Expert Witness Profiler

Category: Construction Expert Witness

  • Civil Engineering Expert Witness’ Opinion that the Roof Requires Full Replacement is Not Mere Speculation

    Civil Engineering Expert Witness’ Opinion that the Roof Requires Full Replacement is Not Mere Speculation

    Plaintiff Franklin Square Condominium Owner Association alleged that a hailstorm on April 28, 2021, damaged its property at 817-831 Old Ranch Road 12, San Marcos, Texas 78666.

    Franklin Square filed a claim with its insurance company, Defendant AmGuard Insurance Company. Plaintiff alleged that AmGuard breached the insurance contract by failing to pay the full amount of the claim.

    Franklin Square designated two expert witnesses: Marc Camacho, a structural and civil engineer who would testify that a severe hailstorm on April 28, 2021, caused functional damage to the roof of the Property that would require full replacement; and Jeremy Duke, a general contractor who would testify on the cost to repair the Property and replace the roof. 

    Civil Engineering Expert Witness

    Marc Camacho has over fifteen years of experience in engineering forensics investigations and/or design related to residential, commercial, and various other buildings and installations. His expertise includes forensic analysis, inspection, evaluation, engineering design, report/repair recommendations, and review/rebuttal of third-party reports. Camacho has extensive
    experience in various construction material types, installation and evaluation protocols, and component failure mechanisms, with understanding of construction plan implementation, building code interpretation, industry standards, and identification of storm-related damage.

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

    Construction Expert Witness

    Jeremy Duke holds a degree in Kinesiology and Business from the University of North Texas and an Associate Degree in Science from Navarro Junior College. Jeremy has obtained multiple certifications, including Xactimate 28 Level 1, and holds a Texas Real Estate License, enhancing his expertise in the roofing and general construction industry.

    Since November 2014, Duke has been the owner of J. W. Duke Roofing and General Construction, where he has successfully managed various projects.

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

    Discussion by the Court

    AmGuard asked the Court to exclude Camacho’s testimony as unreliable. AmGuard also contended that Duke’s testimony should be excluded because his report did not comply with Rule 26, he is not qualified to give expert testimony on the cost to replace a roof, and his estimate on interior repairs is unreliable.

    Camacho’s Opinion Is Reliable

    For expert testimony to be reliable, it must “be grounded in the methods and procedures of science and . . . be more than unsupported speculation or subjective belief.”

    AmGuard argued that Camacho’s testimony that the Property’s roof must be replaced is unreliable because it is not supported by sufficient data or reliable methodology. AmGuard challenged Camacho’s opinion that hail damage to the concrete roof tiles “cannot be feasibly or effectively repaired” and remediation “will require full removal and replacement of concrete tile roof coverings” at the Property. 

    Camacho visited the Property on March 19, 2024, and inspected the roof and took photographs of the damage. His expert report stated that damage “consistent with historical impacts from hail” was present on roof tiles and metal components on the roof. AmGuard argued that the report is unreliable because Camacho only closely inspected a small percentage of the roof tiles and did not estimate the percentage of damaged tiles. However, Camacho testified that he viewed “all of the roof in general,” but that when performing a hail inspection, he “quite frequently will get down on his hands and knees to like really get up close and attempt to evaluate” only a fraction of a roof’s tiles. 

    Camacho also stated in his report that he observed several different types of hail damage on the roof and that the damage could not be feasibly or effectively repaired. Moreover, he explained how roofs can be damaged by hail and how functional damage reduces a roof’s water-shedding capability or lifespan. The Court found that Camacho’s opinion that the roof requires full replacement is grounded in a proper methodology and is not mere speculation.

    Duke’s Report Does Not Comply with Rule 26

    AmGuard argued that Duke’s testimony should be excluded because his report does not comply with Rule 26(a)(2)(B), which requires an expert report to include “a complete statement of all opinions the witness will express and the basis and reasons for them” and “the facts or data considered by the witness,” among other things.

    Duke’s report consisted of his resume; photographs of the damage; and a damage estimate report created using “a computer software program known as ‘Xactimate’ which is commonly used by construction contractors and adjusters to create estimate reports.” Duke neither stated the basis and reasons for the damage nor explains how his experience is reliably applied to the facts of this case. Therefore, the Court found that his report does not comply with Rule 26(a)(2)(B). 

    Franklin Square has not shown that its failure to comply with Rule 26(a)(2)(B) was substantially justified or harmless

    Rule 37(c)(1) requires courts to exclude expert testimony for failure to comply with Rule 26(a) unless the failure was substantially justified or harmless. Franklin Square contended that Duke’s report does comply with the rule and does not argue that its failure was substantially justified. Courts weigh four factors to determine whether a party’s violation is harmless: “(1) the importance of the evidence; (2) the prejudice to the opposing party of including the evidence; (3) the possibility of curing such prejudice by granting a continuance; and (4) the explanation for the party’s failure to disclose.”

