 1328, 1331 (11th Cir. 2005)). Each motion must be considered “on its own merits, [with] all reasonable inferences [resolved] against the party whose motion is under consideration.” Id. at 1243.

Both parties have filed motions for summary judgment on the contract claim. To succeed on a breach of contract claim, a party must demonstrate (1) a breach of the contract; and (2) resulting damages to the party who has the right to complain about the breached contract. Norton v. Budget Rent A Car Sys., Inc., 705 S.E.2d 305, 306 (Ga. Ct. App. 2010).

Georgia Power argues that it establishes a breach of contract claim based on the undisputed facts that (1) the Purchase Order required Hajoca to implement a quality system, (2) Hajoca did not implement a quality system, (3) Hajoca's failure to implement a quality system resulted in the strainer system failing, and (4) the strainer system failure caused millions of dollars in damages to Georgia Power. Dkt. No. [109-1].

For purposes of the motion, Hajoca does not dispute Georgia Power's second and fourth contentions.[4] Dkt. No. [121] ¶¶ 9, 34-38. However, Hajoca argues that it is entitled to summary judgment because (1) it was merely the product seller, and (2) Georgia Power waived its right to a quality system. Dkt. No. [115-2]; Dkt. No. [123]. These arguments are effectively a challenge to Georgia Power's first assertion that Hajoca was required to implement a quality system. Hajoca also challenges Georgia Power's third contention regarding the cause of the strainer system failure, arguing that the reason for the strainer failure is unknown, and there is no evidence a quality system would have detected the reason for the failure. The Court discusses each of these arguments below.

*13 First, Hajoca argues that it cannot be liable because it was merely the product seller, and not the manufacturer. Dkt. No. [115-2] at 13; Dkt. No. [123] at 15. In support of this argument, Hajoca cites O.C.G.A. § 51-1-11.1, which relieves product sellers of liability based on the doctrine of strict liability. O.C.G.A. § 51-1-11.1(b); Dkt. No. [115-2] at 13-14; Dkt. No. [123] at 15. Hajoca argues that under Georgia law, a vendor who is not the manufacturer is generally under no obligation to test a product it purchases and sells for the purpose of discovering latent or concealed defects. Dkt. No. [115-2] at 14 (citing Holman Motor Co. v. Evans, 314 S.E.2d 453, 456 (Ga. Ct. App. 1984)); Dkt. No. [123] at 16. Relying on this law, Hajoca alleges that “as the ‘product seller’ only, it has no liability for the strainer baskets in question.” Dkt. No. [115-2] at 15-16; see also Dkt. No. [123] at 15-18.

Georgia Power responds that Hajoca's assertion that it is solely a product seller is irrelevant, as that defense applies only to claims in tort based on the doctrine of strict liability. Dkt. No. [129] at 8-9. Georgia Power contends that it has not made a strict liability claim, but a breach of contract claim, against Hajoca. Id. at 8. Georgia Power explains that the product seller defense was “intended to shield product sellers ... who merely pass along manufactured goods ‘for common and general use’ from liability for failing to inspect and uncover latent defects.” Id. at 9 (citing Buford v. Toys R Us, 458 S.E.2d 373, 375 (Ga. Ct. App. 1995) disapproved on other grounds in Wal-Mart Stores, Inc. v. Wheeler, 586 S.E.2d 83, 86 (Ga. Ct. App. 2003)). Therefore, Georgia Power argues it should not apply to a breach of contract or breach of warranty claim “where a distributor, like Hajoca, agrees to perform specific quality assurance procedure and provides an express warranty for specially fabricated goods.” Id. at 9-10.

In its reply brief, Hajoca acknowledges that Georgia Power has not asserted a strict liability claim, but argues that the product seller defense is persuasive authority as to the breach of contract claim. Dkt. No. [138] at 6-7. Hajoca contends that its role relating to the strainers is similar to the product sellers Georgia Power discusses, who merely pass along prepackaged or completed items without any alteration or testing. Id. at 7. Hajoca argues that the undisputed evidence shows it took the designs from Georgia Power and gave them directly to Sure Flow, and Sure Flow manufactured the strainers and sent them directly to Georgia Power. Id. at 7. Because it had no part in the design or manufacturing of the strainers, Hajoca argues it should not be made responsible to inspect them in a quality control program. Id.

