This case arises out of Plaintiffs’ claim that structural damage to their home at 496 Southwood Drive in Madisonville, Kentucky, was caused by coal mine subsidence.
Val Smith and Gwen Smith obtained a homeowners’ policy from American Strategic Insurance Corp. (“ASIC”) and claimed that mine subsidence caused structural movement and cracking.
ASIC denied the claim based on the findings of NV5, a technical engineering consulting firm. In early 2024, the Smiths requested that ASIC reconsider its 2021 denial of their mine-subsidence claim.
ASIC reopened the claim and requested that NV5 perform a supplemental evaluation of the AML documentation. NV5 issued a 20-page supplemental report, again concluding that the Smith residence had not experienced mine subsidence. ASIC reaffirmed its denial on February 16, 2024.
The Smiths brought claims for breach of contract and bad faith under the common law the Kentucky Unfair Claims Settlement Practices Act (“UCSPA”).
Plaintiffs disclosed the expert reports of their causation witness, Harold R. Gaston, as well as the damages opinion testimony of David Garrigan. ASIC disclosed the causation opinion testimony of Norman R. Meeks and Thomas Smith to Plaintiffs.
Both parties sought to exclude the testimony of the opposing party’s experts.
Civil Engineering Expert Witnesses
Harold Ray Gaston received a B.S. in Civil Engineering from the University
of Kentucky in 1982.
He has more than 32 years of experience completing civil and structural design and years of experience investigating structural issues with residential and commercial buildings.
He also has provided engineering reports/ testimony in multiple legal cases.
Thomas Walker Smith has 16 years of civil/structural engineering design,
project management, and construction management experience with
commercial public building projects, pipeline projects, building mechanical
system projects and pump station projects.
Construction Expert Witness
David Garrigan is an expert in the field of delivering commercial, institutional, historic renovation, and specialty construction on projects as he works as a commercial builder and contractor with over 30 years of experience. He has been the Founder and Owner of Garrigan Building and Construction since 2013.
Geology Expert Witness
Norman Randal Meeks is a professional geologist with 26 years of consulting experience in environmental and geotechnical applications.
Discussion by the Court
1. ASIC’s Motion to Exclude Gaston and Garrigan
i. Whether Gaston’s Disclosures Satisfy Rule 26
ASIC did not dispute that Gaston’s opinions and the bases for them were ultimately disclosed through his letters, the reliance materials, and his deposition testimony. Rather, ASIC argued that Gaston’s expert disclosures were not themselves enough to satisfy the disclosure requirements of Rule 26(a)(2)(B). Plaintiffs argued that Gaston’s letters satisfied the disclosure requirements of Rule 26(a)(2)(B), but that even if they did not, the late disclosure of the reliance materials did not warrant exclusion under Rule 37.
After review of the record, the Cout found that Gaston’s deposition testimony was within the scope of opinions expressed in his expert reports.
On the other hand, ASIC’s complaint that the Plaintiffs did not actually disclose the materials Gaston relied on to form his opinions until the day before his deposition is well taken. The Court therefore must consider whether this violation was “harmless or is substantially justified.”
The testimony that Gaston intended to give at trial appears to be within the scope of the opinions disclosed in his report. There is no apparent risk that if Gaston testifies at trial, ASIC will be surprised by his testimony. Nor, as a result, is there a substantial likelihood that allowing Gaston’s testimony would disrupt trial. As for the ability to cure the violation, to the extent ASIC believes that it was prejudiced by Plaintiffs’ late disclosure, ASIC may move to compel additional discovery—but ASIC has not done so here or explained what additional information it might seek and so the Court will not order further discovery at this time.
ii. Whether Gaston’s Opinions Satisfy Rule 702
Next, ASIC contended that Gaston’s opinions, and by extension, Garrigan’s, did not “meet Rule 702‘s requirements of reliability and relevance.”
Here, Gaston testified that he based his opinions on, among other things, the “presence of a large mine void” beneath the Property in relation to its location, and the “pattern and extent of structural damage.”
Based on this data and his experience in similar cases, Gaston concluded that the damages to the Property were the result of mine subsidence and not soil or water issues alone.
ASIC has not explained how Gaston’s reliance on core samples, for example, is unreliable, given that the record shows it is also the methodology employed by Kentucky Environmental and Energy Cabinet’s Division of Abandoned Mine Lands Reclamation (“AML”) to determine the presence of a mine subsidence issue.
ASIC’s final contention that “Gaston’s opinions . . . would not assist the trier of fact” also fails. Essentially, ASIC argued that because Gaston cannot distinguish between damage documented at the Property before Plaintiffs purchased the Property or prior to the Policy period, his opinion would be unhelpful to the jury in determining causation. ASIC is correct that Gaston’s testimony is limited to “whether or not mine subsidence had” occurred and whether it had “affected the [Property].”
