A district judge in Florida decided that a civil engineering expert witness cannot testify about the alleged defects of Knauf drywalls because his testimony was generic.
Defendants Knauf Gips KG and Knauf New Building System (Tianjin) Co. Ltd.’s (“KPT”) are foreign manufacturers accused of constructing defective drywalls that have been installed in homes across the country. Plaintiff Ina Helmick is the former owner of one such home.
Because of the commonality of facts, all federal litigation involving this drywall was designated as a multidistrict litigation and consolidated for pretrial proceedings in the District Court for Eastern Louisiana. Subsequently, the cases in the MDL were remanded and transferred to the relevant district. Plaintiff Ina Helmick’s case was assigned to the District Court for the middle district of Florida.
Howard Ehrsam P.E. is a civil engineer and president of Chinese Drywall Screening, LLC. He has worked in the fields of general contracting, land development, consulting and civil engineering design. He obtained his bachelor’s degree from the University of Florida in Civil Engineering in 1995. Ehrsam is a leading resource and advocate for property owners, contractors, attorneys, and real estate agents.
Shawn Macomber has a Master’s Degree in Construction Management from Louisiana State University. He has been certified as a Defective Drywall Consultant and Remediator as well as an inspector by several different certifying bodies. He is an ICC Certified Residential Building Inspector and the qualifying party for Healthy Home Solutions, LLC as a Louisiana State Residential Building Contractor.
First, Defendants sought to exclude in full the testimony and expert opinion of Ehrsam, a civil engineer and president of Chinese Drywall Screening, LLC. Plaintiff retained Ehrsam to opine on the common effects of Knauf Chinese drywall on the components of homes, including property within the home. According to Defendants, Ehrsam’s general opinions were unreliable, speculative, and otherwise unhelpful to the trier of fact.
Ehrsam Provided Generic Opinions
Ehrsam did not perform an individualized inspection or analysis of Plaintiff’s former property or any drywall allegedly within the property. Instead, he provided generic opinions on the following:
Whether defective Knauf drywall produces gasses and what gasses are emitted;
Whether defective Knauf drywall off gassing causes corrosion in the home and the extent of that corrosion;
Whether defective Knauf drywall causes damage to components in a home and which typical components (wiring, plumbing, a/c, etc.);
Whether defective Knauf drywall causes damage to personal property in the home and which items or contents are affected (computers, televisions, etc.); and,
Explain the difference between defective Knauf drywall and domestic made drywall and the off gassing that has been known to occur by each.
Ehrsam once acknowledged that there were other factors besides defective drywall that can cause corrosion or damage to property or items. In other words, he agreed that he cannot determine whether drywall caused damage in a particular Plaintiff’s home without an inspection.
Ehrsam’s generic testimony will not be helpful to the jury
The Court agrees with Defendants that this generic testimony will not be helpful to the jury considering the Plaintiff will have to prove specific and individual causation and damages at trial. As Defendants put it, “ a general opinion that KPT drywall emits gas and causes corrosion, without any correlation to the drywall or damage in Plaintiff’s property, is unhelpful and usurps the jury’s role as factfinder.” In conclusion, the potential to confuse or mislead the jury substantially outweighs the probative value of the generalized testimony.
Shawn Macomber
Defendants sought to exclude or at least limit the expert opinion and testimony of Macomber, who is a certified Chinese drywall inspector. Macomber inspected Plaintiff’s former property and estimated the cost of remediating the property. According to Defendants, “Macomber’s opinions are not relevant or helpful to the trier of fact because of the application of the economic loss rule” and “Macomber’s inspection and remediation cost opinions are unreliable and speculative.”
The Economic Loss Rule (ELR) is a legal doctrine that prevents parties from recovering economic loss in most tort actions unless the victim has also suffered personal injury or property damage.
Because of the significant limitation on damages under the economic loss rule, Macomber’s opinions on the cost of remediation are irrelevant and unhelpful to the jury.
Because of the significant limitation on damages under the economic loss rule, the Court held that Macomber’s opinions on the cost of remediation are irrelevant and unhelpful to the jury. As Defendants explain, “because Macomber’s report advances no opinion regarding damage to Plaintiff’s ‘other property,’ which is the only damage permitted pursuant to Florida’s economic loss rule, it provides no support for the damages Plaintiff may recover.”
Defendants also sought to exclude Macomber’s opinions and testimony regarding the presence of Defendants’ drywall in Plaintiff’s former home or the causes of damage to that home. Since the alleged flaws Defendants identified as to Macomber’s inspection and identification of the drywall concerned the weight to be given to the opinions and testimony, the Court denied the motion.
Held
The Court granted in part and denied in part the Defendants’ motion to exclude or limit the expert testimony of Howard Ehrsam and Shawn Macomber to the extent discussed above.
Key Takeaways:
Ehrsam cannot attach any degree of certainty to a finding that any uppercase KPT drywall impacted the property in question. In other words, a general opinion that KPT drywall emits gas and causes corrosion, without any correlation to the drywall or damage in Plaintiff’s property, is unhelpful.
Most of the damages Plaintiff seeks to qualify as economic damages are not recoverable in product liability tort claims. However, of these, only damages to ‘other property within the real property’ are recoverable. Macomber’s opinions on the cost of remediation were irrelevant and unhelpful to the jury
Plaintiffs, Julie Jenkins and James Gunn asserted claims under the Clean Water Act and various Georgia Environmental Statutes, including the Georgia Erosion and Sedimentation Act, arising from wholly past conduct that occurred in 2020. Plaintiffs alleged that “red clay” was deposited on Daniel Bruce’s farmland as part of the farm’s operations and that an unspecified amount of the red clay was alleged to have washed off the farm during rain events in 2020.