Hajoca fails to cite any authority applying O.C.G.A. § 51-1-11.1 to relieve a product seller of liability for breach of contract. Because the plain language of the statute makes clear that the exemption for product sellers applies only to “a product liability action based in whole or in part on the doctrine of strict liability in tort,” the Court finds no basis to extend it to this claim, which is based in contract. O.C.G.A. § 51-1-11.1(b). Courts must enforce the unambiguous terms of a contract as a reflection of the parties' intent. See O.C.G.A. § 13-2-3.

The Purchase Order explicitly provides that the product seller, Hajoca, agrees to “establish, maintain, and implement a quality system to assure that all materials, equipment, and labor are in accordance with all specified technical and quality requirements.” Dkt. No. [109-13] at 3. However, Hajoca argues that it could not have breached the contract because Georgia Power waived its right to require Hajoca to provide a quality assurance program. Dkt. No. [115-2] at 2.

*14 In response, Georgia Power argues that the affirmative defense of waiver was not pled in Hajoca's Answer or addressed during discovery, therefore it should not be considered on summary judgment. Dkt. No. [128] at 3; Dkt. No. [129] at 11 n.12. Hajoca replies that it did raise the affirmative defense of waiver in its Seventeenth Defense, which incorporated by reference all affirmative defenses set forth in Federal Rule of Civil Procedure 8, which includes waiver. Dkt. No. [138] at 10; FED. R. CIV. P. 8(c)(1).

“In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense, including ... waiver.” FED. R. CIV. P. 8(c)(1) (emphasis added). “[T]he purpose of Rule 8(c) is to give the opposing party notice of the affirmative defense and a chance to rebut it.” Grant v. Preferred Research, Inc., 885 F.2d 795, 797 (11th Cir. 1989). In its Answer, Hajoca does not “affirmatively state” the affirmative defense of waiver by incorporating “all affirmative defenses set forth in Fed. R. Civ. P. 8 and/or Fed. R. Civ. P. 12.” Dkt. No. [18] at 5.

However, the Eleventh Circuit has held that where “a plaintiff receives notice of an affirmative defense by some means other than pleadings, the defendant's failure to comply with Rule 8(c) does not cause the plaintiff any prejudice.” Grant, 885 F.2d at 797. So long as there is no prejudice to the plaintiff, a court may hear evidence regarding an affirmative defense raised in a motion for summary judgment. Id. In its objection to Hajoca's waiver defense, Georgia Power does not allege that it suffers any prejudice. See Dkt. No. [128] at 3; Dkt. No. [129] at 11 n.12. In fact, Georgia Power devotes a substantial portion of its briefing responding to the merits of Hajoca's waiver defense. See Dkt. No. [128] at 11-14; Dkt. No. [129] at 10-14. Because Georgia Power has had sufficient notice and the opportunity to respond, the Court addresses Hajoca's affirmative defense of waiver on the merits.

Waiver of a breach of contract may be express or inferred from actions, conduct, or course of dealing. Kusuma v. Metametrix, Inc., 381 S.E.2d 322, 324 (Ga. Ct. App. 1989). Waiver “may result from a party's conduct showing his election between two inconsistent rights,” or “by continuing performance, demanding or urging further performance, or permitting the other party to perform and accepting or retaining benefits under the contract.” Id. “[B]ut where the only evidence of an intention to waive is what a party does or forbears to do, there is no waiver unless his acts or omissions to act are so manifestly consistent with an intent to relinquish a then-known particular right or benefit that no other reasonable explanation of his conduct is possible.” Eckerd Corp. v. Alterman Props., Ltd., 589 S.E.2d 660, 664 (Ga. Ct. App. 2003).

Hajoca argues that Georgia Power waived its right to a quality assurance program when it installed the strainers without checking to make sure they met the requirements set forth in the purchase order and without insisting upon the implementation of a quality assurance program. Dkt. No. [115-2] at 19, 21; Dkt. No. [123] at 21.[5] Hajoca contends that the strainer baskets were in Georgia Power's possession for about seven months before they were installed, and during that time Georgia Power could have, but did not, ask Hajoca to come and inspect the strainer baskets, have its own engineers inspect the strainers, or hire outside engineers to inspect the strainers. Dkt. No. [115-2] at 20.

