Expert Witness Profiler

Category: Construction Expert Witness

  • Insurance Expert Allowed to Opine on Sales Tax Depreciation Practices

    Insurance Expert Allowed to Opine on Sales Tax Depreciation Practices

    Plaintiffs Melissa Pitkin and Dan Grout own a home together in Healdsburg, California. They hold a homeowner’s insurance policy from State Farm, policy number 57-C4-6752-1 (the “Policy”), which covered certain losses to their home and all of its contents. The Policy included the “main policy form” (FP-7955, CA) as well as a “homeowners endorsement form” (FE-3422). Subject to the Policy’s terms, conditions, and exclusions, the Policy included “Coverage B – Personal Property” limits of $506,574, and other various special limits. Regarding settlement of Coverage B claims, the Policy provides for settlement of damaged personal property in several ways, including actual cash value (“ACV”), market value, and replacement cost (“RC”).

    On August 20, 2020, the Walbridge Fire burned down the Plaintiffs’ home. Having lost their home and personal possessions, the Plaintiffs tendered a claim to State Farm for their losses under the Policy. State Farm accepted the claim and adjusted their losses pursuant to the Policy’s terms, which stated that the plaintiffs are entitled to recover ACV for their personal property losses. On December 16, 2022, and January 24, 2023, the Plaintiffs received partial payments from State Farm for their personal property contents losses. State Farm also sent the Plaintiffs “loss payment worksheets” that showed their ACV benefits for their personal property.

    For all items of property where sales tax was applicable, State Farm depreciated sales tax in calculating ACV.

    The Plaintiffs filed this class action, alleging that State Farm violates California law by depreciating sales tax as a component of RC when calculating ACV.

    State Farm sought to exclude the opinions of Plaintiffs’ experts, Greg J. Regan, David Melzer and Eugene Peterson while Plaintiffs filed a motion to exclude the testimony of State Farm’s primary expert witness, Dr. Duane L. Steffey.

    Accounting Expert Witness

    Greg Joseph Regan is a partner in the Forensic Consulting Services Group of Hemming Morse, LLC, and is a licensed CPA in California.

    Get the full story on challenges to Greg Regan’s expert opinions and testimony with an in-depth Challenge Study.

    Insurance Expert Witness

    David Melzer has worked in the insurance industry since 2011 in various specialist capacities. He worked for Travelers Insurance from 2013 to 2020, where he held positions including adjuster, technical specialist, and claims manager.

    After that, he started his own public adjusting firm, called Property Claims Consultant, Inc., where he handles first and third-party property claims, including personal property claims.

    He has held the position of President of Property Claims Consultant, Inc. since he started the firm in November 2020. He has “significant experience in processing and analyzing personal property insurance claims” and “experience working with industry-standard software used to process and track personal property claims, including Xactimate or XactContents.”

    Want to know more about the challenges David Melzer has faced? Get the full details with our Challenge Study report.

    Construction Expert Witness

    Eugene Peterson built his first home in 1974 – and has been a home builder, remodeler, and restoration contractor for over 35 years.
    He is a Past President of the Utah Home Builders Association and the Greater Salt Lake Home Builders Association. He is the CEO of Advise And Consult, Inc., an expert witness & consultant for restoration, personal property & construction related matters in the United States and Canada. Peterson has facilitated peer group meetings for Business Networks, Inc., and was an
    advisor, consultant & certified trainer for Xactware, Inc. (construction estimating software) for several years. He also actively performs insurance appraisals as an umpire or appraiser.

    Discover more cases with Eugene Peterson as an expert witness by ordering his comprehensive Expert Witness Profile report.

    Statistics Expert Witness

    Dr. Duane Leon Steffey holds a Bachelor of Science in history and mathematics, a masters in statistics, and a Ph.D. in statistics from Carnegie Mellon University. He has served as a consulting statistician for over thirty years, with a “breadth of applications in engineering, health, environmental science, and civil justice.”

    He is an elected Fellow of the American Statistical Association since 2009, as well as an Elected Member of the International Statistical Institute since 2015.

    Gain a comprehensive understanding of Duane Steffey’s qualifications and casework history with his Expert Witness Profile report.

    Discussion by the Court

    1. Greg Regan

    Regan indicated that he was “asked to provide a methodology to calculate available classwide damages.” State Farm produced an Excel file known as the “Combined Pitkin Dataset.”

    If a claim “involves more than a few items or is not settled during a first contact” the claims personnel may “utilize the XactContents® tool to assist in valuing lost property for claim settlement purposes.” Third party entity Verisk owns the XactContents® tool.

    To create the Combined Pitkin Dataset for this litigation, third-party Verisk first created a report containing data regarding personal property claims during the class period with an XactContents® actual cash value estimate.

    Regan clarified that while his “methodology to calculate damages” was laid out in his initial report, the supplemental report was meant to apply the methodology to the Combined Pitkin Dataset. Regan then proposed two alternative “scenarios” for calculating damages. Under the first scenario, damages would equal the amount of Sales Tax Depreciation applied to a claim, capped by any RC benefits available under the policy. Under the second scenario, Regan allocated Sales Tax Depreciation proportionally by comparing the claimant’s remaining RC benefits to the total recoverable depreciation and then applying that percentage to the amount of Sales Tax Depreciation.

    The crux of State Farm’s motion to exclude concerns the reliability of Regan’s opinions. Specifically, State Farm claimed Regan’s opinion hinges on (1) unreliable data, (2) unreliable identification of class members, and (3) incompatible and unreliable damages “scenarios.”

    a. Reliability

    State Farm first argued that Regan’s reliance on the Combined Pitkin Dataset lacked the “foundation” necessary to survive a Daubert motion.

    State Farm’s challenge is best understood as an attack on the assumptions underlying Regan’s analysis—mainly, that XactContents® is an accurate tool for measuring damages in this case.

    Regan indicated that he relied on State Farm’s own records, testimony from State Farm employees, “validation exercises,” “extensive testing,” and “adopting the more conservative input for purposes of measuring damages” when a disagreement in the data arose.

    The Court concluded that Regan has established by a preponderance of the evidence that his opinion is reliable and admissible, subject to cross-examination and presentation of contrary expert testimony.

    According to State Farm, Regan’s “three new groupings of purported class members (not reflected in the class definition or his prior opinions) produce unreliable and patently incorrect results.”

    However, Regan “organized his damage calculations in three groups to reflect the different circumstances of those groups.” While each group may present different factual circumstances, Regan “applied the same methodology to calculate damages across all groups.”

    State Farm finally challenged Regan’s two damages scenarios as unreliable and invalid. Regan sufficiently explained in his Report and Supplemental Report the reason for having two damages “scenarios,” how he reached those scenarios, and the methodological basis for each.

    b.  Untimely Opinions

    State Farm argued in the alternative that Regan’s opinions in the Supplemental Report should be excluded as untimely and improper new opinions.

