Court Finds Construction Expert's Testimony Regarding Causation, Damages, and Industry Standards Helpful Despite Limited Role in Underlying Insurance Claim Evaluation

Court Finds Construction Expert’s Testimony Regarding Causation, Damages, and Industry Standards Helpful Despite Limited Role in Underlying Insurance Claim Evaluation

This case involved an insurance dispute between Plaintiffs Bradford and Christy Boone (The Boones) and Defendant State Farm Fire and Casualty Company. The allegations centered around State Farm’s alleged failure to fulfill contractual obligations, engaging in bad faith practices, and committing constructive fraud in relation to the insurance claim made by the Plaintiffs. In April 2020, the Boones’ home suffered wind and hail damage. They submitted an insurance claim to State Farm, their insurer. The Boones alleged that State Farm conducted inadequate and delayed inspections of the property and offered inadequate compensation.

Throughout the claims process, the Boones used contractor Bedlam Construction (Bedlam) and public adjuster Express Estimators (Express). After a September 2020 inspection, the State Farm adjuster allegedly informed Express that it was a “full buy,” leading Plaintiffs, Bedlam, and Express to assume that State Farm would cover the entire claimed damages to the dwelling, pool house, and carport. Subsequently, Plaintiffs engaged Bedlam for repairs. State Farm initiated its initial payments of $25,822.04 in October 2020, following the commencement of these repairs. In December 2020, after the completion of repairs, Plaintiffs approached State Farm to inquire about the status of the claim and outstanding payments. The claims process continued through 2020 and into 2021, prompting Plaintiffs to seek legal representation in January 2021 and file a lawsuit in September of the same year.

In August 2022, State Farm enlisted Michael Berryman to conduct an additional inspection of Plaintiffs’ property. Berryman provided his estimate of the claim in September. By December 2022, State Farm, relying on Berryman’s estimate, indicated that a supplemental payment would be issued. In January 2023, a payment of $33,232.54 was issued.

In March 2023, State Farm disclosed Berryman as an expert witness, and his report, based on the August 2022 inspection, documents, and deposition transcripts, became the focus of Plaintiffs’ motion. Berryman intended to testify on: (1) the extent of storm damages on the date of loss and expected repair costs; (2) the reliability of Bedlam’s damage estimate and its performance as the property restoration contractor; and (3) the reliability of Express’s damage estimates.

Berryman listed his conclusions as follows:

  • Hail impacted the roof systems of the home, detached carport, and pool cabana during their service lives. While the hail caused minor cosmetic denting to gutter screens, downspouts, and copper chimney flues, it was insufficient in size to damage the 30-year laminated asphalt roof shingles of the home or the modified bitumen roof of the pool cabana. Wind damage was observed on the home’s roof but not on the roofs of the detached carport and pool cabana. Interior damage in the home was limited to the ceilings of the Northeast Bedroom and potentially a portion of the Formal Living Room. The work undertaken for the interior by Boone was considered excessive.
  • Bedlam, the involved party, was noted for failing to cooperate with State Farm as expected, and they did not keep their customer, the Boones, adequately informed during the property restoration process. The scope of repair work carried out by Bedlam was considered excessive, surpassing what was necessary to address storm damages.
  • The Boones engaged the services of a public adjuster named Express Estimators (Express). Estimates created by Express on August 17, 2020, and August 18, 2020, were deemed inadequate for determining the required cost to restore the property to its pre-loss condition. These estimates failed to support the Boones’ claim or the scope of work and costs presented by Bedlam.

The Boones moved to exclude Berryman’s testimony as unhelpful and relying on insufficient basis.

Michael James Berryman is a construction expert witness based in Oklahoma. Berryman earned a Bachelor of Arts degree in Molecular Biology from Vanderbilt University in 1979. He currently serves as the President and CEO of Berryman Enterprises, Inc., an Oklahoma-based general contracting and consulting company that he owns and operates. Berryman also works directly as a general contractor and consultant in Oklahoma City, Oklahoma. Over the course of his extensive career, he has published works relating to the construction industry.

The analysis of Plaintiffs’ motion begins with Rule 702, which sets forth criteria for expert testimony admissibility. The rule requires the proponent to demonstrate that the expert’s knowledge will aid the trier of fact, the testimony is based on sufficient data, relies on reliable principles and methods, and reflects a reliable application of those principles to the case. The Court serves as a gatekeeper to ensure the reliability of expert testimony. In this case, Plaintiffs did not contest Berryman’s qualifications or the reliability of his principles and methods but argued that his opinions were unhelpful and based on insufficient facts. 

Most of the Plaintiffs’ arguments center on the issue of whether Berryman’s testimony would be helpful to the trier of fact. Specifically, Plaintiffs contended that (1) an expert witness was unnecessary in this case, as State Farm did not employ one when assessing Plaintiffs’ insurance claims; (2) Berryman’s testimony would contravene the principles established in Buzzard v. Farmers, 1991 OK 127, 824 P.2d 1105, since he relied on information that was not considered by State Farm during the handling of Plaintiffs’ insurance claims; (3) Berryman’s opinions concerning the performance and estimates of Plaintiffs’ contractors lacked relevance; and (4) Berryman’s viewpoints would encroach upon the trier of fact’s role in assessing witness credibility.