*15 In support of its first waiver argument—that Georgia Power did not ask Hajoca to inspect the strainer baskets—Hajoca relies on the testimony of two of its salesmen. Hajoca alleges that Stan McCravy testified that “if Hajoca was supposed to have provided such a program, Georgia Power would have been all over them in making them perform this task.” Id. at 22-23 (citing McCravy Dep., Dkt. No. [115-11] at 39). Hajoca also contends that its other salesman, Jim Garrison, testified that Georgia Power's supply chain contact, Phil Gambrell, “never called him or anyone else to say that Hajoca needed to implement a quality assurance program,” but that Mr. Gambrell expressed his appreciation for Mr. Garrison's work. Id. at 23 (citing Garrison Dep., Dkt. No. [115-9] at 131-33, 165-66).

Georgia Power responds that the testimony of Stan McCravy and Jim Garrison does not support Hajoca's waiver defense. Dkt. No. [129] at 12.

First, Georgia Power alleges Mr. McCravy testified that he does not recall or have knowledge of discussions with Georgia Power regarding Hajoca's inspection or quality assurance obligations. Id. at 12-13 (citing McCravy Dep., Dkt. No. [123-3] at 39). Further, Georgia Power contends Mr. McCravy did not know if Georgia Power requested any kind of quality assurance, but explained that such a request would be found in the purchase order. Id. at 13 (citing McCravy Dep., Dkt. No. [123-3] at 46-47).

According to Mr. McCravy's deposition, he was asked if there was any discussion about the need to have the strainers sent to Hajoca for inspection, to which he responded “I don't recall. I just have no knowledge of that. I would not think so, but I don't know that.” McCravy Dep., Dkt. No. [123-3] at 39:3-16. Mr. McCravy was also asked if he knew whether any kind of quality assurance program was requested by Georgia Power, and he responded “[j]ust glancing over the [Purchase Order], I don't—I probably would say no, but I don't know that ... If that was an important thing, it would—if that was a real urgent thing to do, Georgia Power would have had it all over it.” Id. at 46:10—47:4. Counsel followed up, asking whether McCravy “would expect [such a request] would be included in the purchase order” to which McCravy responded “Yeah.” Id. at 47:5-7.

The Court finds no conclusive evidence in Mr. McCravy's testimony that Georgia Power waived its right under the Purchase Order to have Hajoca implement and perform quality assurance. Mr. McCravy's testimony that he does not recall or have knowledge of a request for quality assurance from Georgia Power is not sufficient evidence that Georgia Power did not make such a request. To the contrary, Mr. McCravy's testimony that he would expect that a quality assurance request would be included in the purchase order could show that Georgia Power's request was communicated to Hajoca, and in the manner Hajoca would expect the request to be communicated. See Purchase Order, Dkt. No. [115-7] at 3 (unambiguously requiring Hajoca to perform quality assurance).

Georgia Power also argues that Jim Garrison did not testify as Hajoca claims, that “Phil Gambrell never called him or anyone else” regarding a quality assurance program. Dkt. No. [129] at 13. Georgia Power contends that the testimony Hajoca relies on is merely Garrison's statement of his “feelings” as to why Hajoca did not breach the contract. Id. (citing Garrison Dep., Dkt. No. [123-4] at 131-32). Further, Georgia Power argues that Mr. Garrison's testimony that Mr. Gambrell did not express any issues with the product and told him that Hajoca did a great job is not evidence of an intentional waiver because the alleged statements were made well before the date of the failure, and without any reason to suspect that Hajoca had not already performed its quality assurance role. Id. at 13-14.

*16 In the relevant portion of his deposition, Mr. Garrison was asked on what facts Hajoca bases its statement that “Hajoca has breached no contract.” Garrison Dep., Dkt. No. [123-4] at 131. Mr. Garrison responded:

Id. at 132:4-23. Mr. Garrison also testified that during the conversation in which Mr. Gambrell told him he had done a great job, Mr. Gambrell did not tell him there were any issues with the strainers. Id. at 165:25—166:8. According to Mr. Garrison's testimony, this conversation was his last with Mr. Gambrell, id. at 165:17-22, and it occurred “within a few days, a week, ten days of delivery of the product” which was before the time the strainers failed. Garrison Dep., Dkt. No. [128-3] at 134:11-21.