    Regan’s Supplemental Report was disclosed two months after the Rule 26 disclosure deadline and less than one month before the rebuttal deadline. Because its own expert, Steffey, opined that the Supplemental Report “substantially revised Regan’s opinions,” State Farm urged that the Court find his “new” opinions as untimely under Rule 702. Plaintiffs responded by pointing out that the parties jointly agreed to extend fact discovery and adjust the pretrial schedule to allow for State Farm to produce the Combined Pitkin Dataset. As a result, Regan produced his Supplemental Report on September 25, 2025—a date agreed upon by the parties in their joint request to adjust the pretrial schedule.

    2. David Melzer

    a. Methodology

    Melzer indicated that he was “hired to provide opinions on . . . the frequency of personal property claims with State Farm, the ascertainability of these claims through available databases, and whether the claims of Plaintiffs Pitkin and Grout fall within the proposed class.”

    Melzer’s proposed methodology to estimate the total number of potential class members is as follows. To estimate the total volume of personal property replacement claims for State Farm in California from 2015 to the present, he analyzed the number of claims in a submarket: San Diego. He chose San Diego as a representative example because claims throughout California would “typically be consistent with personal property claims made in San Diego.”

    Using that data, Melzer estimated the total number of insurance claims in San Diego across all insurers by dividing the number of Travelers’ claims by its 3.68% market share (a percentage market share that is available on the California Property and Casualty Market Share Report published by the California Department of Insurance).

    He then consulted the California Property and Casualty Market Share Report (the “Market Report”) issued by the California Department of Insurance from 2015-2023 and determined that State Farm consistently has “over 8.5% of the Property and Casualty Insurance Market in California.”

    Melzer goes on to explain that based on his familiarity with Xactimate and XactContents®, he believes that “given the detailed data that insurance companies maintain and given the flexibility and power of Xactimate/XactContents, it is [his] opinion that State Farm can create a report, or export the necessary data, that will allow for the identification of all personal property insurance claims where State Farm depreciated the taxes. From that report, Plaintiffs will be able to identify the members of the Class.”

    b. Class Member Identification

    State Farm maintained that the Court must exclude any class identification opinion from Melzer, as he “has not purported to identify class members” and instead “conjectures that someone else can.”

    It similarly urged that Melzer’s “conjecture that someone else can reliably and feasibly identify specific class members based solely on the Combined Pitkin Dataset also lacks sufficient foundation, conflicts with Melzer’s other admissions, and is therefore inadmissible.”

    Plaintiffs contended that Melzer did, in fact, “analyze the capabilities of the Combined Pitkin Dataset to ascertain the members of the class.”They highlighted that Melzer provided a “detailed analysis of the capabilities of XactWare products, including XactContents.”

    “While State Farm may disagree” with this analysis, Plaintiffs concluded, “that is not a basis for the Court to exclude Melzer’s conclusions based on his extensive experience.” The Court agreed.

    c. Depreciation Standard Industry Practices

    State Farm similarly sought to exclude Melzer’s opinions on “sales tax depreciation practices for the insurance industry as a whole.”

    Plaintiffs responded by highlighting Melzer’s “more than a decade of experience regarding the adjustment of insurance claims,” including working for Farmers, Travelers, and during his “nearly five years as a public adjuster working with multiple insurers from 2020 to the present.”

    Much of that time was spent working with XactWare products, including XactContents®, which Plaintiffs believe render him qualified to “offer opinions as to the industry standard for adjustment of contents insurance claims.”

    As with his other opinions, the Court found that it is more likely than not that Melzer meets the four requirements. While a fact finder may conclude that State Farm’s sales tax depreciation practices are not what Melzer claims them to be, that does not render his opinion and testimony inadmissible.

    d. Rule 26 Testimony

    Plaintiffs acknowledged that “they, and State Farm, are precluded from offering undisclosed expert opinions.” But they maintained that “Melzer’s opinions as to the typicality of insurers not depreciating sales tax were explicitly disclosed in his report.”

    No party may offer undisclosed expert opinions at trial. The Court held that the example in the preceding paragraph was disclosed and will not be excluded.

    3. Eugene Peterson

    a. Methodology

    Peterson concluded that “XactContents® software contains global and line-item settings that allow an insurance company to apply depreciation based on one of three methods: 1) percentage, 2) by a fixed dollar amount, and 3) by age with an adjusted condition.” He opined, “the software allows complete control over how depreciation is calculated, so each insurance company can set its policies for depreciation without needing to customize the software. From the software’s perspective, a user can determine what line items are to be depreciated and what is to be depreciated in each line item, e.g., sales tax.”

    b. Opinions on XactContents® Data Extraction

    State Farm “did not dispute Peterson’s ability to testify regarding what the XactContents® tool is and how it may be used.” Instead, it sought to exclude Peterson’s “feasibility opinion—that the Combined Pitkin Dataset in this matter can be used by someone else to reliably identify class members or calculate damages.”

    The Court found that Peterson sought to offer a relatively narrow opinion with respect to the structure and abilities of XactContents® to assist Plaintiffs in calculating damages in this case. He has significant experience working with XactContents®. 

    4. Duane Steffey

    Steffey was hired by State Farm to “evaluate the basis and foundation for Regan’s, Melzer’s, and Peterson’s opinions” at class certification. State Farm also disclosed Steffey as a rebuttal expert to Regan’s supplemental report.

    a. Class Membership

    Plaintiffs took issue with how Steffey criticized Regan’s identification of 41,153 class members in his Supplemental Report.

    State Farm countered that Steffey’s rebuttal report criticizing Regan’s “new approach to identifying class members and calculating damages” was “based on his knowledge and education in statistics, previous experience, and the materials he reviewed.”

    The Court agreed with State Farm that exclusion is not warranted. Steffey engaged in a thorough review of the materials provided to him, including all exemplar claims identified by Regan. He then identified at least one “exemplar” Plaintiff who potentially lacked injury and damages, thus raising questions about Regan’s methodology for identifying class members.

    b. Damages Calculations

    Plaintiffs also sought to exclude Steffey’s criticism that Regan’s damages “scenarios” are “unreliable.”

    The Court found that Steffey raised important questions about Regan’s methodology that go to the heart of this dispute—questions regarding standing, injury, and how to identify class membership. His opinions are relevant. They can be tested. And they may assist the trier of fact in resolving the question of damages and standing in this case.

    c. Data Fields Interpretation

    Plaintiffs sought to exclude Steffey’s claim that some of Regan’s “descriptions of certain data fields in the Combined Pitkin Dataset ‘have not been corroborated by anyone with requisite knowledge.’”

    The Court found that Steffey properly critiqued Regan’s assumptions in the Combined Pitkin Dataset, a topic which he, as a statistician, may opine. That Steffey recognized he cannot judge the accuracy of the fields is a different question than identifying Regan’s failure to corroborate the Dataset. 

    d. Substantial Revision Opinion

    Plaintiffs finally sought to exclude Steffey’s opinion that Regan’s supplemental report represents a “substantial revision” to his analysis in the original report.

    Credibility is always an issue for the jury to consider, and Steffey’s opinion about the “drastic” change “underscores the unreliability of Regan’s approach generally.”

    State Farm is entitled to present this opinion as an attack on Regan’s credibility at trial. In sum, the Court will not exclude Steffey’s testimony.