However, Defendants Daniel Bruce, Plateau Excavation, Inc., and Alif Transport, Inc., argued that the Complaint was premised on allegations of runoff from agricultural operations, despite the Clean Water Act specifically exempting such runoff from its statutory scheme. The Defendants also alleged that the Court lacked jurisdiction to hear Plaintiffs’ allegations as they concerned only “wholly past” actions.
Defendant Alif Transport filed a motion to exclude the testimony of Plaintiff’s expert Brian Wellington. Before the Plaintiffs retained Wellington, Alif’s defense counsel, Andrea Pawlak, had discussions with Wellington about serving as Alif’s expert. Moreover, attorney Pawlak asserted that she had known and worked with Wellington for at least fourteen years. The Court found that Pawlak’s broad discussions related to this case and working relationship on other cases with Wellington were insufficient to warrant Wellington’s exclusion as Plaintiffs’ expert.
Civil Engineering Expert Witness
Brian Wellington is a Senior Engineer and Partner with NewFields. Wellington has over 30 years of experience as a consultant in civil and environmental engineering. He holds a Ph.D. in Civil and Environmental Engineering from Syracuse University. He is a licensed Professional Engineer in five (5) states including Georgia.
Discussion by the Court
Attorney Pawlak elaborated on the communication she had with Brian Wellington with regard to this case. Attorney Pawlak stated that she had emailed Wellington initially about this case on November 9, 2022, and had given him a list of names to do a conflict check. Wellington confirmed that he had no conflicts. Attorney Pawlak’s November 14th billing records showed she had “conferred with Brian Wellington on the expert role” and had asked Wellington about an engagement letter; he had replied with a blank retention letter saying he was “looking forward to working with you too.” Pawlak never executed the retention letter.
Pawlak emailed Wellington twice in the following 13 months. First, in February 2023, Pawlak emailed Wellington about another case and mentioned the present case in passing. Seven months later, in September 2023, Plaintiffs retained Wellington. Pawlak contacted Wellington one further time in October 2023 about an unrelated case and mentioned the present case. Wellington replied but did not mention this case or his recent retention.
It was worth noting that Plaintiffs had received invoices totaling $8,889.08 for the work Wellington had done thus far. Wellington could not recall Pawlak ever retaining him for this case. Pawlak had never completed Wellington’s retention form. He added that the only information he received from Pawlak was not confidential. Pawlak informed Wellington “that it was a Clean Water Act case, the names of the parties, and the address of the property.”
In determining whether to disqualify a party’s expert . . . a district court may consider such factors as:
Whether the other party had a confidential relationship with the expert
Whether it was objectively reasonable for the other party to believe that it had such a relationship
Whether the other party did, indeed, disclose confidential information to the expert.
The Court noted Pawlak’s early communication with Wellington and the length of their professional history. Defendant argued that it was “objectively reasonable” to believe Wellington was Alif’s consulting expert based on the same. Plaintiffs countered Wellington had no memory or record of the Defendants providing him with any privileged or confidential information. Plaintiff asserted that Defendant never retained Wellington.
The Court, citing Wyatt v. Hanan, 871 F. Supp. 415, 419 (M.D. Ala. 1994), held that any substantial ambiguity regarding the existence of a confidential relationship between an attorney and an expert should be resolved against the attorney seeking to invoke the relationship.
Both parties agreed that Alif did not sign Wellington’s retention letter. Despite Wellington’s professional history as a consulting expert with Pawlak, Pawlak failed to from such a relationship in this case. The Court held that Pawlak had not shown she actually disclosed any confidential or privileged information to Wellington.
Held
The Court denied Defendant’s motion to exclude the testimony of Plaintiff’s expert Brian Wellington.
The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.
Key Takeaways:
Clear Communication: It’s crucial for attorneys to clearly communicate the terms of engagement with expert witnesses, including the completion of retention forms and formal engagement letters.
Formal Engagement: Merely discussing a case with an expert witness or exchanging general information may not be sufficient to establish a formal engagement.
Expert Testimony Disqualification: Courts may consider various factors, including the existence of a confidential relationship and the disclosure of privileged information, when determining whether to disqualify an expert witness.
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.
Plaintiff Jorge Martins brought a products liability action against Defendants, The Sherwin-Williams Company (Sherwin-Williams) and Anixter Inc.The Plaintiff, a welder and mechanic employed at a power plant, suffered significant injuries, including the loss of his right eye, when a can of aerosol spray-paint primer exploded in his face while he was painting a fabricated steel piece. The Plaintiff initiated legal proceedings against Sherwin-Williams, the paint can manufacturer, and Anixter, Inc., the distributor, asserting claims of strict products liability, negligence, and breach of implied warranty. The Plaintiff contended that the paint can was defectively designed or manufactured and lacked adequate warnings. In response, Sherwin-Williams argued that the Plaintiff had mistreated the can by striking it against a table.