Mr. Gambrell's alleged statements to Mr. Garrison are not conclusive without evidence that Mr. Gambrell knew at the time he made the alleged statements that Hajoca had not inspected the strainers or otherwise performed any quality assurance. Otherwise, Mr. Gambrell's statements that Mr. Garrison “[did] a great job” and would be “recommend[ed] to others” cannot conceivably refer to the design or quality of the strainers. Id. at 132:10-11. Mr. Garrison's testimony itself suggests that Mr. Gambrell's praise was based on the facts that Mr. Garrison “kept [Mr. Gambrell] in contact,” “followed up after each shipment,” and “confirmed that the [strainers] had been delivered to the site.” Id. at 132:10-23.

Hajoca does not cite any evidence that Mr. Gambrell, or anyone from Georgia Power, knew Hajoca had not performed its quality assurance obligations. However, Georgia Power provides evidence that it believed, based on Hajoca's representations, that Hajoca inspected the strainers prior to delivering them to Georgia Power. Dkt. No. [128] at 10-11. Specifically, Georgia Power cites an email from Mr. Garrison to a Georgia Power engineer, stating “the goods are being delivered to our warehouse for inspection. The following day we will take them to the site.” Dkt. No. [109-24]. This email was forwarded to Mr. Gambrell. Id. Mr. Garrison admits to sending this email and explains that it reflected his assumptions at that time, as it was common for material to come to a Hajoca distribution center for an inspection. Garrison Dep., Dkt. No. [109-23] at 140:8— 141:3-18. However, Mr. Garrison explained that Mr. McCravy elected to ship the strainers directly from the manufacturer to the job site. Id. There is no evidence before the Court that Mr. McCravy's decision was communicated to Georgia Power or that Georgia Power otherwise knew Hajoca had not implemented a quality assurance program prior to delivering the strainers to the job site. Therefore, Mr. Gambrell's alleged statements that Mr. Garrison had done a great job cannot be interpreted as conclusively establishing “an intent to relinquish” the right to a quality assurance system. See Eckerd, 589 S.E.2d at 664 (holding there is no waiver unless a party's acts “are so manifestly consistent with an intent to relinquish a then-known particular right or benefit that no other reasonable explanation of his conduct is possible”).

*17 The same reasoning applies to Hajoca's other waiver arguments. Hajoca argues that “[s]ince a quality assurance program was not even implemented by Georgia Power itself, it can only be concluded that Georgia Power did not feel that it was necessary to have such program implemented.” Dkt. No. [123] at 24. Hajoca makes the same argument with regard to Georgia Power's failure to hire outside engineers. Id. at 22; Dkt. No. [115-2] at 20.

As discussed above, there is evidence that shows Georgia Power had reason to believe the strainers were inspected by Hajoca prior to their arrival at Plant McDonough. Dkt. No. [109-24]. Without knowledge that a quality assurance program had not been implemented, Georgia Power's failure to conduct its own inspection or hire outside engineers to inspect does not necessarily show that Georgia Power deemed a quality assurance program unnecessary. Because Hajoca does not offer any evidence to support an inference that Georgia Power intentionally relinquished its right to a quality assurance system, the Court finds that Hajoca's waiver defense fails as a matter of law.

Based on the unambiguous terms of the Purchase Order and other undisputed facts discussed above, the Court finds that the terms of the contract required Hajoca to establish a quality assurance system. In addition, the Court finds there are questions of fact as to waiver of that contractual provision.

Hajoca also argues Georgia Power cannot show its damages were the result of the breach because (1) there is no conclusive evidence as to what went wrong with the strainer baskets, and (2) a quality assurance system would not have detected the problem.[6] Dkt. No. [115-2] at 18, 24.

With regard to its first point, Hajoca contends that the missing strainer housings make it impossible for Dr. Eagar to determine the strainer baskets were defective. Id. at 18. In support of this argument, Hajoca relies on Mr. Maseda's affidavit, which states that without the strainer housings, “there was no way that full, complete, and accurate testing on the strainer baskets could take place to assist in the determination of the root cause of the failures of the subject strainer baskets.” Dkt. No. [115-14] ¶ 8.

Georgia Power contends that causation is not at issue because Hajoca's responses to its statements of undisputed material facts are admissions that establish Sure Flow's design and manufacturing omissions caused the failure of the strainers. Dkt. No. [128] at 6. Specifically, Georgia Power points to its statements that “[t]he failure to consider [the issue of short-circuited airflow] resulted in design flaws that were a root cause of the strainer baskets failure” and “[b]ecause of these omissions, the metal filter screens failed in service, causing damage to downstream combustion turbine components.” Dkt. No. [111] ¶¶ 23, 31. In response to both statements, Hajoca stated “Plaintiff's Statement ... reflects the allegations of the plaintiff's expert witness as to what he contends to be the cause of the failure of the strainer bodies which are the subject of the Plaintiff's Complaint, but said statement has nothing to do with any liability on the part of Hajoca since it is only the product seller.” Dkt. No. [121] ¶¶ 23, 31.