    Held

    The Court denied the parties’ motions to exclude, as each request raises issues of credibility—a question reserved for the factfinder—instead of admissibility.

    Key Takeaway

     Plaintiffs must show it is more likely than not that: “(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert [has reliably applied] the principles and methods to the facts of the case.” Applying this standard, State Farm argues that Plaintiffs have not met their evidentiary burden.

    Case Details:

    Case Caption: Pitkin V. State Farm General Insurance Company
    Docket Number: 3:23cv924
    Court Name: United States District Court, California Northern
    Order Date: June 30, 2026
  • Construction Expert Allowed to Opine on the Cause of the Leak

    Construction Expert Allowed to Opine on the Cause of the Leak

    This is a subrogation action resulting from a water loss that occurred in January of 2021 at a single family home located in Cranston, Rhode Island.

    Defendant filed a motion to prevent one of Plaintiff’s experts—Thomas F. Zarek—from testifying as to the source of the damage at trial.

    Construction Expert Witness

    Thomas F. Zarek has significant experience in the construction and remodeling of homes and commercial businesses.

    Zarek has been responsible for a variety of forensic engineering assignments, on average between 200 and 300 assignments per year. These have comprised not only heating system failures, but freeze loss examinations, piping and plumbing systems, water and wastewater distribution systems, fire investigation, and failures of commercial and residential systems.

    Get the full story on challenges to Thomas Zarek’s expert opinions and testimony with an in-depth Challenge Study.

    Discussion by the Court

    Defendant argued that: (1) Zarek did not have the relevant plumbing experience to determine whether Defendant’s actions caused the leak; and (2) he did not understand how a fuel usage analysis works, and has not conducted one himself, even though he relied on one in his report.

    Here, Defendant failed to show that Zarek is either unqualified as a plumbing expert or that the materials that he relied on in forming his opinion are unreliable. As his CV indicates, Zarek possesses decades of relevant experience conducting plumbing investigations. Additionally, as Plaintiff pointed out, Zarek’s alleged inability to understand how the formula underlying a fuel usage analysis is calculated does not relate to whether he improperly relied on this information in reaching his conclusion.

    Separately, the Court acknowledged that Plaintiff asked Zarek to conduct a subsequent report after he performed an earlier, inconsistent one during this litigation.

    While Zarek’s original report noted that the freezing weather might have caused damage to the plumbing here, his updated report ruled this out as a potential option.

    As with Zarek’s knowledge of the source material underlying his expert report, Defendant can remedy this issue on cross-examination and by impeaching Zarek with his prior report, rather than seeking its exclusion altogether.

    Held

    The Court denied without prejudice Defendant’s Daubert motion in limine to prevent Thomas Zarek from testifying about the cause of the leak.

    Key Takeaway

    Zarek’s alleged inability to understand how the formula underlying a fuel usage analysis is calculated does not relate to whether he improperly relied on this information in reaching his conclusion. For example, an expert should be able to rely on a weather forecast in order to conclude whether it was a nice day outside without needing to explain to someone the science underlying the forecast itself.

    Case Details:

    Case Caption: Certain Underwriters at Lloyd’s Lond. v. Sonner Plumbing, Inc.
    Docket Number: 1:24cv258
    Court Name: United States District Court, Rhode Island
    Order Date: June 30, 2026
  • Law And Legal Expert Not Allowed to Opine on the Remodeling Project

    Law And Legal Expert Not Allowed to Opine on the Remodeling Project

    This matter arises from damage to Plaintiffs Jacob and Suzanne Kuehn’s home caused by a water loss in December 2023.

    The Kuehns sued Safeco Insurance Company of America (“Safeco”) alleging breach of contract, violation of the Consumer Protection Act (“CPA”), bad faith, and violation of the Insurance Fair Conduct Act (“IFCA”).

    In advance of trial, Plaintiffs identified construction expert David Zaborowski while Defendant disclosed two rebuttal expert witnesses: construction rebuttal witness Nathan George and claims-handling rebuttal witness Joseph Hampton. 

    Plaintiffs filed a motion to exclude the testimony of both George and Hampton while Defendant sought to exclude the testimony of Zaborowski.

    Construction Expert Witnesses

    David Zaborowski has 23 years of experience in the insurance restoration industry as a general contractor. He specializes in property insurance estimating and appraisal work.

    Want to know more about the challenges David Zaborowski has faced? Get the full details with our Challenge Study report.

    Nathan T. George is an active contractor with 25 years of continuous hands-on experience gained through both his carpentry work in the field and his involvement in running a successful restoration construction company.

    Get the full story on challenges to Nathan George’s expert opinions and testimony with an in-depth Challenge Study.

    Law And Legal Expert Witness

    Joseph D. Hampton is a retired attorney with 40 years of experience in insurance law, representing both insurers and insureds and provides expert testimony on insurance law, including contractual and extracontractual liability and claim handling.

    Discover more cases with Joseph Hampton as an expert witness by ordering his comprehensive Expert Witness Profile report.

    Discussion by the Court

    a. Joseph Hampton

    (1) Hampton’s Testimony About the Remodeling Project

    Plaintiffs argued that Hampton’s assertions that their remodeling project would have occurred even absent the December 18, 2023, water damage are not based on sufficient facts and rely on speculation.

    Defendant and Hampton pointed to a series of Plaintiffs’ email correspondence to support the assertion that the remodel was planned before the water damages, but all of the referenced communications occurred after the date of water damage. The Court agreed with Plaintiffs that communications with potential vendors starting in 2024 (ranging from approximately one to over eight months after the loss date) are not a basis to opine that Plaintiffs intended to remodel their kitchen in 2023.

    (2) Hampton’s Testimony About the Cabinets

    Plaintiffs argued that Hampton’s testimony that Plaintiff Jacob Kuehn “did an honorable thing” by removing cabinet costs and must have concluded the policy did not cover them, must be excluded because it is unsupported speculation.

    Defendant did not assert that Hampton offered rebuttal when he opined that Plaintiff Jacob Kuehn’s actions were “honorable,” and that he must have concluded the cabinets were not covered by the insurance policy. Moreover, Plaintiffs are correct that Hampton conceded that he does not know why Plaintiff Jacob Kuehn removed the cabinet estimate. Therefore, the Court agreed that Hampton is offering speculative testimony, which must be excluded.

    (3) Hampton’s Testimony About Xactimate Pricing

    Plaintiffs asserted that Hampton’s testimony about Plaintiffs’ use of Xactimate pricing from September 2025 is unreliable because Hampton “admitted that he does not have the qualifications to go ‘line by line through an Xactimate estimate, deconstruct it, analyze it, and come up with his own opinions,’” and that “such work falls ‘within someone else’s expertise and purview.’”

    However, Hampton critiqued the use of Xactimate from September 2025, because the insurance policy requires repair costs to be determined “shortly following the loss,” which, in this case, was in December 2023. The Court held that Hampton’s opinion is reliable because he bases it off the insurance policy and Zaborowski’s report. Any critique of Hampton’s inability to go line by line through the estimate goes to the weight of the evidence he presents and is for the jury to decide.

