This case centered on a disagreement over property insurance coverage between Bliv, Inc., a plastics production and manufacturing company, and their insurer Charter Oak Fire Insurance Company. Specifically, Bliv filed an insurance claim due to purported damage from a wind and hail storm that occurred on or around July 9, 2021(referred to as “the Event”). During the Event, Bliv, Inc (referred to as the “Plaintiff”) held a Commercial Insurance Policy provided by The Charter Oak Fire Insurance Company (referred to as “Charter Oak”). The policy was effective from April, 2021, to February, 2022 (referred to as “the Policy”). The Policy covered a commercial building situated at 1643 Lotsie Blvd. in St. Louis County, Missouri. The roof of the Property consists of a Thermoplastic Polyolefin (TPO) membrane as the primary water-proofing layer, with fiberboard and additional supporting materials directly below it.
Around July 21, 2021, the Plaintiff informed Charter Oak about the Event and asserted losses and damage to the property. Charter Oak initiated an investigation into the claim, enlisting a professional engineer from The Vertex Companies (referred to as “Vertex”) to inspect the property and identify the cause of the alleged loss and damage. Following three property inspections on August 31, 2021, September 21, 2021, and March 14, 2022, Charter Oak determined that the covered loss and damage to the commercial building, attributable to the Event, did not surpass the $2,500 deductible specified in the Policy. Furthermore, Charter Oak concluded that the claimed loss and damage to both the exterior and interior of the building were not a result of the Event or any other covered cause of loss.
During the legal proceedings, the Plaintiff identified professional engineer Brian Johnson (referred to as “Johnson”), as a retained expert witness and provided his “Storm Damage Report.” The Plaintiff relied on Johnson to present expert opinions and testimony regarding the alleged causes of the reported exterior and interior damages. Notably, Johnson conducted a roof inspection of the property on May 30, 2023, almost two years after the Event. He did not inspect the interior of the building during his on-site visit, and he did not engage in conversations with the building owner or any other employee of the Plaintiff. Additionally, Johnson did not review maintenance or repair records related to the property. Importantly, he admitted an inability to state with scientific certainty the cause of the alleged damage. Consequently, the Defendant argues that Johnson’s expert report, opinions, and testimony should be excluded because they lack a sufficient factual basis, he did not consistently apply accepted methodologies, and his opinions are characterized as mere speculation and conjecture.
Civil Engineering Expert Witness
Brian Craig Johnson holds a Bachelor of Science in Civil Engineering and a Master of Science in Civil Engineering, both from the University of Minnesota. Since becoming a registered Professional Engineer in Civil Engineering in Minnesota in 2004, he has leveraged his background across a range of project engineering and consulting positions. His areas of specialty encompass steel, precast, masonry, and wood construction applications. He gained this well-rounded expertise through roles as a Senior Construction Engineer for Lockheed Martin, as a government contractor. He is currently the Project Director of SRF Consulting Group.
Discussions by the Court
Federal Rule of Evidence 702 governs the admissibility of expert testimony, requiring the expert to be qualified and the testimony to aid the trier of fact. The proponent must prove its admissibility, and the Court, in its discretion, ensures the testimony is both relevant and reliable. Daubert factors, including testing, error rate, and general acceptance, guide the determination of reliability. The Court serves as a gatekeeper, separating reliable expert opinions from speculation. Disputes about an expert’s factual basis usually pertain to credibility rather than admissibility. Liberalized standards favor the admission of expert testimony, allowing scrutiny through the adversarial process. Exclusion is warranted only if the testimony is fundamentally unsupported and provides no assistance to the jury.
Johnson’s Storm Damage Report was deemed unreliable as it relied on insufficient data, leading to speculative conclusions. His delayed inspection, conducted almost two years post the Event, lacked an assessment of interior damage and interviews with the owner of the business or any of its employees. Additionally, he failed to review maintenance records or ascertain the property’s condition before, during, or shortly after the Event. This undermined the credibility of his opinions, as he couldn’t reasonably relate his findings to the property’s state during the Event, which made his report inadmissible under Rule 702 and Daubert standards.
Therefore, Johnson’s opinions regarding the interior of the property lacked any factual basis, let alone sufficient facts or data. His assertions about the cause of the alleged interior damage did not necessitate scientific, technical, or specialized training. The Defendant argued that Johnson’s opinion was mere speculation and conjecture, as he seemingly inferred interior damages solely from reading the Access Restoration Services (“ARS”)estimate and assuming the inclusion of “interior components” indicated Event-related damage. Furthermore, Johnson’s report and opinions, as per his own admission, were not grounded in reliable facts or data, particularly lacking personal observations and supporting evidence for the claimed damage being a result of the Event. Consequently, the Defendant contended that Johnson’s opinions failed to meet Rule 702’s requirement of “sufficient facts or data” and should be excluded from consideration.
Johnson’s exploration of potential explanations for the claimed damage is criticized for residing in the realm of speculation and conjecture. The lack of personal observations, evidence, or supporting data renders his theories unsupported. Citing Knepfle v. J-Tech Corp., 48 F.4th 1282, 1296 (11th Cir. 2022), the Court emphasized that his purported possibilities or theories lack any iota of support from personal observations, evidence, facts, or data.