    The Court held that the first factor weighs in favor of Franklin Square because Duke’s testimony on damages would be important to a determination of the amount of Franklin Square’s claim. The second and third factors weigh in favor of AmGuard. Without an adequate statement of the basis for Duke’s opinion, AmGuard is prejudiced in its ability to prepare for his deposition and cross-examination at trial. Moreover, Discovery has closed, AmGuard has filed a motion for summary judgment, and “a continuance would result in additional delay and increase the expense of defending the lawsuit.”

    Considering the four factors, the Court found that Franklin Square has not shown that its failure to comply with Rule 26(a)(2)(B) was substantially justified or harmless.

    Held

    The Court held that Defendant AmGuard Insurance Company’s motion to exclude or limit the testimony of Plaintiff’s designated expert witnesses is denied as to Marc Camacho and granted as to Jeremy Duke.

    Key Takeaways:

    • Camacho’s opinion that the roof requires full replacement is grounded in a proper methodology because he observed several different types of hail damage on the roof to arrive at his conclusions. He explained how roofs can be damaged by hail and how functional damage reduces a roof’s water-shedding capability or lifespan.
    • If a witness is “relying solely or primarily on experience, then the witness must explain how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts.” Duke neither states the basis and reasons for the damage nor explains how his experience is reliably applied to the facts of this case. Therefore, the Court finds that his report does not comply with Rule 26(a)(2)(B).

    Case Details:

    Case Caption: Franklin Square Condominium Owner Association V. Amguard Insurance Company
    Docket Number: 1:23cv1012
    Court: United States District Court, Texas Western
    Order Date: September 1, 2024
  • Construction Expert Witness Used Objective Grounds to Come to his Conclusions

    Construction Expert Witness Used Objective Grounds to Come to his Conclusions

    VEC, Inc. accused Joyce Electrical Inc. and Hudson Insurance Co. of breaching a building contract between the parties, after Williams Field Service Company LLC awarded VEC a contract to build an electrical substation and distribution line.

    After soliciting bids for subcontractors to do the electrical work on the project, VEC hired Joyce. Joyce eventually fell behind on their contractual obligations, prompting VEC to prepare a recovery plan. Joyce allegedly failed to meet the obligations outlined in the recovery plan as well, and allegedly abandoned the project. As a result, VEC had to have other contractors finish the unfinished work. Delays in the project caused VEC to incur $280,000 in liquidated damages to Williams.

    Accordingly, VEC filed this action against Joyce and Hudson to collect their losses on the project, which include liquidated damages paid to Williams, additional costs paid to subcontractors to complete Joyce’s obligations, increased overhead and job costs, and lost profits, which total $1,403,035.40 plus interest.

    Defendants’ motion in limine seeks to preclude the testimony and expert report of VEC’s expert witness, George P. Ellis, including his expert report, under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).

    Construction Expert Witness

    George P. Ellis is an experienced Senior Construction Consultant who provides Construction Consulting and Expert Witness services to Contractors, Subcontractors, Owners, Architects, Engineers, Developers, Insurance Companies, Attorneys, etc. for projects located throughout the U.S. Ellis’ Construction Consulting and Expert Witness Services expertise includes Critical Path Method (CPM) Schedule Analysis, Delay and Disruption Analysis, Damages Computation and Analysis, Lost Labor Productivity Analysis, Change Order Preparation and Analysis, Defective Work Claim Review and Analysis, Analysis of Work Scope Disputes, Analysis of Project Impacts from Differing Site Conditions, etc.

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

    Discussion by the Court

    Defendants sought to preclude the expert testimony and report of Ellis, arguing that he is not qualified to calculate damages, that his evidence is unreliable, and that his evidence does not fit the issues of the case.

    Qualifications

    First, Defendants averred that Ellis “had no qualifications to opine on damages.”

    It was worth noting that Ellis works on projects ranging from consulting to the tabulation of damages for litigation in the construction industry. Ellis also reports extensive experience tabulating construction damages concerning power plants. Based on his qualifications, the Court found Ellis a qualified expert in construction management and damage calculation for this case.

    Reliability

    Defendants next submitted that the Report is “devoid of any actual analysis, is full of misrepresentations of the discovery record, and is rife with impermissible conclusions of law.” Additionally, Defendants contended that the opinions of Ellis contain no methods or procedures and are unreliable.