    (4) Hampton’s Testimony About the Insurance Fair Conduct Act (“IFCA”) Letter

    Plaintiffs argued that the Court should exclude Hampton’s testimony about the IFCA notice because it offered improper rebuttal, improper legal conclusions, and is barred by Federal Rule of Evidence 408.

    First, Plaintiffs asserted that “Hampton opined that Plaintiffs’ IFCA notice letter was sent ‘simply to enable an IFCA suit.’” While Hampton will not be allowed to speculate as to Plaintiff’s motivation for sending the letter, the Court held that Hampton’s opinion on this subject constitutes proper rebuttal.

    Second, the Court found that Hampton’s testimony about the IFCA is almost entirely devoid of legal conclusions, with the exception of one opinion that must be excluded. Hampton asserted that Plaintiffs were not inviting negotiation because “the sole purpose of an IFCA notice letter is to enable a later suit pursuant to the IFCA,” rather than offering an opinion that, based on his experience handling claims, letters of this nature are not used to invite negotiations.

    In his rationale for his opinion that the opposing expert is wrong that Defendant did not negotiate in good faith, Hampton is essentially concluding that the law rebuts opposing testimony.

    (5) The Scope of Hampton’s Testimony

    Plaintiffs sought to exclude testimony from Hampton that they argued “exceeded permissible expert boundaries” because they offered opinions on the reasonableness of conduct and legal conclusions. The Court partly agreed.

    (a) Reasonableness and Case Law Conclusions

    Regarding coverage for the kitchen cabinets, Hampton opined, “That part of the damaged building was the lower cabinets, not the entire set. It is a reasonable claim handling practice, and permitted in Washington, to determine the extent of damage to property, and only pay for repair or replacement of the actually damaged portion where the policy language permits such allocation.”

    There are two issues with the proffered opinion. First, it deems the claim-handling practice “reasonable,” which opined on the ultimate issue of the reasonableness of Defendant’s conduct and is not allowed. Second, the statement offered a legal conclusion—namely, that Washington law permits Defendants to only pay for the damaged cabinets, but not the upper, undamaged cabinets—which is also not allowed.

    However, Hampton can still testify as to generally accepted claims-handling practices in relation to the cabinets.

    Hampton opined that “it is not unreasonable for a field adjuster to schedule an inspection a mere five days after initial contact” and later stated that “it is common for an insured’s contractor’s estimate to lack the details necessary for a reasonable ‘apples to apples’ comparative analysis of the competing estimates.”

    Hampton can testify about what the common practice is or about typical scheduling timelines, but he cannot offer an opinion as to the reasonableness of such acts.

    Regarding the IFCA letter that Plaintiffs sent, Hampton’s opinions that “no reasonable person” would accept the terms in the letter, and that the letter was not an attempt to “open a reasonable settlement discussion” offer conclusory opinions on the ultimate issue as to whether Defendant acted in bad faith. As such, they are not allowed.

    The remainder of Hampton’s opinions are allowed, as they are based on his experience in legal practice and handling claims.

    (b) Legal Landscape in Washington

    Plaintiffs argued that Hampton’s statements referring to the legal landscape in Washington should be excluded.

    Although Hampton goes on to cite the Revised Code of Washington, the Washington Administrative Code, and a Washington Supreme Court case, this testimony is based on his experience handling insurance claims.

    (c) Statutory Law

    Similarly, Plaintiffs argued that certain assertions Hampton made should be excluded because they make legal conclusions based on “statutory law.” The Court disagreed.

    Although Hampton mentioned the Revised Code of Washington, but this is in reference to the basis of Hampton’s opinion that “the sole purpose of an IFCA notice letter is to enable a later suit pursuant to the IFCA,” meaning that Plaintiffs were not “inviting a discussion to amicably resolve a dispute.” 

    (d) Breach of Contract

    Hampton stated, “the opposing expert says that industry standards require an insurer as part of paying to replace damaged property with like kind and quality to replace undamaged property if necessary to achieve a uniform appearance when replacing damaged property, unless there is clear policy language to the contrary.”

    The report goes on to rebut the opposing expert’s assertions by stating that “Here, there is policy language to the contrary, and the allocation is allowed.” Accordingly, this testimony does not offer a legal conclusion.

    (e) Catchall

    Finally, Plaintiffs sought to exclude all remaining testimony from Hampton. Plaintiffs base this request on the assertion that “because so much of his testimony is excluded under the rules, Hampton’s remaining opinions are unhelpful and inadmissible.”

    Because the Court denied many of Plaintiffs’ requests and found that Hampton’s testimony would still be helpful, the request to exclude the remainder of Hampton’s testimony was denied.

    b. Nathan George

    Plaintiffs argued that George’s opinions are not grounded in sufficient facts, reflect unsupported assumptions, lack reliable application, and exceed the permissible scope of rebuttal testimony.

    (a) George never visited Plaintiffs’ property and instead relied on photos

    First, Plaintiffs argued that because George never visited Plaintiffs’ property and instead relied on photos taken after the mitigation work, his opinions are not grounded in sufficient facts or data. However, an expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed.

    (b) George’s conclusions regarding damage to the subfloor are unsupported assumptions, not reliable analysis

    Next, Plaintiffs argued that George’s conclusions regarding damage to the subfloor are unsupported assumptions, not reliable analysis. George made it clear that his opinion regarding mold on the floors and treatment are based off his years’ long knowledge, as well as his annual re-review, of the Environmental Protection Agency (“EPA”) Guidelines.

    Additionally, Plaintiffs argued that because George did not review Defendant’s estimate and instead relied on Plaintiffs’ expert’s description, George did not reliably apply any methodology to facts. But, George offered the opinion that, despite Zaborowski’s issue with the method, Defendant’s decision to combine the sketch of the kitchen and dining room, label it all as “kitchen,” and aggregate the square footage is proper and does not change the result. This opinion is developed from his extensive experience writing estimates based off square footage for flooring. It is standard rebuttal testimony because he responds directly to an opinion that Plaintiffs’ expert provided.

    (c) George’s opinion as to what would have caused damaged subfloor should be excluded

    Plaintiffs argued that George’s opinion as to what would have caused damaged subfloor, and how he evaluated whether the subfloors were damaged, should be excluded. However, Zaborowski’s opinion was that it was necessary to remove the subfloor. As part of George’s rebuttal testimony, it is only logical for him to explain why he believes it is not necessary, which includes an explanation as to why, in his professional experience, he did not believe the subfloor was damaged.

    (d) George’s reliance on EPA standards for mold remediation is not rebuttal testimony

    Lastly, Plaintiffs argued that George’s reliance on EPA standards for mold remediation is not rebuttal testimony. But, again, in order to explain why he disagrees with Zaborowski’s conclusion, George has to be able to explain why. And the basis for his opinion as to mold on floors is based off his years’ long knowledge, as well as his annual re-review of the EPA guidelines.

    c. David Zaborowski

    Defendant argued that Zaborowski’s testimony is not reliable because it is not based on sufficient facts or data. In support, Defendant points to the following: the insurance policy agreement, Plaintiff Jacob Kuehn’s repair cost range, the fact that Zaborowski gave his estimate roughly a year after the house was repaired and did not consider the actual costs paid, and the fact that he included costs that were not ultimately in the final repair cost. But Zaborowski made it clear that he is “tasked to consider what [Plaintiffs] should have been paid on the claim, not what they paid to have the repairs done.”

