Hurricane Sally, which made landfall in Gulf Shores, Alabama on September 16, 2020, damaged the Compass Point Condominium (the “Condo”). This action arises out of a disagreement between the insured, Compass Point Condominium Owners’ Association, Inc. (the “Plaintiff”), and its insurer, Landmark, regarding the extent of damage to Plaintiff’s property caused by Hurricane Sally, the necessary repairs, and the cost of those repairs. Landmark retained Sam Keke and Rob Senecal to investigate the cause and extent of the damages at the Condo and Compass Point sought the exclusion of their respective expert testimony.
Civil Engineering Expert Witness
Samuel D. Keske is an engineer who works for Wiss, Janney, Elstner Associates, Inc. with a bachelor’s, master’s, and Ph.D. in civil engineering from Auburn University. He is licensed in eight states and has worked for WJE for the past nine years. He is engaged in the investigation, assessment, and rehabilitation of a variety of new and existing structures, with a focus on the early-age and long-term performance of concrete structures. His experience includes comprehensive investigation and rehabilitation of bridges and civil infrastructure facilities; physical testing, analysis, and mitigation of building construction/design defects; and repair and strengthening design with on-site support.
Construction Expert Witness
Rob Senecal II, a Partner of Surety Division at YOUNG & Associates, started in the construction industry in 1982 as an engineering assistant with Perini Corporation. During his 30-year tenure at Perini, Senecal held various positions including Chief Field Engineer, Office Engineer, Estimator, Assistant Superintendent, Superintendent, General Superintendent, and Operations Manager. Senecal worked on a variety of projects including prisons, hospitals, waste treatment plants, pharmaceutical laboratories, casino hotel resorts, high-rise office towers, parking garages, and schools. As a Partner for YOUNG & Associates, Senecal has been involved with damage claims ranging in cost from 25K to over 100 million, including builder’s risk claims. He has consulted on the flood, hurricane, hail, fire, vandalism, and construction accident losses involving structures such as residential homes, manufacturing facilities, college and municipal buildings, exercise facilities, hotels, parking structures, restaurants, schools, and hospitals, prisons, docks and piers, highways, and high-rise construction.and schools.
Discussion by the Court
Landmark hired Sam Keske (“Keske”), an engineer from Wiss, Janney, Elstner Associates, Inc. (WJE), to conduct a damage assessment of the exterior windows, doors, and skylights of the Condo. Keske was designated to testify, among other things, regarding the wind speed and pressure generated by Hurricane Sally. Specifically, he expressed the opinion that the windows and doors of the Condo “were unlikely to have experienced wind-pressure damage from Hurricane Sally.”
Compass Point sought the exclusion of Keske pursuant to Federal Rule of Evidence 702, arguing that (1) he was unqualified, (2) his methodology was unreliable, and (3) his opinion would be of little assistance to the trier of fact, with Landmark disputing each one of the grounds.
The Court found that Keske was qualified as an expert. The record showed that Keske held a bachelor’s, master’s, and Ph.D. in civil engineering and was licensed in eight states. He had worked for WJE for nine years. Despite Compass Point’s assertion that Keske lacked sufficient experience specifically dealing with fenestration systems, Landmark pointed out Keske’s experience with condominium properties following hurricane events and his prior experience as the lead engineer investigating fenestration systems. The qualification standard for expert testimony was noted to be “not stringent,” with objections to the level of the expert’s expertise concerning the credibility and weight rather than admissibility so long as the expert was found to be minimally qualified, as cited by the Court in Hendrix v. Evenflo Co., 255 F.R.D. 568 (N.D. Fla. 2009). The Court found Keske qualified to testify in the action, after a review of the relevant supporting evidence.
The Court held that Keske’s opinions were not subject to exclusion for unreliability. Keske used winds speeds recorded at six different weather locations within a 12-mile radius of Compass Point in order to calculate the wind load on Compass Point. Compass Point argued that the methodology Keske employed to calculate wind speeds and pressure deviated from standard practices and was based on “incorrect code data.” Compass Point additionally claimed that Keske used the wrong building code to determine fenestration wind loads. The Court held that Compass Point’s objections to the data used by Keske in his calculations called into question the weight and credibility of Keske’s opinions, not their admissibility which meant that the alleged shortcomings could be adequately addressed on cross examination.
Additionally, Compass Point sought the exclusion of Keske’s testimony on the grounds that it would not assist the trier of fact. However, this argument relied largely on Compass Point’s contention that Keske’s opinions were unreliable, as discussed previously. Since the Court was not persuaded by Compass Point’s reliability argument, it also did not find that this rendered Keske’s testimony unhelpful. Moreover, the Court noted that Keske’s testimony was beyond the understanding of the average lay person and would assist the trier of fact in the action.
Finally, Compass Point argued that Keske’s opinion should be excluded because it constituted hearsay and merely echoed the findings and conclusions of his co-workers. However, upon reviewing the relevant opinions, deposition testimony, and exhibits, the Court determined that Keske’s opinion was not simply a repetition of another expert’s findings. Instead, the record showed that Keske had conducted his own investigation and had consulted with his colleagues as part of the normal course of business. Therefore, the Court was not convinced that Keske was merely conveying hearsay, and exclusion was deemed unnecessary.
