Testimony of Civil Engineering Expert Witness found to meet the requisite reliability threshold under Daubert in insurance coverage dispute

Testimony of Civil Engineering Expert Witness found to meet the requisite reliability threshold under Daubert in insurance coverage dispute

The lawsuit originated from a commercial property insurance claim brought by Plaintiff, 285 West 24th Street Family Company, LLC, under a surplus lines insurance policy issued by Defendant, United Specialty Insurance Company. The claim involved both visible and latent damages reported by the Plaintiff, believed to have occurred while the policy was active on May 27, 2020. The damages encompassed various issues, including water damage resulting from wind damage and heavy wind and rain.

On April 15, 2021, the Plaintiff initiated the case in state court after filing its Petition for Declaratory Relief. Plaintiff sought a declaration of the rights and/or obligations of the Parties under the “all risk”
Policy of insurance covering the commercial property in Hialeah, Florida.

Subsequently, on February 4, 2022, the Defendant removed the case to federal court alleging diversity jurisdiction and countered with a claim seeking a declaration that the Plaintiff’s claim was not covered by the applicable insurance policy.

Defendant moved to strike the reports and testimony of Plaintiff’s expert Alfredo Brizuela, P.E. citing the untimely and improper disclosure of a new contradictory opinion which was also insufficient as per the Daubert Standard.

Civil Engineering Expert Witnesses

Alfredo Brizuela is a architectural, structural and civil engineer. His company, Al Brizuela Engineering specializes in construction science and management services as well as hurricane, building and design inspections. Alfredo Brizuela’s corporate resume spans over three decades and includes projects undertaken for Miami International Airport (M.I.A.), The Miami Herald, Metro-Dade Transit, Biltmore Hotel, Museum Tower, Freedom Tower, Jackie Gleason Theater, Miami Children’s Hospital, Jackson Memorial Hospital, Grand Bay Hotel, Wyndham Hotel, San Juan, Puerto Rico among many others.  

Discussion by the Court

The operative scheduling order initially required expert witness disclosures by June 15, 2023. Both Parties jointly requested and were granted a 15-day extension until June 30, 2023, to finalize their expert witness summaries or reports. Plaintiff submitted expert Alfredo Brizuela’s report on June 22, 2023, indicating the type of loss as “water and wind damage.”

During Brizuela’s deposition on July 28, 2023, he contradicted his prior conclusion about heavy winds, stating disagreement with his earlier assessment. Subsequently, on August 1, 2023, after Brizuela’s deposition, Plaintiff disclosed a second report termed an “amended report” dated July 30, 2023. This secondary report was presented 30 days after the Rule 26 expert disclosure deadline. Defendant moved to strike Plaintiff’s first expert report (dated June 22, 2023) because it was procedurally deficient.

Defendant contended that Federal Rule 26(a)(2)(B)(i) necessitates a comprehensive statement encompassing all opinions a witness intends to express, along with their basis and reasoning. They argued that Plaintiff’s expert Brizuela failed to provide a complete statement as he subsequently amended the report, altering initial conclusions and expressing disagreement with the earlier opinion during deposition.

Defendant further asserted that this change in opinion lacked substantial justification since it contradicted the initial assessment, emphasizing Brizuela’s failure to justify or explain the critical error during the deposition. Additionally, Defendant highlighted the absence of any indication in the July 30th report about the existence of a prior opinion or report, adding to the contention that the amended report lacked completeness and coherence.

The Defendant argued that the amended report, dated July 30, 2023, should be stricken due to its untimeliness. The report was disclosed after the deadline stipulated by the Court’s Scheduling Order and subsequent to the deposition of expert Brizuela.

Under Federal Rule of Civil Procedure 37(c), the utilization of information or a witness during a motion or trial if the party failed to provide that information or identify the witness as required by Rule 26(a) or (e) is prohibited, unless the failure was substantially justified or deemed harmless.

The Court, in determining the admissibility of expert testimony or any expert-prepared report, engaged in a three-part evaluation. This evaluation included assessing whether: (1) the expert was adequately qualified to testify on the relevant matters; (2) the methodology employed by the expert in forming conclusions was sufficiently reliable; and (3) the testimony aided the trier of fact in comprehending evidence or determining a fact in question through the application of specialized expertise in scientific or technical matters.