    And a central issue in this case is whether Defendant acted reasonably and in good faith when asked to pay for the repairs to Plaintiffs’ home. Those questions must be viewed through the lens of what was reasonably owed at the time of denial.

    Moreover, what Defendant omits in its brief, and does not respond to in its reply, is that Zaborowski used the Xactimate software to calculate repair costs—software that George uses “all the time,” and which Hampton states estimators “typically” use.

    Zaborowski’s methodology is sound, and the Court is more concerned with that than with the correctness of his conclusion.

    Given that the Court found Zaborowski’s methods reliable, any questions as to his total estimate and reasons for arriving at the final number go to the weight of his credibility. They can be tested through cross-examination and are for the jury to decide.

    Rule 403 Challenge

    Defendant argued that Zaborowski’s testimony is prejudicial and will confuse the jury. Defendant may disagree that some of the line items in Zaborowski’s estimate should not have been included, but Zaborowski was tasked with determining what Defendant should have paid Plaintiffs, not what they did pay them. Ultimately, this is a dispute that should be decided by the jury.

    Moreover, this testimony will not mislead the jury, as Defendant will have the opportunity to point out any line items that were not in the actual repair cost, and Zaborowski will be able to explain why he believes they should have been—a concept that is not overly complicated for a jury to decipher.

    Held

    • The Court granted in part and denied in part Plaintiffs’ motion to exclude Joseph Hampton’s and Nathan George’s testimony.
    • The Court denied Defendant’s motion to exclude David Zaborowski’s testimony.

    Key Takeaway

    Reliability requires the court to assess whether an expert’s testimony has a reliable basis in the knowledge and experience of the relevant discipline. In making its reliability determination, a court is concerned with the soundness of the methodology, not with the correctness of the expert’s conclusions.

    Case Details:

    Case Caption: Kuehn V. Safeco Insurance Company Of America
    Docket Number: 2:24cv1785
    Court Name: United States District Court for the Western District of Washington
    Order Date: May 08, 2026
  • Geology Expert Was Allowed to Opine on Subsurface Conditions 

    Geology Expert Was Allowed to Opine on Subsurface Conditions 

    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.

    Want to know more about the challenges Harold Gaston has faced? Get the full details with our Challenge Study report.

    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.

    Get the full story on challenges to Thomas Smith’s expert opinions and testimony with an in-depth Challenge Study.

    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.

    Discover more cases with David Garrigan as an expert witness by ordering his comprehensive Expert Witness Profile report.

    Geology Expert Witness

    Norman Randal Meeks is a professional geologist with 26 years of consulting experience in environmental and geotechnical applications.

    Get the full story on challenges to Norman Meeks’ expert opinions and testimony with an in-depth Challenge Study.

    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
  • Construction Expert Allowed to Opine on Causes of Project Delay

    Construction Expert Allowed to Opine on Causes of Project Delay

    P&E is a Kansas-based contractor who entered into a design-build contract with WI RNG Hub North, LLC, for a renewable natural gas production facility in Gillet, Wisconsin (the “Project”) to be completed by February 27, 2023. The Project included construction of two buildings to house process equipment for producing renewable natural gas from dairy cow manure and dryer equipment for producing a fiber by-product. To complete the Project, P&E entered into subcontracts with various companies, including Crescent Power, Bayland Building, Inc. (“Bayland”), and Air Liquide Advanced Technologies U.S., LLC (“Air Liquide”). P&E retained Crescent Power as a material supplier to deliver electrical-power equipment to the Project location, including switchboards and MCCs.

    The Project faced several schedule delays and was completed 175 days behind schedule. Relevant here, P&E alleged that Crescent Power failed to deliver the MCCs on time under their contract. P&E alleged that Crescent Power’s late delivery, combined with its other subcontractors’ contractual failures, significantly delayed the Project’s overall com.

    P&E retained Christopher J. Smocke to review the Project, including its five-page critical path schedule, and offer opinions on the causes of the Project’s delays and resulting damages to P&E. Regarding Crescent Power, Smocke opined that it delivered the MCCs 69 days late, is 41% at fault for the first 140 days of the delay to the Project’s completion, and is responsible for $762,415 of P&E’s total damages.

    Crescent Power filed a motion to exclude Smocke’s opinions under Rule 702 of the Federal Rules of Evidence.

    Construction Expert Witness

    Christopher J. Smocke has worked as a Senior Project Manager, Project Executive, Vice President, and President in various construction companies, for general contractors, and for construction owner’s representative firms. In these roles, he managed budgets and organized schedules for several multi-million-dollar projects. He has also conducted informal mediations where he allocated responsibility between multiple parties in construction project disputes. Further, Smocke has been retained as an expert in three arbitrations and two lawsuits, offering opinions on construction delays and resulting damages.

    Want to know more about the challenges Christopher Smocke has faced? Get the full details with our Challenge Study report.

    Discussion by the Court

    A. Qualifications

    First, Crescent Power argued that Smocke lacked the requisite qualifications to offer his opinions. Crescent Power recognized that Smocke has over 50 years of experience in construction project management, but argued that he lacked specific experience or education in conducting forensic schedule analyses and allocating fault pursuant to Association for the Advancement of Cost Engineering (“AACE”) standards.

    The Court concluded that P&E met its burden to show that Smocke is sufficiently qualified based on his significant experience in construction project management.

    B. Reliability of Methodology

    Crescent Power argued that Smocke’s opinions are ipse dixit because he did not conduct a forensic analysis of impacts on the Project’s critical path pursuant to one of the AACE or Society of Construction Law’s prescribed methods.

    In his report, Smocke identified which delays he opined affected the overall completion of the Project based on his review of the case and his experience. For example, he discussed how Crescent Power’s late delivery of MCCs impacted the Project’s overall completion because the switchboards could not be powered up without them, holding up work in both Project buildings and all systems for renewable natural gas production. As P&E pointed out, his discussion mirrors both AACE and Society of Construction Law principles on disruption and delay to construction projects.

    Crescent Power also identified what it considered as “blatant errors” in Smocke’s opinions to demonstrate that his methodology is unreliable. To begin with, Crescent Power argued that Smocke added days to the calendar to reach his opinion that 140 days of delay should be apportioned between Crescent Power, Bayland, and Air Liquide. P&E asserted that Crescent Power simply misunderstood Smocke’s testimony regarding the 140 days. Crescent Power also argued that Smocke failed to consider other delays not caused by Crescent Power in his analysis, but P&E asserted that Smocke correctly considered other delays.