Plaintiffs contended that Berryman’s testimony would not aid the trier of fact, asserting that State Farm never deemed an expert necessary to assess their claim. State Farm countered by asserting that it did hire Berryman to evaluate the claim and utilized his estimate to provide additional insurance benefits to Plaintiffs. The Court rejected Plaintiffs’ argument, emphasizing the lack of a legal basis to claim that hiring an expert for litigation requires prior expert involvement before litigation commenced.

Plaintiffs argued that Berryman’s report should be excluded under Buzzard, contending that State Farm used his expert opinion as a post-denial rationalization for denying their claim. Plaintiffs claimed that the majority of materials in Berryman’s report were unknown or not relied upon by State Farm during the initial claim evaluation. The Court rejected the argument that Berryman’s involvement in handling Plaintiffs’ claims should automatically render his opinions admissible, leaving the decision to the district judge, particularly if Berryman testifies as a fact witness under Rule 701.

A bad faith insurance claim hinges on the actual reason provided by the insurance company when denying the claim, not on a post-denial rationalization, making evidence supporting the latter inadmissible under Buzzard. However, such evidence may be admissible for other purposes. 

In this case, Berryman’s opinions extend beyond State Farm’s alleged bad faith, encompassing issues such as the physical damage caused by the insured event and the reasonableness of expenses incurred by the Boones. These aspects directly relate to Plaintiffs’ damages, a crucial element of their claims. The relevance of Berryman’s testimony to the trier of fact is evident, as it addresses essential components of the breach of contract and bad faith claims. State Farm argues that if Plaintiffs’ expert testimony is deemed helpful, Berryman’s rebuttal would also provide valuable insights to the trier of fact.

The remaining portion of Berryman’s testimony focuses on assessing the adequacy of Plaintiffs’ contractor’s performance. The admissibility of expert testimony hinges on its helpfulness to the trier of fact, as established in Wilson v. Muckala, 303 F.3d 1207, 1219 (10th Cir. 2002). In situations where laymen jurors possess sufficient experiences and qualifications to draw conclusions from presented facts, expert testimony becomes unnecessary and inappropriate. Similar to the evaluation of damages estimates, the standards by which contractors operate in specialized circumstances may not be readily understood by laypersons. Moreover, Berryman’s testimony on the adequacy of the contractor’s performance is relevant to determining the causation and extent of Plaintiffs’ damages, thereby serving as valuable information for the trier of fact.

Plaintiffs contested the inclusion of Berryman’s report and testimony regarding their general contractor, Bedlam, arguing that State Farm’s non-delegable duty of good faith made actions by third parties irrelevant. Berryman provided opinions on Bedlam’s overall performance and practices, including compliance with its contract, industry standards, communication with Plaintiffs, and cooperation with State Farm. Plaintiffs claimed that the actions of third parties like Bedlam were irrelevant, given State Farm’s duty. However, Berryman’s analysis was considered directly relevant to the extent of damages suffered by Plaintiffs, and State Farm argued that it needed further information to evaluate the claim. The Court did not preemptively exclude Berryman’s testimony on the basis of Bedlam’s contract but left room for reconsideration during trial and evaluation of potential confusion or unfair prejudice.

Plaintiffs argued that Berryman’s testimony was not helpful to the jury, contending that it intruded on the jury’s role in assessing credibility and reliability. The Court rejected this argument, noting that Berryman’s testimony addressing the substance of other experts’ opinions and the reliability of damage estimates had already been deemed admissible. Additionally, the Court rejected the notion that Berryman impermissibly commented on the credibility of other witnesses, citing legal precedent that credibility determinations are generally not appropriate subjects for expert testimony. The Court clarified that Berryman’s report focused on the quality and accuracy of others’ work and provided rebuttal evidence to Plaintiffs’ claimed damages, without making explicit credibility determinations. Consequently, the Court found Berryman’s testimony permissible, allowing him to testify on the reliability of estimates provided by Express, while Bedlam could explain any faults in the estimates.

Plaintiffs’ final argument revolves around the adequacy of the facts or data on which Berryman based his testimony. They claimed that Berryman relied on inaccurate and incomplete information, specifically noting his omission of depositions from State Farm Team Manager Roger Clark and corporate representative Brett Barthelme. Defendant countered that Berryman did not have access to these depositions at the time of his report and, if the opinions were affected, a supplemental report would have been provided. The Court, applying the standard from Rule 702, aimed to ensure that Berryman’s testimony met the intellectual rigor of his field and concluded that, while Plaintiffs asserted Berryman overlooked certain details, the overall basis for his opinions was likely sufficient. The Court deemed any issues with omitted information as matters of weight, not admissibility, and highlighted the opportunity for cross-examination and presentation of contrary evidence during trial.

The Court issued an order denying Plaintiffs’ Motion to Strike Defendant’s Expert Michael Berryman and his Expert Report. The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.

This case demonstrates that expert witness testimony may still be helpful and admissible even if the Defendant did not rely on an expert when initially handling the underlying claim or transaction. The testimony cannot serve as a post-hoc rationalization prohibited by Buzzard, but it may permissibly go to other disputed issues like causation and damages.

Additionally, expert testimony rebutting the opinions and estimates provided by the opposing party’s experts is likely to be helpful to the trier of fact. Evaluating the reliability of evidence goes to weight, not necessarily admissibility.

Finally, critiquing the methodologies and conclusions of another expert or participant in the events does not always equate to an impermissible credibility determination. Assessing reliability does not usurp the role of the fact-finder in assessing truthfulness.