In response to Compass Point’s motion to exclude Landmark’s expert Sam Keske (“Keske”), Landmark submitted a new affidavit from Keske containing new opinions and calculations and Compass Point responded by requesting the Court to strike paragraphs 7 and 9 of the Keske Affidavit. Since the Court had decided that Keske’s opinions need not be excluded without consideration of the affidavit submitted by Keske, Compass Point’s Motion to Strike was deemed moot by the Court.
Rob Senecal, a building consultant for Young and Associates (Y&A), was designated to provide expert testimony regarding the reasonable and necessary costs for repairing the damage to the Condo. Y&A was hired by Landmark after Hurricane Sally to inspect and prepare a global repair estimate of damages caused to the Condo. Y&A conducted its first inspection of Compass Point in September 2020. According to Compass Point, this initial inspection formed the basis of the ultimate estimate provided by Y&A which was presented as part of Senecal’s expert disclosure.
Compass Point sought the exclusion of Senecal under Rule 702, arguing that (1) the reason he could not recall details of the estimate was because he did not prepare it, (2) he disregarded his own cost assessment methodology outlined in the Xactimate user manual, and (3) his opinions were unreliable and would not assist the trier of fact. Additionally, Compass Point sought exclusion of Senecal’s testimony as per Rule 703 arguing it constituted hearsay. Each of these grounds were disputed by Landmark.
The Court was not convinced that Senecal’s testimony should be excluded under Rule 703 as hearsay. The expert report disclosed by Senecal was not the same report which Compass Point repeatedly pointed out was not prepared by Senecal. Rather, an initial report was prepared by other Y&A consultants followed by nine more reports, and then ultimately the report which was disclosed, was in fact prepared by Senecal. While the Court appreciated Compass Point’s position that the ultimate report was based, in large part, on a previous report, it was not persuaded that Senecal should be prevented from testifying because his report also included estimates from previous reports. Rather, in this instance, it was evident that Senecal personally oversaw the project beginning in October 2020 which required his actual involvement in the mitigation and rebuild efforts, and he personally drafted the report submitted with his expert disclosures.
The Court was additionally not persuaded that Senecal’s testimony should be excluded under Rule 702. Senecal’s estimate was prepared using the software application Xactimate, which had been accepted by Courts as a reliable method of construction cost valuation. Although Compass Point raised concerns about Senecal’s failure to seek out independent cost estimates and/or verify the amounts by the insured according to the Xactimate user agreement/manual, the Court deemed these objections to be more related to the weight of Senecal’s testimony rather than its admissibility.
The Court was not persuaded that exclusion of Senecal’s testimony was warranted on the grounds that it would not assist the trier of fact. This argument, like the previous ones, relied largely on Compass Point’s assertion that Senecal’s opinions were unreliable. Since the Court did not find Compass Point’s reliability argument convincing, it also did not find that this made Senecal’s testimony unhelpful. Additionally, the Court noted that Senecal’s testimony was beyond the understanding of the average lay person and would assist the trier of fact in the action. Therefore, exclusion was deemed unnecessary.
Held
The Court denied Compass Point’s Motions to exclude the expert testimony of Sam Keske and Rob Senecal. Additionally, Compass Point’s Motion to Strike paragraphs 7 and 9 of the Keske Affidavit was deemed moot.
The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.
Key Takeaways
In the case regarding the damage caused to Compass Point Condominium as a result of Hurricane Sally, expert testimony played a crucial role. Sam Keske, retained by Landmark American Insurance Company, was found qualified despite challenges from Compass Point regarding his expertise and methodology. The Court deemed Keske’s qualifications sufficient, emphasizing his background in civil engineering and his experience investigating fenestration systems. Despite objections to the reliability of his opinions, particularly regarding the methodology employed by him and data accuracy, the Court ruled that these concerns affected the weight of Keske’s testimony rather than its admissibility, allowing for cross-examination to address any discrepancies. Additionally, the Court determined that Keske’s testimony would assist the trier of fact. Similarly, Rob Senecal, a building consultant for Young and Associates, faced challenges regarding the admissibility of his testimony from Compass Point, including concerns about his involvement in preparing the estimate and the use of Xactimate for construction cost valuation. However, the Court found Senecal qualified as an expert based on his direct supervision of the project and extensive experience in the construction industry. Objections to the reliability of Senecal’s testimony were once again deemed issues of weight rather than admissibility. Ultimately, the Court ruled that both Keske’s and Senecal’s testimonies would assist the trier of fact, emphasizing the importance of expert knowledge in understanding complex issues related to damage assessment and repair costs.
Case Details
| Case Caption: | Compass Point Condo. Owners’ Ass’n, Inc. v. Landmark Am. Ins. Co. |
| Docket Number: | 1:22cv257 |
| Court: | United States District Court, Alabama Southern |
| Citation: | 2024 U.S. Dist. LEXIS 32108 |
| Order Date: | February 26, 2024 |
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