*18 Georgia Power is correct that Hajoca's responses should be construed as admissions under Local Rule 56.1. See LR 56.1B(2)(a)(2), NDGa. This rule is intended to “protect[ ] judicial resources by ‘making the parties organize the evidence rather than leaving the burden upon the district judge.’ ” Reese v. Herbert, 527 F.3d 1253, 1268 (11th Cir. 2008) (quoting Alsina-Ortiz v. Laboy, 400 F.3d 77, 80 (1st Cir. 2005)); see also Mann v. Taser Int'l, Inc., 588 F.3d 1291, 1303 (11th Cir. 2009) (explaining Local Rule 56.1 was “designed to help the court identify and organize the issues in the case”). The Court, in its discretion, may overlook noncompliance with Local Rule 56.1. Reese, 527 F.3d at 1270. In this case, upon review of the entirety of the record, the Court found ample support for the conclusion that Hajoca contests the issue of causation; substantial portions of Hajoca's briefs and attached affidavits demonstrate as much. Dkt. No. [115-2] at 2, 10, 18-19, 22; Dkt. No. [115-14]; Dkt. No. [123] at 3, 7, 20-21; Dkt. No. [138] at 4-6. To ignore this disputed issue of fact based upon a technicality would contravene the judiciary's policy favoring decisions on the merits. See Foman v. Davis, 371 U.S. 178, 181-82 (1962). Accordingly, the Court does not deem Georgia Power's statements regarding the cause of the strainer failure conclusively admitted.

Georgia Power also responds to the substance of Hajoca's argument, contending that Mr. Maseda is not credible because his affidavit is inconsistent with his deposition testimony. Dkt. No. [128] at 14. Georgia Power argues Mr. Maseda had the opportunity to examine exemplar strainer housings created by Sure Flow, but made no effort to measure them. Id.

Credibility determinations are functions of the jury, not the judge. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Nor is it the court's role on a motion for summary judgment to weigh conflicting evidence. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996). Here, Dr. Eagar's testimony is evidence that the strainer basket failure was caused by a faulty design, whereas Mr. Maseda's affidavit is evidence that the failure may not have been caused by a faulty design.[7] Thus, the Court finds a disputed issue of material fact with regard to the cause of the strainer failure. As discussed in Section III.B, supra, the expert witnesses' differing opinions are properly addressed on cross-examination.

Hajoca's second argument regarding causation is that a quality assurance system would not have revealed any problem with the strainers. Dkt. No. [123] at 24. Specifically, Hajoca notes that since there was no open or obvious indication to Georgia Power or its installers that the strainers were defective, Hajoca would not have noticed any defect upon a visual inspection. Id. Further, Hajoca cites Dr. Eagar's opinion that the strainer failure is attributed to “transient thermal stresses during start up,” which a quality assurance program would not have revealed. Id. at 18.

Georgia Power responds that Dr. Eagar's declaration establishes that Hajoca's failure to implement a quality assurance program resulted in Hajoca failing to catch and prevent the obvious issues that resulted in the strainer failure. Dkt. No. [128] at 15. The issues Dr. Eagar contends Hajoca would have noted are: (a) the support bars for the strainer baskets were on the inside, rather than the outside of the baskets; (b) Sure Flow did not evaluate its chosen design and failed to consider design alternatives; (c) Sure Flow did not design the strainers and strainer baskets to operate successfully with one another in the intended operating environment; and (d) Sure Flow failed to provide the strainer basket subcontractor, Concord Screen, with essential details regarding the form, fit, and function in the operating environment as well as the differential pressure under which the basket would operate. Dkt. No. [109-3] at 4. Dr. Eagar opines that the failure to observe, address, and correct these issues resulted in the problems which caused the strainer baskets to fail. Id.

*19 Because Hajoca disputes Dr. Eagar's contentions regarding the problems that caused the strainer baskets to fail, it follows that his opinions regarding signs of those problems are also disputed. If the true cause of the strainer failure is not attributed to a defective design, then Hajoca could not have prevented the strainer failure even if it had noticed and addressed the issues Dr. Eagar describes. Thus, there is a disputed issue of material fact regarding whether Hajoca's failure to implement a quality assurance program caused the strainer basket failure.