The Plaintiff engaged Dale Cagwin as an expert engineer to provide insights on both design defect and failure-to-warn aspects of the case. Cagwin advanced the “failure-by-shaking” theory, asserting that the can’s dangerous and unreasonable design, characterized by a necked-in design and the use of double-reduced steel, led to its failure when shaken, ultimately causing the Plaintiff’s injury. According to Cagwin, the can’s design, considering the can’s circumference gradually narrows prior to its connection to the top and bottom portions of the can, increased its vulnerability to explosion during shaking, resulting in the harm suffered by the Plaintiff. Cagwin supported his opinion by referencing a 2011 report by Michael Fox (the “Fox report”), which concluded that cans made of single-reduced steel exhibited greater resistance to rupturing when dropped compared to those made of double-reduced steel.
Furthermore, Cagwin expressed the opinion that the warning label on the paint can was inadequate and failed to prevent the Plaintiff’s injury. According to him, the deficient warning label rendered the can defective and unreasonably dangerous, constituting an additional factor contributing to the Plaintiff’s injuries.
Defendants moved to exclude Cagwin’s testimony on the grounds that he was unqualified and his opinions were unreliable.
Civil Engineering Expert Witness
Dale J. Cagwin holds an Associate of Applied Science degree in Civil Engineering from Mohawk Valley Community College. Cagwin specializes in areas such as fire protection engineering, heating, ventilation, and air conditioning (“HVAC systems”), plumbing systems, wastewater treatment, compressed air systems, and industrial process systems. Cagwin is currently an Associate at Robson Forensic, Inc. and Fournier Robson & Associates, LLC. In this role, he provides investigations, analysis, reports, and testimony regarding failures and accidents involving mechanical systems and products. He also works to technically assist contractors and owners related to HVAC, plumbing, water treatment, and wastewater treatment systems.
Discussions by the Court
The Defendants contended that Cagwin lacked the qualifications to offer opinions on the issues outlined in his report. They argued that his academic and professional background, with a degree in civil engineering rather than mechanical engineering, did not align with the pertinent aspects of aerosol can design. The Defendants further asserted that Cagwin’s expertise in HVAC, plumbing, and fire protection was irrelevant to the design of aerosol cans as consumer products. Additionally, the Defendants highlighted Cagwin’s absence of educational and professional experience in the realm of warning labels on consumer products.
The Plaintiff responded by asserting that the Defendants were subjecting Cagwin to an “overly narrow test of his own qualifications.” The Plaintiff urged the Court to evaluate whether Cagwin’s “general engineering experience” was sufficient to qualify him to testify in a field where he may lack extensive direct experience. Additionally, the Plaintiff contended that the fact that Cagwin had not personally designed a spray-paint can should impact the weight rather than the admissibility of his testimony. The Plaintiff argued that Defendants had the opportunity to cross-examine Cagwin during the trial to scrutinize the extent of his qualifications.
The Plaintiff failed to address and counter the main point of the Defendants’ argument, which centered on the perceived lack of relevance between Cagwin’s educational and professional backgrounds and the subject matter he intended to testify about. The Plaintiff incorrectly asserted that the deficiencies in Cagwin’s experience only affected the weight of his testimony, not its admissibility. However, the Court noted that determining whether a witness possesses the necessary qualifications to testify on the subject matter in question is a matter of admissibility, not weight, as established in Hilaire v. DeWalt Indus. Tool Co., 54 F. Supp. 3d 223 (E.D.N.Y. 2014).
The assertion is made that Cagwin lacked the necessary qualifications to testify about the design of spray-paint cans. This conclusion is drawn from an examination of Cagwin’s overall experience and knowledge, considering both education and employment history. Notably, Cagwin acknowledged during his deposition that the design of aerosol cans fall within the realm of mechanical engineering, a field different from his degree in civil engineering. The absence of specific education is considered, but typically such gaps should be compensated by relevant professional or practical experience, which appears to be lacking in this case. The argument questions how Cagwin’s expertise in the broad category of “pressure vessels” qualifies him to opine on spray-paint can design, and the Plaintiff’s brief is criticized for not establishing the analogy between purported “pressure vessels” like vacuum cleaners, tires, and blimps and the aerosol can in question. Furthermore, during his deposition, Cagwin reportedly admitted that the pressure vessels he listed were structurally distinct from the aerosol can at issue in this case.
The argument contends that Cagwin is not qualified to testify about the adequacy of the label on the relevant spray-paint can. Aside from his admission during deposition that he lacks expertise in evaluating the sufficiency of consumer product warning labels, Cagwin’s lack of formal education or training specifically related to warning labels is highlighted. His only professional experience with warning labels is noted to be associated with his employment at a gas heat equipment company, where he explained hazards to employees responsible for designing the products’ warning labels. This experience is deemed too distant from warning labels to meet the “specialized knowledge” criteria set by Rule 702 and Daubert. The Plaintiff’s counterargument, stating the Plaintiff’s awareness of indicated dangers on the label, is deemed insufficient. Consequently, it is concluded by the Court that Cagwin lacks the necessary “scientific, technical, or otherwise specialized knowledge” required to serve as an expert witness, particularly in regards to both the design and labeling of spray-paint cans, under Rule 702(a) and Daubert.
Defendants argue that Cagwin’s “failure-by-shaking” theory lacks support as it relies solely on the Fox report, which they contend is irrelevant as it did not address shaking paint cans, particularly their explosion. They also highlight Cagwin’s failure to test his theory and his inability to elucidate why his suggested alternative design—a straight-walled can made from single-reduced steel—would be safer. In response, the Plaintiff contends that Cagwin drew upon other scientific literature, specifically the report by Robert L. Grunes (the “Grunes report”)(mentioned during his deposition but not in his official report), which allegedly investigated five spray-paint cans that exploded when shaken. The Plaintiff also cites instances where Courts opted not to exclude experts who did not conduct tests on their proposed alternative designs.