In response, Plaintiff did not argue that the amended report was timely but emphasized that upon receiving it, their counsel promptly forwarded the report to the Defendant’s counsel on the very same day. Additionally, the Plaintiff asserted that during the deposition, their expert was fully prepared and capable of testifying regarding the amended causation report from July 30, 2023. Therefore, the Plaintiff argued that despite the untimely disclosure, it did not cause harm as the expert was readily available and prepared to discuss the amended report during the deposition.

An expert report may be supplemented, pursuant to Rule 26(e), when the party learns that the original disclosure was incomplete or incorrect. The Court also recognized that a party cannot abuse Rule 26(e) to merely bolster a defective or problematic expert witness report, citing Potiguar v. Caterpillar Inc., 1:14cv24277.

The Court found that the two reports provided by Plaintiff’s expert collectively formed his opinion. An expert is entitled to have multiple opinions. Any inconsistencies or contradictions in the two reports may be raised at trial during questioning. Defendant’s objection that the amended report was untimely was denied because it was harmless. The disclosure was made before the end of discovery and there could have been an additional deposition taken. Defendant’s objection that the amended report contradicts his first report was also denied without prejudice to be raised at trial.

Defendant further insisted that under the admissibility standards guided by Federal Rules of Evidence 702 and Daubert, the testimony and opinions presented by Plaintiff’s expert, Alfredo Brizuela, were recommended for exclusion from admission as evidence during the trial in this case. The pivotal factual matter central to the case revolved around determining the cause of the reported damage on May 27, 2020. In Brizuela’s report from June 22, he attributed the cause of loss to “wind and wind-uplift”. However, the subsequent July 30 Brizuela Report attributed the cause of loss to “water travel from the effects of the heavy rains.”

Brizuela conceded that he inspected the subject Property three years after the loss. It was also undisputed that at the time Brizuela inspected the roof, it had already undergone major changes, having had an epoxy-like coating applied to the affected areas of the roof to prevent further leaking. Defendant alleged that Brizuela failed to “specify or identify any specific areas in the roofing system with openings that the rainwater entered.”

Plaintiff contended that its expert Brizuela’s opinion met the Daubert standard, emphasizing that, akin to numerous opinions in similar cases, their expert’s assessment was grounded in a comprehensive array of supporting elements. These encompassed associated diagnostic tests, weather data, repair records, pre-suit public adjuster photos, estimates, reports, and other relevant information. According to Plaintiff, all these crucial elements were meticulously documented in the amended report, which included an extensive catalog of relied-upon information and data, accompanied by an excess of a hundred photographs.

The Court held that both of Alfredo Brizuela’s expert reports were extensive enough to be considered reliable and helpful to the trier of fact. While the Daubert framework is helpful to determine reliability, it does not mandate that every factor in Daubert be satisfied. The Court has broad discretion, not only in determining an expert’s reliability, but also in how to examine an expert’s reliability.

Though not specifically challenged, the Court found that Plaintiff’s expert, Brizuela, was deemed qualified, and his testimony was considered reliable and beneficial to assist the trier of fact. Acknowledging that any inconsistencies or shortcomings could be addressed during the trial, the Court determined that the assessment of credibility would fall within the trial’s purview. Consequently, the Court concluded that the Motion against Brizuela should be denied without prejudice, enabling Defendant to raise suitable objections if and when the disputed evidence is presented.


The Court denied the Defendant’s Motion to Strike Alfredo Brizuela’s Expert Opinions and Testimony as well as the Defendant’s Daubert motion to exclude the testimony of Alfredo Brizuela.

Key Takeaways:

This order denied the Defendant’s motion to strike the Plaintiff’s expert witness, Alfredo Brizuela. The Defendant argued Brizuela’s testimony should be struck because his initial expert report was incomplete and contradictory to his later deposition testimony, and because his amended expert report was submitted after the deadline imposed by the Court’s scheduling order.

The Court found that the two expert reports collectively formed Brizuela’s opinion and that he was entitled to have multiple opinions. Any inconsistencies between the reports could be raised at trial during questioning. The Court also found the late disclosure of the amended report was harmless since it was provided before the end of discovery and the Defendant could have requested an additional deposition.

Regarding the reliability of Brizuela’s testimony under Daubert, the Court concluded that his opinions appeared sufficiently reliable and helpful to the trier of fact. The Court denied the motion to strike without prejudice, allowing the Defendant to renew objections at trial.