On November 10, 2022, Kenneth and Phyllis Zerr perished in a house fire. Plaintiffs—the Zerrs’ children and Kenneth Zerr’s estate—alleged that the fire was caused by a defective dehumidifier produced by Gree.
Defendants sought to call an insurance adjuster, Steven Weitz, to testify as to the value of the home, and its contents, before and after the fire. Plaintiffs filed a motion to exclude his testimony.
Insurance Expert Witness
Steve Mark Weitz is a Licensed Independent Adjuster licensed in California with over 30 years of experience in analyzing loss claims, with a focus on residential fire losses.
Discussion by the Court
Plaintiffs did not challenge Weitz’s credentials. Rather, they argued that Weitz’s opinion should be excluded because he evaluated the “actual cash value” of the home and its contents, where Missouri law requires damages to be assessed using the “fair market value” of the property before and after the fire.
The question before the Court, then, is whether Defendants have shown that that it is more likely than not that Weitz’s “replacement cost less depreciation” testimony would “help the trier of fact to determine” the property’s “fair market value.”
Missouri Approved Jury Instruction (MAI) 16.02 defines “fair market value” as “the price that the property in question would bring when offered for sale by one willing but not obliged to sell it and when bought by one willing or desirous to purchase it but who is not compelled to do so.”
It is the Defendants’ burden to show that Weitz’s testimony is more likely than not admissible under Rule 702. However, Defendants produced no statute, jury instruction, or case law suggesting that testimony about “replacement cost less depreciation” would help the jury determine “fair market value” as defined in MAI 16.02. Instead, they cited cases from distinctly different contexts, in which courts interpreted “actual cash value” as “fair market value,” not cases in which courts allowed parties to establish “fair market value” by presenting evidence of “replacement cost less depreciation,” as Defendants propose. Moreover, they made the specious claim that Weitz “employed the same standard” as MAI 16.02, citing two parts of his report that relate to his valuation of the contents of the Zerrs’ home, not the structure.
Held
The Court granted Plaintiffs’ motion to exclude the testimony of Steven Weitz.
Key Takeaway
Defendants have failed to establish the admissibility of Weitz’s testimony under Rule 702 by a preponderance of the evidence because mischaracterization of the expert’s report is not a strong foundation for an
argument.
Please refer to the blog previously published about this case:
Fire Investigation Expert Was Allowed to Opine on UL Listing
Case Details:
| Case Caption: | Hillman V. Gree USA, Inc. |
| Docket Number: | 4:23cv830 |
| Court Name: | United States District Court, Missouri Eastern |
| Order Date: | May 26, 2026 |
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