The Court emphasizes the requirement that an expert’s opinion must be substantiated by adequate facts and data, typically from peer-reviewed reports, as outlined in Daubert. Both parties acknowledge that Cagwin primarily relied on the Fox report. The Court determines that the Fox report is irrelevant and insufficient to support Cagwin’s “failure-by-shaking” theory. The Fox report specifically tested the impact of dropping and mechanical abuse on double- and single-reduced steel cans, not the routine effects of shaking steel cans. The Court deems it unreasonable for Cagwin to extrapolate results from a test that imposed extreme, artificial pressure on steel cans to support his theory about routinely shaking cans. Furthermore, Cagwin admitted during deposition that the Fox report did not replicate the failure-by-shaking scenario described by the Plaintiff. The Plaintiff’s main counterargument regarding the Fox report being peer-reviewed is dismissed, as peer review of an irrelevant study does not render it, or Cagwin’s reliance on it, sufficient to support his opinion on an entirely different theory.
The Plaintiff contends that Cagwin relied on the Grunes report, but the Court notes that this report was not identified in Cagwin’s expert report and was raised for the first time during his deposition. Regardless of the untimely disclosure, the Court finds the Grunes report unpersuasive and unreliable. This report, arising from Rust-Oleum Corporation’s pre-litigation correspondence with its supplier, lacked peer review and did not involve scientific testing. Instead, it collected consumer anecdotes reporting aerosol can failure from routine shaking. Given the report’s adversarial nature, absence of scientific testing, and lack of peer review, the Court deems it unreasonable for Cagwin to extrapolate from these anecdotes and conclude that necked-in cans are more prone to exploding from shaking.
The Court emphasizes that in situations where an expert’s theory lacks widespread support, as in this case, the expert should undertake independent testing, such as recreating the accident, to substantiate the theory, citing the Toomey v. Millercoors LLC, 86 F. Supp. 3d 202 (E.D.N.Y. 2015) case. The Court notes that the Fox and Grunes reports are the only third-party scientific literature Cagwin allegedly relied upon to support his “failure-by-shaking” theory. Based on this, the Court concludes that Cagwin’s theory lacks broad support, and therefore, he should have conducted his own testing to either confirm or refute his theory.
In a design-defect case like the present one, the Court notes that an expert bears a special responsibility to present an alternative design and demonstrate, typically through testing, that the proposed alternative would have been safer for the user in the specific accident under consideration. Referring to the Hilaire case, the Court emphasizes that the core of an expert’s report in such cases should involve a comparison of the utility and cost of the product’s design against alternative designs, a comparison that is typically substantiated by testing of the proposed alternative design. Cagwin’s efforts in the design-defect opinion were deemed incomplete. While he asserts that a straight-walled can made of single-reduced steel would likely have averted the Plaintiff’s injury, he falls short in substantiating this claim with evidence, including any testing. The Court emphasizes that Cagwin did not provide proof, even though he acknowledged possessing the capability to do so, to establish that his suggested alternative design would have been safer for the Plaintiff’s use. Consequently, the Court deems Cagwin’s alternative design theory entirely unsupported.
Defendants contend that Cagwin’s application of his warning label methodology to the case is flawed. They argue that although he stated warning labels should highlight non-obvious risks, he testified that the risk faced by the Plaintiff (can bursting from striking it against a table) was obvious. Additionally, Defendants find Cagwin’s opinion regarding the efficacy of additional warnings nonsensical, as the Plaintiff denies striking the can, and Cagwin’s causation theory does not involve such an action. Furthermore, Defendants highlight the Plaintiff’s inability to recall reading the warning label, leading them to assert that Cagwin’s claim that a different label could have prevented the accident is speculative. Notably, the Plaintiff’s brief does not address or counter the Defendants’ arguments on Cagwin’s warning label-related opinions, effectively conceding the Defendants’ points.
The Court underscores that an expert witness must consistently apply their methodology to the available facts and data. Cagwin, in this instance, did not meet this requirement. While his stated methodology involved including non-obvious risks on the paint can’s label, he failed to elucidate how this additional warning language would have prevented the Plaintiff’s injury, thus lacking a coherent theory of causation. Notably, Cagwin contradicted his own position by testifying that the addition of a warning label in this case was “immaterial.” This assertion is supported by the fact that the Plaintiff cannot recall reading the can’s label.
Held
The Court granted Defendants’ motion to exclude Dale Cagwin’s testimony and report for lack of qualifications and reliability. 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 illustrates several important requirements for expert witness testimony to be admissible under Federal Rule of Evidence 702 and Daubert. First, the expert must be properly qualified through education, training, and/or experience specifically related to the issues on which they intend to opine. Generalized expertise is not always sufficient especially coupled with the lack of professional and practical experience. Second, the methodologies and facts relied upon by the expert must sufficiently support their opinions and bear a logical connection to the issues in the case. An expert cannot extrapolate opinions on entirely different issues from unrelated research or data.
Additionally, in product liability design defect cases, experts have a special duty to present an alternative feasible design and show through testing that it would have prevented the accident. Speculative testimony that additional warnings could have made a difference is also unreliable when there is no evidence they would have been read or heeded.