Accordingly, Georgia Power's Motion for Summary Judgment [109] is DENIED and Hajoca's Motion for Summary Judgment [115] is DENIED as to the contract claim.

Hajoca moves for reconsideration of the Court's June 4, 2015 Order granting Georgia Power's and Sure Flow's joint motion to dismiss with prejudice all claims against Sure Flow. Dkt. No. [142]. Hajoca argues that a motion for reconsideration is necessary because the Court entered its Order less than 24 hours after the joint motion was filed, and counsel for Hajoca was not given an opportunity to file an opposition brief. Id. at 3.

Hajoca is correct that it should have been allowed 14 days to respond to the motion. LR 7.1(B), NDGa. Therefore, the Court considers the merits of Hajoca's opposition to the dismissal of Sure Flow from this case.

Hajoca seeks to bring Sure Flow back into this action so that it will be required to appear at trial with its fact witnesses. Dkt. No. [142] at 1-2. Hajoca contends that Sure Flow's employee witnesses showed during the discovery period that there was nothing defective about the strainer baskets, which would prevent Georgia Power from recovering against Hajoca. Id. at 5-6. However, Hajoca argues that Sure Flow's dismissal from the case denies Hajoca fact witnesses to defend itself. Id. at 6. As Sure Flow's employees are located in Canada, they are beyond the subpoena power of the Court and Hajoca alleges that Sure Flow will not voluntarily provide its employees to testify at trial. Id. at 7.

Georgia Power responds that a motion for voluntary dismissal should be granted unless the defendant will suffer clear legal prejudice or harm. Dkt. No. [145] at 3 (citing Arias v. Cameron, 776 F.3d 1262, 1268 (11th Cir. 2015)). Noting that Hajoca's counsel was present at the depositions for each of Sure Flow's employee witnesses, Georgia Power contends there is no prejudice to Hajoca by the dismissal of Sure Flow. Id. at 3-4. Further, Georgia Power argues that if Hajoca intends to introduce testimony from one of these witnesses, it may use their depositions pursuant to Federal Rule of Civil Procedure Rule 32(a)(4). Id. at 4.

In its reply brief, Hajoca raises, for the first time, a provision in the “Terms and Conditions of Sale” which states that “BUYER AND PERSONS CLAIMING THROUGH BUYER SHALL SEEK RECOURSE EXCLUSIVELY FROM MANUFACTURERS IN CONNECTION WITH ANY DEFECTS IN OR FAILURES OF GOODS.” Id. Dkt. No. [146] at 5. Hajoca contends that these terms show it is vital that Sure Flow's witnesses remain in the case to establish Hajoca's defenses. Id. at 6.

Georgia Power moves for leave to file a surreply in order to address Hajoca's new argument. Dkt. No. [148]. The Court finds that a surreply is unnecessary. Federal courts do not consider arguments raised for the first time in a reply brief. Rindfleisch, 22 F. Supp. 3d at 1301. Further, the “Terms and Conditions” do not demonstrate any prejudice to Hajoca resulting from Sure Flow's dismissal, or the absence of Sure Flow's witnesses at trial. Hajoca fails to explain why any prejudice could not be cured through the introduction of witness depositions at trial. In fact, Hajoca notes in its motion for reconsideration that the witnesses it seeks “are the same Sure Flow fact witnesses who destroyed Georgia Power's theories of recovery during the taking of depositions.” Dkt. No. [142] at 8. Given that Hajoca may introduce this deposition testimony at trial pursuant to Rule 32(a)(4), the Court finds no prejudice to Hajoca from the absence of Sure Flow's employee witnesses at trial.

*20 Accordingly Hajoca's Motion for Reconsideration [142] is DENIED, and Georgia Power's Motion for Leave to File Surreply [148] is DENIED AS MOOT.

Based on the foregoing reasons, the Court DENIES Hajoca's Motion to Dismiss Based on Spoliation [117] and Hajoca's Daubert Motion to Exclude Thomas W. Eagar [118]. The Court also DENIES Georgia Power's Motion for Summary Judgment [109] and Hajoca's Motion for Summary Judgment [115]. The parties are DIRECTED to file their Joint Consolidated Pre-Trial Order within thirty (30) days of the date of this Order.