    The Court is concerned, however, with Smocke’s methodology for allocating fault and damages between P&E’s subcontractors. To do so, Smocke took the number of days he determined that Crescent Power missed its required delivery dates (69) and divided that number by the total of late delivery days he determined between Crescent Power, Bayland, and Air Liquide (168) to allocate a percentage of fault to Crescent Power (41%) and ultimately conclude that Crescent Power is responsible for $762,415 in damages.

    C. Sufficiency of Underlying Facts & Data

    Crescent Power also challenged the sufficiency of the facts and data underlying Smocke’s opinions. To begin with, Crescent Power argued that Smocke’s deposition testimony contradicted his opinion assigning 69 late delivery days to Crescent Power. This argument is similar to Crescent Power’s concern over Smocke’s assignment of 140 Project delay days between Crescent Power, Bayland, and Air Liquide. Likewise, the Court reached a similar conclusion and determined that Crescent Power’s concern goes to weight as opposed to admissibility and can be sufficiently addressed on cross-examination.

    Second, Crescent Power again argued that Smocke’s opinion is unreliable because he did not conduct a formal Critical Path Methodology (“CPM”) analysis to establish that the MCCs were on the critical path to the Project. CPM is a a term of art for a method of scheduling and administering construction contracts, and its common use in resolving disputes over excusable-delay claims. The Court also rejected this argument.

    Third, Crescent Power challenged Smocke’s allocation of fault and damages between P&E’s subcontractors on sufficiency grounds two ways: (1) he failed to independently evaluate P&E’s alleged damages; and (2) his allocation was purely speculative and unhelpful to the jury. The Court had already determined that P&E failed to establish that Smocke used a reliable methodology to allocate fault and damages between P&E’s subcontractors.

    Held

    The Court granted in part and denied in part Crescent Power’s motion to exclude the testimony of Christiopher Smocke.

    Key Takeaway

    P&E failed to address Smocke’s formula for allocating fault entirely, let alone explain how it is reliable under Daubert. Because P&E failed to establish this methodology is reliable, the Court did not not permit Smocke to testify to his opinions allocating fault and damages between P&E’s subcontractors based on his self-created formula.

    Case Details:

    Case Caption: P&E Solutions, LLC V. Crescent Power Systems, Inc.
    Docket Number: 6:24cv1209
    Court Name: United States District Court, Kansas
    Order Date: May 08, 2026
  • Construction Expert’s Building Budget Report Excluded

    Construction Expert’s Building Budget Report Excluded

    Plaintiffs’ home was damaged by a fire on June 21, 2021. At the time of the fire, Plaintiffs had an insurance policy with State Farm.

    Plaintiffs alleged that Defendant State Farm failed to abide by the policy which allowed, at the insureds’ option, to either have the damage repaired or pay for the damage. Plaintiffs alleged that State Farm, without their consent issued payments to Plaintiffs and the mortgage holder rather than allowing Plaintiffs to decide whether to accept payment for the damage or repair the property.

    Defendant sought to exclude the testimony of Pete Hennessey, Plaintiffs’ expert witness pursuant to Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure, arguing that Hennessey’s report is insufficient.

    Construction Expert Witness

    Peter Hennessey has been building homes for over 25 years. He has personally built over three hundred residential homes and is one of the most respected home builders in the industry. 

    Get the full story on challenges to Pete Hennessey’s expert opinions and testimony with an in-depth Challenge Study.

    Discussion by the Court

    Hennessey stated that it is his opinion that it would be too risky and too expensive for the type of home to be rebuilt, to put it on top of the then existing foundation after the fire, which was not engineered to current standards.

    The basis of the facts or data considered by Hennessey included an examination of the site, obtaining estimates from subcontractors and preparing a detailed building budget report, which he set out in an exhibit attached to his report.

    However, the Court found that Hennessey’s report is entirely inadequate under Rule 26 standards. The most critical requirements of the Rule–the basis and reasons for the expert’s opinions and the data or other information considered–are totally lacking. 

    In other words, the mere submission of subcontractor estimates told Defendant nothing about the substance of Hennessey’s calculation of the damages and estimated repair costs and left it open to unfair surprise.

    Although the surprise and prejudice could be cured by taking Hennessey’s deposition, the Court declined to require this of Defendant because doing so would shift the burden of disclosure onto Defendant whereas this burden is placed squarely on Plaintiffs by the Rule. Plaintiffs elected to designate Hennessey as an expert who may be used to provide evidence under Federal Rule of Evidence 702, 703 or 705, and then failed to provide the requisite information required by Rule 26(a)(2)(B).

    However, Plaintiffs were granted additional time to comply with Rule 26(a)(2)(B) by submitting an expert report prepared and signed by Hennessey in accordance with the requirements of the Rule, if they wished to offer Hennessey as an expert witness.

    Held

    The Court granted Defendant’s motion to strike the testimony of Pete Hennessey.

    Key Takeaway

    Plaintiffs have offered nothing to establish that the failure to comply with Rule 26(a)(2)(B) was substantially justified. The surprise and prejudice to Defendant as a result of the failure are significant and have not been cured to date through supplementation or otherwise.

    Case Details:

    Case Caption: Kossmeyer V. State Farm Fire And Casualty Company
    Docket Number: 4:23cv1397
    Court Name: United States District Court, Missouri Eastern
    Order Date: April 30, 2026
  • Construction Expert’s Testimony on Financial Ability Excluded

    Construction Expert’s Testimony on Financial Ability Excluded

    This case arises out of the Parties’ failed construction contract. Plaintiff Fifth Side Lodging, LLC is an entity formed for the sole purpose of developing a Fairfield Inn and Townplace Suites hotel in Edina, Minnesota. Rise is a commercial contractor specializing in “multifamily and hospitality modular construction projects.”

    In May 2019, Fifth Side and Rise began negotiating the Project in which Rise would serve as general contractor in Fifth Side’s construction of a hotel in Edina, Minnesota. The parties met numerous times for purposes of understanding each other’s financial health, general business practices, history in the industry, and overall ability to timely execute the contemplated Project. 

    On June 1, 2023, Rise and Fifth Side executed a construction contract (Agreement). Fifth Side sued Rise after Rise terminated the construction contract due to Fifth Side’s failure to supply adequate financial assurances.

    Rise filed a motion to exclude the expert testimony of Ben D. Nolan, who opined that Fifth Side had the financial ability to fund the Project, and that Fifth Side met its obligation under the Owner’s Financial Assurances provision.

    Construction Expert Witness

    Ben Davis Nolan has served the construction industry for over thirty-eight years, having worked as a project engineer for the US Army Corps of Engineers (ACOE), project manager for a major general contractor, marine contractor, utility contractor, and president of a general contracting company.

    His career has progressed from hands-on construction and engineering field work to construction dispute resolution and management consulting. Nolan has managed over two hundred consulting engagements for clients since 1992.

    Get the full story on challenges to Ben Nolan’s expert opinions and testimony with an in-depth Challenge Study.