In excluding the engineer’s testimony in this case, the Court scrutinized his qualifications, methodology and reliance on unrelated research, failure to test alternative designs, and speculative opinions regarding causation. This serves as a guidepost for the detailed analysis required to determine if purported expert opinions meet admissibility standards under Rule 702 and Daubert. Careful vetting of expert methodology and logic is necessary to ensure reliability and aid the fact-finder.
Archer Western – de Moya Joint Venture (the “JV”) filed a claim against Ace American Insurance Company (“ACE”), their insurer under a completed value builder’s risk policy, concerning the I-395/S.R. 836 Reconstruction/Rehabilitation Project in Miami, Florida. The claim pertained to bridge components constructed using low strength concrete that failed to meet project specifications. The JV sought coverage for rectifying and improving these elements. However, the policy in question excluded coverage for costs related to rectifying defective workmanship or materials. As a result, ACE denied the JV’s claim entirely.
The JV claimed that multiple batches of concrete from Batch Plant No. 1, termed the “Dry Batch Plant,” had an excess of fly ash. This led to reduced compressive strength and longer hardening times. They alleged a failure of the pressure relief valve on the plant’s fly ash silo between August 2020 and November 2020, although they only provided hearsay mentioning the valve being “clogged.” According to the JV, batches of concrete produced during this period were compromised due to excessive fly ash caused by an unspecified and undocumented overpressure condition in the silo. ACE disputed this theory put forth by the JV.
Plaintiff’ expert Mat Radlinski proffered thirteen opinions to substantiate its claims out of which eleven claims were deemed scientifically invalid, irrelevant to ACE’s liability determination, and were considered unhelpful for the fact-finding process by the Defendant.
Defendant’s Daubert motion seeks to exclude Radlinski from opining on:
That petrographic examinations indicated that the low compressive strengths and/or delayed hardening was due to high amounts of fly ash and low amounts of portland cement in the binder;
That the low compressive strengths and/or delayed hardening in the subject elements was not the result of non-compliant raw materials, weighing or batching errors, noncompliant fresh concrete/grout properties or concrete/grout placement, or consolidation or curing techniques utilized during construction of the subject elements;
That the incorporation of excessive amounts of fly ash occurred during batching at the dry batch plant;
That the combination of (1) the batch tickets for the subject elements indicating quantities of fly ash and cement consistent with the mix design and (2) significantly higher fly ash contents and significantly lower cement contents than the mix design as determined in the samples subjected to petrographic examinations suggests that a nominal quantity of cement batched at the dry batch plant consisted of partially cement and partially fly ash. Combined with the nominal amounts of fly ash per the mix designs, the subject concrete/grout contained significantly more fly ash and significantly less cement than per the mix design;
That the variability in compressive strengths and fly ash contents reported in the petrographic reports suggests that the degree of cement contamination by fly ash varied between and within the elements;
That the raw portland cement incorporated into the subject elements was damaged due to the apparent contamination by fly ash, which impaired the value and usefulness of the cement by compromising its strength gaining capabilities associated with hydraulic cementitious properties, making it no longer fit for its intended use in concrete/grout;
That the incorporation of the damaged cement in concrete/grout batches placed in the subject elements had detrimental effect on their physical properties, including compressive strength and rate of hardening, due to altered composition and microstructure of the binder;
That the compromised concrete and grout batches containing portland cement contaminated with excessive amounts of fly ash were not fit for their intended use, and made recovery of embedded steel reinforcement and adjacent concrete/grout batches in those elements infeasible;
That incorporation of concrete/grout batches exhibiting low strength and delayed hardening due to integration of damaged cement into the subject elements had detrimental effects on their structural capacity and rendered them not fit for their intended use and as a result, those elements were rejected and replaced;
That the concrete seal slab at center pier did not act as a groundwater barrier, as intended, which was reportedly due to low concrete strength, and required dewatering the pier over a period of several months and subsequent repairs;
That since the concrete placed in Pier 4-12 footing (which was cast in the same timeframe as the subject elements) that it may have contained excessive amount of fly ash and insufficient amount of cement, the resulting delayed concrete hardening may have contributed to formwork failure during concrete placement due to increased lateral formwork pressure associated with the hydrostatic head of fluid concrete.
Civil Engineering Expert Witness
Mat Radlinski, Ph.D., P.E. works as a Principal Engineer with Exponent, an engineering and scientific consulting firm he has worked for since 2009. He specializes in concrete and cement-based materials. Radlinski’s area of expertise includes analysis and optimization of concrete-mix design, characterization of chemical composition and physical properties of concrete, and evaluation of durability-related concrete failures including cracking, chemical attack, corrosion, and freeze-thaw damage. He is licensed in California as a Professional Civil Engineer, and has published more than twenty studies.
Discussion by the Court
Radlinski was hired by the Plaintiff to assess specific concrete/grout elements that showed signs of low strength or hardening decay. They sought his opinion on whether the materials used in [the selected concrete/grout] elements were damaged, and if yes, what resulting effects it had on those elements.
The Defendant raised multiple arguments against Radlinski’s testimony. Firstly, they argued that his opinions lacked adequate factual basis or supporting data. Secondly, the Defendant contended that Radlinski failed to utilize reliable scientific principles or methods in forming his opinions. Thirdly, they objected to Radlinski testifying about fly ash due to his admitted lack of expertise in concrete batch operations. Lastly, the Defendant asserted that Radlinski’s opinions should be deemed inadmissible under Federal Rule of Evidence 403. It’s important to note that while the Defendant contested Radlinski’s qualifications to testify about batch plants, they explicitly stated that their challenge did not extend to Radlinski’s expertise as a concrete specialist.