And because nothing in the record shows that Gaston determined when the alleged damage to the Property occurred, it is true that Gaston’s testimony does not resolve the ultimate coverage issue. However, Gaston’s testimony does address the threshold issue of whether the damage to the Property is of the type that the Policy covers—i.e., whether it was caused by mine subsidence or other excluded causes, such as earth movement. As a result, the relevancy requirement of Rule 702 is satisfied.
iii. ASIC’s Objections to Garrigan’s Opinions
With respect to ASIC’s request to exclude Garrigan’s opinions under Rule 37, although Garrigan’s “Scope of Work” letter was deficient under Rule 26, the Court found that ASIC learned that Garrigan visited the Property with Gaston and based his report on that visual inspection, his experience as a professional, his knowledge of the Kentucky Building Code, and Gaston’s specific recommendations regarding the foundation. Indeed, ASIC failed to identify any information that it was unable to discover through Garrigan’s deposition.
ASIC overstated the required qualifications and methodology for Garrigan’s opinions in case. Garrigan’s testimony in this case is limited to providing an estimate of repair costs for the damages Gaston attributes to mine subsidence. Garrigan need not be qualified as “an engineer, geologist, or subsidence specialist” to do so.
Rather, Garrigan is entitled to rely on Gaston’s opinions as to the cause of the observed damages, as well as the necessity of certain foundational repairs.
Likewise, while ASIC alleged that Garrigan’s “methodology amounted to walking around, making assumptions, and writing an estimate,” ASIC has not explained how this methodology necessarily renders Garrigan’s estimate unreliable. Garrigan’s methodology is based on his “personal knowledge and experience” estimating the cost of residential repair projects, as well as the engineering opinions of Gaston and other reliance materials discussed at his deposition on which Garrigan’s background knowledge of residential repair is based. Courts regularly admit damages testimony based on similar methodologies.
2. Plaintiffs’ Motions to Exclude Meeks and Smith
i. Plaintiffs’ Objections to Meeks’ Opinions
Plaintiffs sought to exclude the testimony of Meeks pursuant to Rule 702. First, they argued that “Meeks is unqualified to offer his opinions in this case.” Plaintiffs asserted that Meeks’ experience as a “career geologist that works only for insurance companies, state and federal agencies, and hospitals” is insufficient because he lacked certain specialized experience with coal mine subsidence.
Contrary to Plaintiffs’ assertion, Meeks is not required to have previously “worked for individuals like the Smiths. . . . given a deposition . . . . [or] written or published anything on coal mine subsidence” for him to be qualified to opine in this matter. Nor was Meeks required to have background knowledge of the coal industry. The Court held that Meeks’ opinions are based on his experience as a geologist—not a coal industry professional.
Second, Plaintiffs contended that Meeks’ opinions are unreliable because he relied on “upon the results he obtained in his [Standard Penetration Testing (‘SPT’)] methodology” to the exclusion of contrary evidence.
Contrary to Plaintiffs’ assertions, the record shows that Meeks had a sufficient factual basis for his opinions. In addition to the results of the SPT analysis, Meeks conducted a “visual inspection” and put in an “open records request . . . for records pertaining to historical mining activities that potentially occurred beneath the property.”
Further, Meeks did consider whether there was a void beneath the Property. Meeks found that the AML maps indicated rooms and pillars but disputed “that that room had collapsed” based on the results of his SPT analysis.
ii. Plaintiffs’ Objections to Smith’s Opinions
According to Plaintiffs, “Smith’s reports are inadmissible for three independent reasons”:
First, Smith is unqualified to offer his opinions in this case. Second, Smith’s opinions necessarily require full and complete determination of the existence of coal mine subsidence based solely on SPT soil analysis, without regard to other accepted testing techniques and/or methods to make that determination. This extraordinary analytical gap in his methodology invalidates each of his opinions. Third, Smith’s primary opinion- that the Smith home is not damaged by coal mine subsidence, is unreliable and fails to address the ‘specific practices’ of this case.
Based on his education and experience as a structural engineer, the Court found that Smith is qualified to offer his opinions that the alleged damage was consistent with structural movement attributable to soil behavior identified by Meeks and other construction-related issues.
Moreover, the fact that Smith relied on Meeks’ conclusions regarding subsurface conditions does not make Smith’s methodology unreliable under Rule 702. Smith testified that it is standard practice in subsidence investigation to rely on geologists’ findings in conjunction with visual inspections and analysis of other data, such as relative floor elevations, crack patterns, floor deflection, foundation behavior, and construction issues.
Nor have Plaintiffs shown that Smith’s conclusions were the result of an unreliable application of his methodology to the facts of the case. For instance, the fact that Smith did not return for a site visit after the damage to the Property worsened goes to the weight of his conclusions but does not make his opinion unreliable.
Held
- The Court denied ASIC’s motion to exclude the proposed opinion testimony of Harold Gaston and David Garrigan.
- The Court denied Plaintiffs’ motions to exclude the testimony of Norman Meeks.
- The Court denied Plaintiffs’ motions to exclude the testimony of Thomas Smith.
Key Takeaway
While Rule 26(a)(2)(B) requires a complete statement of all opinions to be expressed and the basis and reasons therefore, it does not require that a report disclose all information that might be elicited on direct examination to establish the admissibility of the expert opinion under Daubert.
Case Details:
| Case Caption: | Smith V. American Strategic Insurance Corp. |
| Docket Number: | 4:24cv79 |
| Court Name: | United States District Court, Kentucky Western |
| Order Date: | June 18, 2026 |
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