    Discussion by the Court

    Rise filed a motion to exclude the testimony of Nolan, who opined that Fifth Side had the financial ability to fund the Project, and that Fifth Side met its obligation under the Owner’s Financial Assurances provision. Rise argued that Nolan’s first opinion was irrelevant to the narrow contract claims, which center on whether Fifth Side met its obligation under the Agreement’s Owner’s Financial Assurances provision. Rise also argued that Nolan improperly relied on documents Fifth Side did not provide to Rise before contract termination. The Court agreed with Rise.

    The core issues for the jury are whether Fifth Side met its obligation under the Owner’s Financial Assurances provision and, conversely, whether Rise had the right to terminate the Agreement under that provision.

    Because Nolan’s opinion that Fifth Side had the financial ability to complete the project is irrelevant to those issues, he is barred from testifying on that topic. The same is true for any post-termination evidence demonstrating Fifth Side’s financial wherewithal.

    Indeed, the question is not whether Fifth Side could in fact fund the Project, but rather whether it provided Rise with reasonable evidence that it could do so.

    As a result, Nolan may not testify as to Fifth Side’s financial ability to complete the Project, nor may he discuss post-termination documents he relied on to establish Fifth Side’s financial wherewithal. Any post-termination evidence regarding Fifth Side’s financial means is likewise inadmissible. Nolan may testify, however, as to whether the documents Fifth Side provided to Rise pre-termination were sufficient, in his opinion, to meet the Owner’s Financial Assurances provision.

    Held

    The Court granted in part and denied in part Defendants’ motion to exclude the testimony of Ben Nolan.

    Key Takeaway

    The proponent of the expert testimony bears the burden of proving its admissibility by a preponderance of the evidence. While Nolan’s qualifications are not really in dispute, Nolan’s opinion that Fifth Side had the financial ability to complete the project is irrelevant to the core issues.

    Case Details:

    Case Caption: Fifth Side Lodging, LLC V. Rise Construction Services, LLC
    Docket Number: 0:23cv2649
    Court Name: United States District Court, Minnesota
    Order Date: March 30, 2026
  • Construction Expert Was Not Allowed to Opine on Repair Costs

    Construction Expert Was Not Allowed to Opine on Repair Costs

    On August 27, 2020, Hurricane Laura made landfall in Southwest Louisiana. In the original complaint, The Pentecostal Church of DeQuincy (“TPCD”) alleged that it sustained damage from the Hurricane, and that Church Mutual has underestimated the cost of repairs. The five (5) buildings considered as “Covered Property” at issue in this litigation are identified as the: (1) Sanctuary, (2) Activity Center, (3) Sunday School/Fellowship Hall, (4) Mobile Home, and (5) Pole Barn. During the relevant time period, Church Mutual provided coverage for the Covered Property.

    The Church reported its claimed loss on September 1, 2020. TPCD retained Robin D’Aunoy to produce fixed-price bids that reflected the rebuild costs utilizing August, 2020 pricing.

    Church Mutual filed a motion to exclude or limit the testimony of D’Aunoy.

    Construction Expert Witness

    Robin M. D’Aunoy has decades of relevant experience as an estimator. Twenty-five years ago, he started his own construction estimating, consulting, and project coordination company, working for subcontractors and general contractors, architects, engineers, developers, mediators, and attorneys. Since 2005, he has provided expert witness services in court cases as an estimator and has worked with and for mediators, construction experts, and consultants.

    Fortify your strategy by reviewing a Challenge Study detailing grounds for excluding Robin D’Aunoy’s expert testimony.

    Discussion by the Court

    D’Aunoy explained that he prepared the spreadsheet estimate based on what he would charge to do the work. To obtain his pricing, D’Aunoy called certain vendors in each area of skill or trade (“trade partners”), such as for the steeple, carpentry, floors, electrical, plumbing, HVAC, etc. and came up with a “conservative” number. Specifically, he testified that he “did a base price on an average cost,” using “a few estimates that I did during that year, and looked at some of the pricing that pertained to the project, with similar type projects.”

    Church Mutual argued that D’Aunoy’s methodology is unreliable, unrepeatable and unfounded because D’Aunoy has never been to TPCD site, either before or after Hurricane Laura.

    Church Mutual complained that D’Aunoy’s bid did not specify the type of flooring in specific rooms, the type of roof, and is generally not specific as to pricing.

    The Court found that D’Aunoy’s fixed-price bid did not meet the requirements of Rule 702 of the Federal Rules of Civil Procedure and Daubert. D’Aunoy’s fixed-price bid cannot be repeated; it cannot be tested. His methodology is flawed, and the fixed-price bid is unreliable, therefore, inadmissible.

    Held

    The Court granted Church Mutual’s motion in limine to exclude or limit the testimony of Robert D’Aunoy.

    Key Takeaway

    A key inquiry illuminating whether a methodology is reliable is whether it can be tested (and repeated) or subjected to peer review or publication.

    Case Details:

    Case Caption: Pentecostal Church Of Dequincy V. Church Mutual Insurance Co S.I.
    Docket Number: 2:22cv2782
    Court Name: United States District Court, Louisiana Western
    Order Date: February 04, 2026
  • Construction Expert Allowed to Opine on Repair Estimates

    Construction Expert Allowed to Opine on Repair Estimates

    This matter involves an insurance claim for damages associated with hurricane Laura. On or about September 16, 2020, Plaintiff, The Pentecostal Church Of Dequincy (“TPCD”) retained a public adjuster, Chris Tremaine. Tremaine worked with Church Mutual’s field adjuster, Trey Johnson, to schedule a joint inspection of TPCD’s campus on September 30 and October 1, 2020. Tremaine worked with Kelly Spence, a specialist for the estimating program, Xactimate. However, due to the volume of cases Tremaine and Spence were undertaking, they retained Joe Taylor to perform the preliminary task of taking measurements and developing rough Xactimate estimates for TPCD’s campus buildings.

    Taylor produced rough estimates for five (5) structures dated November 25, 2020. Kelly Spence then reviewed these rough estimates and made necessary corrections to measurements and building finishes for the three larger structures, the Sanctuary, Sunday School, and Activity Center. These three (3) corrected Xactimate estimates were completed on or about December 9 and December 10, 2020.

    Joe Taylor’s November 25, 2020 rough estimates for the Sanctuary, Sunday School and Activity Center were never produced to Church Mutual Insurance (“CMI”) as part of the claim adjustment process. They were produced by TPCD’s counsel to CMI’s counsel only two (2) years after the loss.

    Motion to Exclude

    CMI’s Neil Wright, a construction consultant, produced an expert report evaluating the differences between Taylor’s November 25, 2020 Xactimate rough estimates for the Sanctuary, Sunday School and Activity Center and Kelly Spence’s corrected estimates for the December 8, 2020 Activity Center estimate and the December 10, 2020 corrected estimates for the Sanctuary and Sunday School.

    To simplify, Wright compared three (3) rough estimates that were never produced to CMI for claim purposes with three (3) corrected versions that were presented to CMI.

    TPCD filed a motion to exclude Wright’s expert testimony because this simple task does not involve any specialized knowledge (only a calculator) and clearly will not provide any assistance to the trier of fact.

