Meadowbrook Shopping Plaza, LLC purchased a building at 3895 Metro Drive (“the Building”) in 1995. Around 2018, Mr. Khaldoun Abaji approached Meadowbrook about utilizing the Building for his business, a store called Kids Avenue. Abaji and Meadowbrook came to an oral agreement where Abaji paid Meadowbrook $800 a month for the space.
The parties agreed that Abaji stored his merchandise inside the Building but did not re-open his storefront before the events giving rise to this lawsuit. Additionally, the parties seemed to agree that the Building did not have electricity or gas throughout his tenancy. Less clear is whether Abaji could, or planned to, operate his storefront in the Building.
The events giving rise to this lawsuit began on December 13, 2021, when the Building was vandalized. Nationwide was Meadowbrook’s insurer at this time, so Meadowbrook submitted a claim for the damage. Nationwide determined that the damage totaled $132,586; however, it denied Meadowbrook’s claim because, in its view, the vacancy exclusion applied.
The second event precipitating the lawsuit occurred on July 1, 2023, when the Building caught on fire. There was no indication that the sprinkler system was on when the Jackson Fire Department arrived.
Again, Meadowbrook filed a claim with Nationwide. And, again, Nationwide denied the claim. This time, Nationwide explained that denial was appropriate because the Building did not maintain an automatic sprinkler system in complete working order at the time of the fire. Meadowbrook then filed this suit against Nationwide for denying its claims. Its causes of action include breach of contract and bad faith denial of insurance benefits.
Meadowbrook sought to exclude certain expert testimony by Richard W. Jones, Jr. and Adam Bomar.
Fire Investigation Expert Witnesses
Richard Jones has over 23 years of experience in the field of investigations for both the public and the private sectors. He also has prior service and training with local fire districts and the Louisiana Office of State Fire Marshal, specializing in the field of fire and explosion investigations.
Jones has completed numerous courses related to fire and explosion investigations sponsored by the National Fire Academy, Maine State Police, the International Association of Arson Investigators, and other local organizations. He earned a degree in Fire Science from Columbia Southern University and is an experienced lecturer on fire and explosion investigations.
Adam Bomar is a Nationwide fire loss investigator. He is currently a Fire Lieutenant and Deputy Fire Marshall with the Mountain Brook Fire Department in Mountain Brook, Alabama. He is also currently the Operations Manager and Fire Investigator with Crain & Associates, Inc. in Birmingham, Alabama.
Discussion by the Court
Richard Jones, who has been designated as an expert in forensic fire investigations, visited the scene after the fire. He noticed that the “post indicator valve” which supplied water to the sprinkler system was in the “shut” position. Adam Bomar, a Nationwide fire loss investigator, also visited the scene and noticed rust on the wrench that operated the post indicator valve. This led Bomar to opine that the valve had not been turned on for an extended period.
Meadowbrook did not challenge the qualifications of either Jones or Bomar. Instead, it argued that parts of their testimony should be excluded as either irrelevant or unreliable
Meadowbrook first argued that Jones’ testimony should be struck as a legal conclusion. It then asserted that the International Existing Building Code, which Jones relied on in forming his opinion, is irrelevant because the insurance policy at the heart of this case did not require Meadowbrook to follow this Code. Finally, Meadowbrook maintained that Bomar should be excluded from testifying to statements he heard from an unnamed Jackson Fire Department officer because such statements are unreliable hearsay.
A. The Court Denies the Motion to Exclude Jones’ Entire Testimony
The Court disagreed that Jones’ testimony “is nothing more than a legal conclusion” which is why his entire testimony will not be struck. Meadowbrook is free to object at trial should his opinions veer outside the scope of expert testimony.
B. Jones May Testify to the International Existing Building Code
Meadowbrook challenged the International Existing Building Code referenced in Jones’s report.
The City of Jackson adopted the 2018 edition of this Code in 2020. Meadowbrook maintained that any testimony related to this Code should be excluded because Nationwide’s policy did not require it to follow the Code. Nationwide responded that Meadowbrook’s disagreement relates to the weight of Jones’s testimony, but not its admissibility. The Court agreed.
According to Jones, the City of Jackson adopted the Code, which requires certain changes to the use of a structure be submitted for approval. Meadowbrook has not yet rebutted this premise, which will be for the jury to decide. Meadowbrook is free to cross-examine Jones on his report and his assertions relating to the Code. Ultimately, the jury is free to decide what weight—if any—to give Jones’s testimony. The Court denied Meadowbrook’s motion on this ground.
C. Bomar May Not Rely Upon Statements from an Unidentified Officer
Finally, Meadowbrook sought to exclude the purported assertion by an unnamed Jackson Fire Department officer that it is not the Department’s policy to shut off the post indicator valve at the scene of a fire. It asserted that any opinion and testimony made in reliance on this statement should be excluded because it is wholly unreliable.
Nationwide responded that Bomar, as an expert, may rely on hearsay in forming the basis of his opinion so long as other experts in his field would do so.
The parties agreed that Bomar did not record the name of the Jackson Fire Department officer who allegedly made this statement. Neither party has learned this officer’s name through the course of the litigation.
The statement made by the unidentified Jackson Fire Department officer, if offered to prove that the Department would not have turned the post indicator valve off, is textbook hearsay. Nationwide has failed to show that some exception applies to this rank hearsay. The Court held that incorporating the testimony into Bomar’s report does not transform the statement to one which the jury can receive.
Held
The Court granted in part and denied in part Meadowbrook’s motion in limine to exclude certain expert testimony by Richard W. Jones, Jr. and Adam Bomar.
Key Takeaway:
- Question relating to the bases and sources of an expert’s opinion affect the weight to be assigned that opinion rather than its admissibility and should be left for the jury’s consideration.
- Daubert’s “gatekeeping function” requires the Court to examine the relevancy and reliability of all proffered expert testimony.
Case Details:
| Case Caption: | Meadowbrook Shopping Plaza, Llc V. Nationwide Assurance Company |
| Docket Number: | 3:23cv3093 |
| Court: | United States District Court, Mississippi Southern |
| Order Date: | January 08, 2025 |
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