The Plaintiff asserted that the Defendant’s argument urged the Court to evaluate the evidence, which they deemed improper. They contended that the Defendant’s position heavily relied on deeming the supporting facts and data insufficient, thus rendering the methodology unreliable. However, the Defendant disagreed, stating that their motion did not seek to have the Court weigh the evidence but rather emphasized that Radlinski’s opinions lacked adequate factual basis or reliable methodology, as mandated by Federal Rule of Evidence 702. They concurred, to some extent, with the Plaintiff’s claim, asserting that there was no substance for the Court to assess since the opinions were founded on insufficient evidence. Additionally, they argued that the methodology was unreliable due to the inadequacy of supporting facts and data.
The Defendant contended that Radlinski’s opinions lacked sufficient factual basis for three main reasons: he relied on limited and selectively chosen data, failed to adequately address conflicting or alternative opinions, and disregarded facts concerning low strength concrete. According to the Defendant, Radlinski’s opinions were solely derived from a review of compressive strength, limited petrographic testing conducted by the plaintiff before the litigation, and a few photographs, which the defendant argued was an oversimplified representation of Radlinski’s sources. However, Radlinski’s declaration contradicted this portrayal, stating that he analyzed an extensive array of documents, including concrete batch tickets; field reports; mill certificates, data sheets and tests results for raw material; compressive strength tests reports; and petrographic examination of representative concrete samples. His declaration aligned with the content of his report.
The Defendant argued that Radlinski’s opinions regarding the Project elements amounted to mere supposition since not all elements underwent testing. However, Radlinski clarified that he couldn’t test elements that no longer existed. His report indicated that cast cylinder and core samples from several elements were submitted for petrographic examination between September 17 and November 3, 2020. Due to the unavailability of the dry concrete batch plant when Radlinski was retained, he couldn’t test the remaining elements. Despite this limitation, Radlinski formed conclusions by reviewing a combination of evidence related to these elements, employing an engineering methodology consistent with standard industry practices for similar forensic investigations.
Radlinski highlighted that no standard guideline exists within the concrete construction industry dictating the specific number of representative samples required for petrographic examination. The adequacy of samples depends on various factors like the size of affected concrete elements, economic factors, accessibility, overall variability of conditions or concrete properties in those elements, and variations in findings from petrographic examinations. He noted that when findings from petrographic examinations align consistently, fewer samples are generally needed to form a reliable opinion concerning the underlying cause of investigated concrete conditions, such as failure, low strength, or deterioration.
Radlinski’s inability to test each element does not bar his testimony, especially when he relied on what he deems to be reliable principles and methods.
The Defendant raised concern over Radlinski not directly sampling, testing, or independently evaluating any Project element, implying that his opinion might be weakened due to this lack of personal assessment. However, the Court citing Kilpatrick v. Breg, Inc., 613 F.3d 1329, 1337 (11th Cir. 2010), held that in the determination of causation, if the methodology used to derive conclusions is deemed reliable and sound, the absence of Radlinski’s direct involvement with the project elements does not fatally undermine the validity of his opinions. Therefore, Defendant’s challenge was better suited for a jury.
The Defendant contended that Radlinski’s report overlooked specific data and alternative theories regarding the cause of low-strength concrete. They pointed out that Radlinski allegedly disregarded data indicating ongoing concrete problems post the purported fixing of the pressure relief valve, extending to the “wet” batch plant. However, the Plaintiff disagreed, highlighting that Radlinski compared results between the “wet” and “dry” batch plants in his report and discussed these distinctions during his deposition. The core of the Defendant’s argument was that Radlinski allegedly failed to consider an alternative theory unrelated to the high fly ash content in the dry batch plant’s concrete issues. The Court found the defense argument unpersuasive, citing Radlinski’s explicit statement that there was no evidence of similar issues in concrete produced by the wet batch plant.
Defendant contended that Radlinski failed to sufficiently address other conflicting or alternative opinions as to the cause of low strength concrete.
The Plaintiff highlighted that Radlinski thoroughly considered alternative theories regarding the cause of low-strength concrete by extensively reviewing and analyzing all project records. This evaluation was evident in Radlinski’s report, notably commencing on page 20, where he specifically addressed alternative theories. He stated, “The following project records further indicate that the low strengths and delayed hardening of concrete/grout in the subject elements were not the result of non-compliant raw materials, weighing or batching errors, or non-compliant fresh concrete/grout properties . . .” Radlinski then proceeded to enumerate and explain how various types of evidence supported this finding. Radlinski initiated the preceding paragraph by stating that the presence of low strengths in the cylinder samples obtained from truck mixers and cured in laboratory conditions suggested that the low strengths of concrete/grout were unrelated to the techniques employed for placement, consolidation, or curing during the construction of the subject elements. The Court agreed with the Plaintiff and noted that the Defendant did not respond to Plaintiff’s argument in its reply.
The Defendant contended that Radlinski should be barred from testifying about the alleged infiltration of fly ash into the cement silo because he lacked expertise in concrete batch plant operations. However, Radlinski emphasized his concrete batch plant expertise based on his education, training, and professional experience. During his Ph.D. research at Purdue University, he visited multiple concrete batch plants, observed their operations, and personally conducted concrete testing on trial and production batches for bridge structures. He also highlighted previous investigations and report writing involving concrete-related losses, such as an incident where fly ash was mistakenly delivered into a cement silo, altering concrete composition. Additionally, over his nearly 15-year tenure at Exponent, Inc., Radlinski conducted numerous investigations related to concrete material failures or performance issues.