    Construction Expert Witness

    Fred Cornelius (Neil) Wright III is a senior forensic building consultant whose experience includes conducting thousands of building inspections and more than 2,000 post-catastrophe inspections following major hurricanes. He regularly prepares and analyzes repair estimates.

    Want to know more about the challenges Neil Wright has faced? Get the full details with our Challenge Study report.

    Discussion by the Court

    Church Mutual remarked that Wright inspected the TPCD properties on March 27, 2024, and reviewed an exhaustive list of estimates, photographs, and documents associates with this litigation. He then authored a detailed expert report which included an analysis of the November 25, 2020, and December 8-10, 2020, Exact Estimates produced by Plaintiff.

    Wright testified that his role included the following: “analyze the data that’s provided, do a comparative analysis of photographs, create an estimate using Xactimate and RSMeans to further the process, and put a price on the recommended scope of repairs. . .”

    Church Mutual contended that the two estimates reflect a change in scope, quantities or materials because they both utilized the same October 2020 price list. Thus, Church Mutual posits that Wright’s testimony is necessary and helpful to understand where the increases originated and what they represent.

    TPCD moved to exclude the first Exact Estimate because it was not the estimate that it submitted to Church Mutual for its claim of damages. Church Mutual argues that its expert should have the opportunity to explain to the jury, line-item-by-line-item, each change which resulted in an increase of $274,707.83 in estimated damages from its initial estimate. Church Mutual also contended that its experts should be allowed to analyze materials produced in discovery to show the existence of materially different estimates prepared by Plaintiff’s representative, which goes to TPCD’s credibility, consistency, and intent. The Court agreed with Church Mutual that this evidence is relevant and admissible.

    Held

    The Court denied The Pentecostal Church of DeQuincy’s motion to exclude the testimony of Neil Wright.

    Key Takeaway

    Wright’s testimony will assist the trier of fact because he conducted a line-by-line comparative analysis of complex estimates to identify changes in quantities, materials, scope, and pricing which requires specialized knowledge of estimating methodology and construction practices.

    Case Details:

    Case Caption: Pentecostal Church Of Dequincy V. Church Mutual Insurance Co S.I.
    Docket Number: 2:22cv2782
    Court Name: United States District Court, Louisiana Western
    Order Date: February 04, 2026
  • Construction Expert’s Testimony on Insurance Policy Application Excluded

    Construction Expert’s Testimony on Insurance Policy Application Excluded

    This case arises from an insurance coverage dispute regarding damage to Plaintiff O’Reilly Hotel Partners–Champions Circle, LLC’s (“Plaintiff”) hotel complex in Fort Worth, Texas (the “Property”). The Property consists of various buildings, including a hotel tower, a conference center, and a golf clubhouse. The case involves multiple insurance policies and multiple insurance claims stemming from events that occurred on different dates.

    Defendant Continental Casualty Insurance Company challenged the testimony of Plaintiff’s retained expert witnesses, Mike Krismer and Michael Barclay.

    Construction Expert Witnesses

    Mike Thomas Krismer, CIEC, has over 45 years of experience in structural repair and building renovation of residential, commercial, and public buildings. His primary focus has been water damage as it relates to the building envelope and structure.

    Get the full story on challenges to Mike Krismer’s expert opinions and testimony with an in-depth Challenge Study.

    Michael C. Barclay is a general contractor and cost estimator. Barclay has knowledge of the condition of the Project. He has experience and expertise in construction, bidding, and construction scheduling and sequencing issues associated with the Project, as well as cost estimating for the repair of this and similar buildings and sites.

    Fortify your strategy by reviewing a Challenge Study detailing grounds for excluding Michael Barclay’s expert testimony.

    Discussion by the Court

    Mike Krismer

    Plaintiff designated Krismer as an expert on water mitigation and water damage, stating that he is expected to testify “regarding the industry standard for inspecting, documenting, moisture mapping, and scoping remediation and repair of water-damaged materials.” He was also designated as an expert regarding the “reasonable and necessary scope of repairs required by the losses in question.”

    Analysis

    First, Defendant argued that under Federal Rule of Evidence 702, Krismer is not qualified as an expert on insurance contract interpretation. Second, Defendant argued that Krismer did not support his opinions regarding the amount and cost of repairs with the necessary underlying facts, data, and verifiable methodology.

    Krismer’s CV lists his qualifications regarding water mitigation and water damage, and Plaintiff proffered Krismer as an expert for that purpose. Despite this, Krismer’s expert report contains opinions about what Defendant should pay under the insurance policy based on his interpretation of the policy’s terms and coverage. Because Krismer is not qualified as an expert on insurance policy application or interpretation, the Court determined that his testimony on that subject is inadmissible.

    Krismer’s report included a publication on how to evaluate electrical equipment exposed to water damage, images that appear to identify roof leaks with labels such as “identified as new” or “identified as old,” and a final report concluding that Cavalry Construction’s work was defective because a list of repairs needs to be completed.

    The report did not explain what methodology, if any, was used in generating these images. It also did not explain what “identified as new” and “identified as old” mean, or what they are new or old in reference to. Specifically, it was unclear whether the reference point for the new/old distinction was a storm that Plaintiff claimed caused the damage or Cavalry Construction’s allegedly defective construction.

    The Court held that Krismer’s testimony is inadmissible because it is vague and not supported by adequate underlying facts, data, or methodology.

    Michael Barclay

    Defendant argued that Barclay’s opinions are supported solely with an estimate of purported repair costs and a repair estimate, which, standing alone, failed to satisfy the requirements of an expert report under Federal Rule of Civil Procedure 26(a)(2)(B).

    Barclay’s report consisted of two-page repair cost estimate, a table of permit fees, and a chart adding contingency fees. However, there was no narrative as to the methodology utilized by Barclay in preparing the estimate and no basis for the total included in the estimates—just various unit prices and line items included in the estimate. Because Barclay’s report did not include the basis for his opinions or the facts and data that were considered, it did not comply with Rule 26(a)(2)(B)(i) and Rule 26(a)(2)(B)(ii).

    Having concluded that Plaintiff did not comply with Rule 26(a)(2)(B) the Court now determines in its discretion whether to strike Barclay’s report and opinions or to impose some lesser sanction, like leave to amend. Here, trial is in less than four weeks, discovery has closed, and Plaintiff has failed to respond to Defendant’s expert challenges after the Court required expedited briefing. As a result, the Court determined that Barclay’s expert testimony is inadmissible and Barclay is precluded from testifying as an expert witness in this matter.

    Held

    The Court granted Defendant’s motions to strike or limit the opinions and testimony of Mike Krismer and Michael Barclay.

    Key Takeaway

    Defendants are correct that Krismer’s report failed to indicate what facts and what methodology or approach underlies the opinions. Reliability considerations such as these are particularly important in a case like this where part of the dispute depends upon whether Defendant used the right methodology to evaluate water damage.

    Case Details:

    Case Caption: O’Reilly Hotel Partners-Champions Circle, LLC V. Allied Property And Casualty Insurance Company
    Docket Number: 4:25cv165
    Court Name: United States District Court, Texas Northern
    Order Date: December 18, 2025