Further, the Court DENIES Hajoca's Motion for Reconsideration [142], and DENIES AS MOOT Georgia Power's Motion for Leave to File Surreply [148].

IT IS SO ORDERED this 16th day of February, 2016.

The parties dispute whether Hajoca or Georgia Power gave the final approval.

The Court notes that even if bad faith is determined by balancing the alleged spoliator's culpability against prejudice to the opposing party, the Court would reach the same result.

Whether the opinions in Dr. Eagar's declaration are inadmissible “new opinions” is a discovery issue not properly before the Court. The disclosure of expert opinions and remedies for failure to disclose are governed by the Federal Rules of Civil Procedure. See e.g., STS Software Sys., Ltd. v. Witness Sys., Inc., 1:04-CV-2111-RWS, 2008 WL 660325, *2 (N.D. Ga. March 6, 2008) (discussing new expert opinions under the Federal Rules of Civil Procedure). Although Hajoca briefly mentions Federal Rule of Civil Procedure 26(a)(2) with regard to the allegedly new opinions, it seeks to exclude them under Daubert. The Daubert inquiry focuses on the evidentiary reliability and relevancy of expert testimony, 509 U.S. at 594-95, not the circumstances surrounding the disclosure of expert opinions in civil litigation. Therefore, to the extent Hajoca seeks the exclusion of Dr. Eagar's declaration on this basis that it offers new opinions, that request is denied.

In response to Georgia Power's summary judgment motion, Hajoca does not address damages other than to state that “no damages recited in the Plaintiff's Brief can be recovered against Hajoca since Hajoca is not liable for any acts or omissions.” Dkt. No. [123] at 19 (emphasis added). Further, Georgia Power's statements of material fact regarding the amount of damages are deemed admitted under Local Rule 56.1 based on Hajoca's unacceptable responses. Dkt. No. [111] ¶¶ 34-38; Dkt. No. [121] ¶¶ 34-38; LR 56.1B(2)(a)(2) and (4), NDGa. Thus, Georgia Power's contention regarding damages was not truly disputed. However, in its reply brief in support of its own motion for summary judgment, Hajoca argues for the first time that summary judgment for Georgia Power should be denied because its alleged damages are based solely on the opinion of its expert witness, Jack Damico. Dkt. No. [138] at 4, 8 (citing Standex Int'l Corp. v. Driver, 478 S.E.2d 605, 606 (Ga. Ct. App. 1996) (“Opinion evidence can never be the basis for the grant of summary judgment in favor of a plaintiff.”)). The Court rejects this argument because Hajoca raises it for the first time in its reply brief. See Rindfleisch, 22 F. Supp. 3d at 1301 (“[F]ederal courts do not consider arguments that are presented for the first time in a reply brief.”). In addition, because the Court denies both parties' motions for summary judgment on the contract claim, it is not necessary to reach the damages issue at this time.

Hajoca also argues that because it only passed the approval documents between Georgia Power and Sure Flow, it did not gain enough knowledge about strainers to know what was and was not delivered. Dkt. No. [115-2] at 20; Dkt. No. [123] at 21. However, Hajoca fails to provide any legal authority in support of this argument or otherwise explain how this establishes waiver. Therefore, the Court finds this argument is without merit.

Hajoca also argues that it is entitled to summary judgment because Dr. Eagar's testimony “consists only of mere allegations upon which a case cannot be proven. Rule 56(e) provides that a motion for summary judgment cannot be based on the mere allegations in the Complaint.” Dkt. No. [115-2] at 17. This argument ignores the distinction between “allegations” and “evidence,” which can support a motion for summary judgment. See FED. R. CIV. P. 56. Evidence includes an expert witness's report, deposition testimony, affidavits, and declarations. FED. R. CIV. P. 56(c)(1)(A).

Georgia Power also argues that “Hajoca neither cites, nor incorporates by reference any controverting expert affidavit to respond to Dr. Eagar's expert testimony on causation.” Dkt. No. [128] at 7. This argument ignores Mr. Maseda's affidavit, which controverts Dr. Eagar's testimony. To the extent Georgia Power intended to argue that Hajoca does not provide its own expert to opine as to the cause of the strainer failure, the Court rejects that argument as well. As the defendant in this case, Hajoca need not establish an alternative explanation for the strainer failure in order to prevail. Rather, Hajoca may merely discredit Georgia Power's theory of causation.