The Court held that based on Radlinski’s experience and expertise, he was qualified to opine as an expert.
The Defendant’s Rule 403 arguments regarding Radlinski’s opinions were deemed unconvincing by the Court. They contended that without a causation theory, Radlinski could only offer opinions on two of the eighteen claimed elements. However, Radlinski’s retention was specifically to assess whether the materials used in the subject elements were damaged and to detail the resulting effects, not necessarily to address causation. The argument lacked support as the Defendant did not present any authoritative basis in their motion to illustrate why Radlinski needed to opine on causation, especially when it was not within the scope of his retention, and how that would impact his current opinions.
The Court declined to address multiple arguments related to Florida law and the Plaintiff’s burden of proving causation which was initially absent from the Defendant’s motion. These arguments were excluded from consideration as they were raised for the first time in the reply and were not initially included in the Defendant’s motion.
The Court held that Defendant’s objections to Radlinski’s opinions were misplaced because they were better suited for cross examination. Defendant’s criticisms as to the data he relied on and the theories he considered went to the weight of his opinion, not its admissibility.
Held
The Court denied Defendant’s Motion to Exclude the testimony of Plaintiff’s expert Mat Radlinski since the challenges to his opinions were best addressed at trial, through vigorous cross-examination and the presentation of conflicting opinion testimony.
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 considering expert testimony, several key aspects emerged from the Court’s assessment. The scope of an expert’s opinion was a central point—aligning their testimony with their field of expertise and the specific purpose for which they were retained. Radlinski’s role, for instance, was to assess whether materials used in the subject elements were damaged and its resultant effects, not primarily to establish causation. The Court also emphasized that as long as an expert’s methodology is deemed reliable and sound, the absence of direct involvement with project elements doesn’t necessarily weaken the validity of their opinions. Challenges raised by the Defendant, such as questioning the data used or alternative theories considered by the expert, were noted to be more suited for cross-examination and pertained to the weight of the expert’s opinion rather than its admissibility. Additionally, the Court highlighted the importance of presenting arguments properly within the initial motion, as new arguments introduced in a reply may not be considered.
The lawsuit originated from a commercial property insurance claim brought by Plaintiff, 285 West 24th Street Family Company, LLC, under a surplus lines insurance policy issued by Defendant, United Specialty Insurance Company. The claim involved both visible and latent damages reported by the Plaintiff, believed to have occurred while the policy was active on May 27, 2020. The damages encompassed various issues, including water damage resulting from wind damage and heavy wind and rain.
On April 15, 2021, the Plaintiff initiated the case in state court after filing its Petition for Declaratory Relief. Plaintiff sought a declaration of the rights and/or obligations of the Parties under the “all risk” Policy of insurance covering the commercial property in Hialeah, Florida.
Subsequently, on February 4, 2022, the Defendant removed the case to federal court alleging diversity jurisdiction and countered with a claim seeking a declaration that the Plaintiff’s claim was not covered by the applicable insurance policy.
Defendant moved to strike the reports and testimony of Plaintiff’s expert Alfredo Brizuela, P.E. citing the untimely and improper disclosure of a new contradictory opinion which was also insufficient as per the Daubert Standard.
Civil Engineering Expert Witnesses
Alfredo Brizuela is a architectural, structural and civil engineer. His company, Al Brizuela Engineering specializes in construction science and management services as well as hurricane, building and design inspections. Alfredo Brizuela’s corporate resume spans over three decades and includes projects undertaken for Miami International Airport (M.I.A.), The Miami Herald, Metro-Dade Transit, Biltmore Hotel, Museum Tower, Freedom Tower, Jackie Gleason Theater, Miami Children’s Hospital, Jackson Memorial Hospital, Grand Bay Hotel, Wyndham Hotel, San Juan, Puerto Rico among many others.
Discussion by the Court
The operative scheduling order initially required expert witness disclosures by June 15, 2023. Both Parties jointly requested and were granted a 15-day extension until June 30, 2023, to finalize their expert witness summaries or reports. Plaintiff submitted expert Alfredo Brizuela’s report on June 22, 2023, indicating the type of loss as “water and wind damage.”
During Brizuela’s deposition on July 28, 2023, he contradicted his prior conclusion about heavy winds, stating disagreement with his earlier assessment. Subsequently, on August 1, 2023, after Brizuela’s deposition, Plaintiff disclosed a second report termed an “amended report” dated July 30, 2023. This secondary report was presented 30 days after the Rule 26 expert disclosure deadline. Defendant moved to strike Plaintiff’s first expert report (dated June 22, 2023) because it was procedurally deficient.
Defendant contended that Federal Rule 26(a)(2)(B)(i) necessitates a comprehensive statement encompassing all opinions a witness intends to express, along with their basis and reasoning. They argued that Plaintiff’s expert Brizuela failed to provide a complete statement as he subsequently amended the report, altering initial conclusions and expressing disagreement with the earlier opinion during deposition.
Defendant further asserted that this change in opinion lacked substantial justification since it contradicted the initial assessment, emphasizing Brizuela’s failure to justify or explain the critical error during the deposition. Additionally, Defendant highlighted the absence of any indication in the July 30th report about the existence of a prior opinion or report, adding to the contention that the amended report lacked completeness and coherence.