Johnson’s factual conclusions about the alleged damage were heavily reliant on his status as an expert, his examination of photographs from ARS and Vertex, and his claim of deducing the events. Contrary to his belief, the facts and data gathered by ARS, Vertex, and Charter Oak starkly show the inaccuracy of Johnson’s assertion that there were no failed seams or flashings.
The assertion is made that Johnson’s testimony and Storm Damage Report would not be beneficial to a jury. Citing the standard set in Cole v. Homier Distrib. Co., 599 F.3d 856, 865 (8th Cir. 2010), an expert’s opinion should be excluded if it is fundamentally unsupported and unable to offer assistance to the jury. It is emphasized that an expert must substantiate their opinion, as presenting only an ultimate conclusion without analysis is deemed meaningless.
Johnson’s report is titled “Storm Damage Report,” implying a predetermined assumption that the building damage resulted from a storm, the very issue under consideration. Moreover, there is a lack of substantive evidence supporting his opinion that the damage was caused by the specific event. Johnson failed to identify any storm-created openings through personal observation, photographs, tests, or observations by any party who personally inspected the building.
Due to his minimal independent analysis and investigation, Johnson’s ultimate conclusion that the damage was caused by the Event is deemed meaningless and unhelpful to the trier of fact. The opinion lacks fundamental support, rendering it insufficient to provide any assistance to the jury.
The Plaintiff contends that weather data suggesting the possible presence of hail on the storm date supports Johnson’s approach in ruling out the possibility of damage from a previous or subsequent storm. However, it is highlighted that Johnson, despite acknowledging the absence of hail punctures or fractures on the roof and finding no evidence of anvil strikes, did not definitively observe such damage. The argument asserts that while Johnson systematically eliminated other potential causes for the damage, his conclusion attributing the damage to the storm remains speculative. This speculation arises from his failure to determine if any damage occurred before or after the storm, prior to his inspection. The Plaintiff argues that Johnson’s opinion regarding hail damage to the roof membrane does not lack a sufficient basis in facts and data to aid the finder of fact. The Plaintiff also contends that the complaints go to the weight of the evidence, not its admissibility.
Although the Plaintiff is correct in asserting that an expert can rely on information collected by others, the Court aligns with the Defendant’s perspective that total reliance is inadequate to demonstrate Johnson’s opinion would assist the jury in its fact-finding responsibilities. This agreement is reached, considering that Johnson’s report includes only a single photograph. Johnson did not conduct independent testing to support his opinion that the absence of physical damage to the roof membrane does not rule out hail damage. Instead, he based this conclusion on roofing literature, specifically marketing materials from a membrane manufacturer, asserting that fiberboard is more prone to hail impact damage. This reliance on unverified marketing literature is identified as a methodological failure in reaching his conclusions.
Similarly, Johnson conducted no independent testing regarding the interior of the building. The absence of concrete reasons for Johnson’s conclusion that there must have been interior damage from the storm, solely because it was included in the estimate, is highlighted. Despite Johnson’s high qualifications, the opinion fails to meet the requirements of Daubert and Rule 702. The deficiency in sufficient facts, data, and methodology is emphasized, and it is noted that even vigorous cross-examination regarding Johnson’s credibility cannot overcome these shortcomings. The report, based on an exterior inspection, photographs taken by others, and data deemed too remote in time or substance, is deemed insufficient for meaningful factual analysis.
Held
The Court reaches the conclusion that Johnson’s opinion fails to assist the trier of fact in understanding the evidence or determining a relevant fact. The opinion lacks a foundation in sufficient facts or data and does not adhere to the necessary reliable principles and methods mandated by Rule 702. Consequently, the Court grants the Defendant’s Daubert Motion to Exclude Expert Reports, Testimony, and Opinions of Brian Johnson. The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.
Key Takeaways
This case demonstrates the vital gatekeeping function Courts must serve under Daubert to scrutinize the reliability of expert witness testimony. The Court excluded Plaintiff Bliv’s expert, Brian Johnson, because his causation opinion lacked sufficient factual support and objective methodology. Most critically, Johnson grounded his conclusion that a hailstorm caused roof and interior damage almost entirely on third-party photographs, estimates, and marketing materials rather than his own inspection and testing. While qualified experts may reference outside sources, Johnson crossed the line into unreliable speculation by basing his view solely on external findings without verification. Moreover, the Court found his failure to review maintenance records or examine the building’s interior especially problematic given his admission that he observed no exterior hail damage. This inability to rule out alternative explanations undermined the reliability of his testimony under Daubert. Finally, Johnson’s reliance on interior damage estimates was misplaced since he never actually inspected inside the premises. By opining on evidence contradicted by his own limited investigation, his methodology proved unsound. Moving forward, this case demonstrates that expert opinions require thorough factual support and objective testing to clear Daubert’s reliability test. Subjective assumptions or theories fail to assist the trier of fact. Attorneys hoping to leverage expert testimony must ensure opinions rest on demonstrable “good grounds” before trial or risk exclusion.
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