The Defendant argued that the amended report, dated July 30, 2023, should be stricken due to its untimeliness. The report was disclosed after the deadline stipulated by the Court’s Scheduling Order and subsequent to the deposition of expert Brizuela.
Under Federal Rule of Civil Procedure 37(c), the utilization of information or a witness during a motion or trial if the party failed to provide that information or identify the witness as required by Rule 26(a) or (e) is prohibited, unless the failure was substantially justified or deemed harmless.
The Court, in determining the admissibility of expert testimony or any expert-prepared report, engaged in a three-part evaluation. This evaluation included assessing whether: (1) the expert was adequately qualified to testify on the relevant matters; (2) the methodology employed by the expert in forming conclusions was sufficiently reliable; and (3) the testimony aided the trier of fact in comprehending evidence or determining a fact in question through the application of specialized expertise in scientific or technical matters.
In response, Plaintiff did not argue that the amended report was timely but emphasized that upon receiving it, their counsel promptly forwarded the report to the Defendant’s counsel on the very same day. Additionally, the Plaintiff asserted that during the deposition, their expert was fully prepared and capable of testifying regarding the amended causation report from July 30, 2023. Therefore, the Plaintiff argued that despite the untimely disclosure, it did not cause harm as the expert was readily available and prepared to discuss the amended report during the deposition.
An expert report may be supplemented, pursuant to Rule 26(e), when the party learns that the original disclosure was incomplete or incorrect. The Court also recognized that a party cannot abuse Rule 26(e) to merely bolster a defective or problematic expert witness report, citing Potiguar v. Caterpillar Inc., 1:14cv24277.
The Court found that the two reports provided by Plaintiff’s expert collectively formed his opinion. An expert is entitled to have multiple opinions. Any inconsistencies or contradictions in the two reports may be raised at trial during questioning. Defendant’s objection that the amended report was untimely was denied because it was harmless. The disclosure was made before the end of discovery and there could have been an additional deposition taken. Defendant’s objection that the amended report contradicts his first report was also denied without prejudice to be raised at trial.
Defendant further insisted that under the admissibility standards guided by Federal Rules of Evidence 702 and Daubert, the testimony and opinions presented by Plaintiff’s expert, Alfredo Brizuela, were recommended for exclusion from admission as evidence during the trial in this case. The pivotal factual matter central to the case revolved around determining the cause of the reported damage on May 27, 2020. In Brizuela’s report from June 22, he attributed the cause of loss to “wind and wind-uplift”. However, the subsequent July 30 Brizuela Report attributed the cause of loss to “water travel from the effects of the heavy rains.”
Brizuela conceded that he inspected the subject Property three years after the loss. It was also undisputed that at the time Brizuela inspected the roof, it had already undergone major changes, having had an epoxy-like coating applied to the affected areas of the roof to prevent further leaking. Defendant alleged that Brizuela failed to “specify or identify any specific areas in the roofing system with openings that the rainwater entered.”
Plaintiff contended that its expert Brizuela’s opinion met the Daubert standard, emphasizing that, akin to numerous opinions in similar cases, their expert’s assessment was grounded in a comprehensive array of supporting elements. These encompassed associated diagnostic tests, weather data, repair records, pre-suit public adjuster photos, estimates, reports, and other relevant information. According to Plaintiff, all these crucial elements were meticulously documented in the amended report, which included an extensive catalog of relied-upon information and data, accompanied by an excess of a hundred photographs.
The Court held that both of Alfredo Brizuela’s expert reports were extensive enough to be considered reliable and helpful to the trier of fact. While the Daubert framework is helpful to determine reliability, it does not mandate that every factor in Daubert be satisfied. The Court has broad discretion, not only in determining an expert’s reliability, but also in how to examine an expert’s reliability.
Though not specifically challenged, the Court found that Plaintiff’s expert, Brizuela, was deemed qualified, and his testimony was considered reliable and beneficial to assist the trier of fact. Acknowledging that any inconsistencies or shortcomings could be addressed during the trial, the Court determined that the assessment of credibility would fall within the trial’s purview. Consequently, the Court concluded that the Motion against Brizuela should be denied without prejudice, enabling Defendant to raise suitable objections if and when the disputed evidence is presented.
Held
The Court denied the Defendant’s Motion to Strike Alfredo Brizuela’s Expert Opinions and Testimony as well as the Defendant’s Daubert motion to exclude the testimony of Alfredo Brizuela.
Key Takeaways:
This order denied the Defendant’s motion to strike the Plaintiff’s expert witness, Alfredo Brizuela. The Defendant argued Brizuela’s testimony should be struck because his initial expert report was incomplete and contradictory to his later deposition testimony, and because his amended expert report was submitted after the deadline imposed by the Court’s scheduling order.
The Court found that the two expert reports collectively formed Brizuela’s opinion and that he was entitled to have multiple opinions. Any inconsistencies between the reports could be raised at trial during questioning. The Court also found the late disclosure of the amended report was harmless since it was provided before the end of discovery and the Defendant could have requested an additional deposition.
Regarding the reliability of Brizuela’s testimony under Daubert, the Court concluded that his opinions appeared sufficiently reliable and helpful to the trier of fact. The Court denied the motion to strike without prejudice, allowing the Defendant to renew objections at trial.