    The Court held that the the Report’s analysis relies heavily on Ellis’s practical
    experience. Ellis extensively analyzed the record’s construction documents to reach his conclusions. Additionally, Ellis buttresses some of his arguments with independent data, including weather data.

    The Court concluded that Ellis used objective grounds to come to his conclusions. Any factual discrepancies do not defeat the reliability of Ellis’ expert evidence, as Defendants will have the ability to cross-examination Ellis on these issues at the time of trial.

    Fit

    Finally, Defendants submitted that “Ellis’ opinions do not fit the case and will not help the factfinder understand any evidence or decide any fact in dispute.” Basically, Defendants argued that the case is too straightforward for expert interpretation and that his “net opinions, or ipse dixit, should be excluded from evidence because they “would be completely unhelpful or harmful to the trier of fact.”

    The Court found that the issues in the case were sufficiently industry-specific to allow an expert to aid the trier of fact. Due to his practical experience and thorough report, Ellis’s expert evidence fit the issues in this case. However, to the extent Ellis’s conclusions ventured into legal conclusions, the Court proceeded to exclude them. Otherwise, Ellis’s evidence sufficiently fits the issues of this case under Federal Rule of Evidence 702.

    Held

    The Court granted in part and denied in part the Defendants’ motion in limine to preclude the expert testimony of George P. Ellis.

    Key Takeaways:

    • Daubert factors such as peer review, publication, and potential error rate “simply are not appliable, when the reliability of testimony from a practical expert depends heavily on the knowledge and experience of the expert, rather than the methodology or theory behind it.”
    • The practical experience expert’s evidence can fit the issues of the case by utilizing the available facts and his practical experience to help the trier of fact navigate complex industry-specific matters.

    Case Details:

    Case Caption: Vec, Inc. V. Joyce Electrical, Inc. Et Al
    Docket Number: 3:19cv2148
    Court: United States District Court, Pennsylvania Middle
    Order Date: October 08, 2024
  • Construction Expert Witness’ Deposition Testimony deemed “Incomplete and Inconclusive”

    Construction Expert Witness’ Deposition Testimony deemed “Incomplete and Inconclusive”

    This action stems from a trip and fall incident that occurred on July 19, 2019, while Plaintiff, Carolyn Simmons was walking and tripped along a dangerous and defective sidewalk located in front of Rite Aid in Ridgeland, South Carolina. The Defendant, Rite Aid of South Carolina, Inc., Walgreens, and Sitaras and Tzioros Properties, Inc., (hereafter referred to as “Defendant”), is a national drug store chain located in Ridgeland, State of South Carolina.

    Defendant Sitaras and Tzioros Properties, Inc.’s (hereafter “Defendant”) filed a motion to exclude the testimony of Plaintiff’s expert Gerald Neal.

    Construction Expert Witness

    Gerald Neal is licensed general contractor with eighteen years of experience in project management and facilities engineering. Moreover, he has extensive experience constructing and renovating homes, offices, apartments, restaurants, and churches.

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

    Discussion by the Court

    While the case was still pending in state court, Plaintiff identified Neal as an expert witness and indicated, in response to Defendants’ interrogatories, that Neal was “compiling” documents and would forward these upon receipt.

    After the case was removed to United States District Court, the Plaintiff’s expert report was due by March 26, 2024. According to Defendant’s motion, no expert report meeting Rule 26(a)(2)(B) requirements had been produced by Plaintiff under the Court’s scheduling order.

    Also, Neal was deposed while the case was still pending in state court. Besides, he stated in his deposition that he lacked certain important information that was necessary to finalize his opinions. Specifically, Neal testified that he needed the date of the building’s certificate of occupancy because that would determine the specific building code that was applicable to this incident.

    Subsequently, Defendant filed its motion to exclude more than two months after the deadline in the scheduling order for the production of expert reports. Defendant’s assertions that it has never been provided an expert report from Neal and that his deposition testimony was “incomplete and inconclusive” have gone unchallenged by Plaintiff since no response to the motion to exclude was filed.

    Ultimately, the Court found that no good cause or substantial justification has been shown for the failure to timely produce an expert report and the failure to comply has not been shown to be harmless.

    Held

    To conclude, the Court granted Defendant’s motion to exclude the testimony of Gerald Neal as an expert witness at trial.

    Key Takeaway:

    To conclude, the Court found that no good cause or substantial justification had been shown for the failure to timely produce an expert report. Furthermore, the failure to comply has not been shown to be harmless.

    In short, when considering a motion to exclude an expert witness for failure to produce a required expert report, the Court must address two applicable rules. First, Fed. R. Civ. P. 16(b)(4) provides that a scheduling order may be modified only “for good cause and with the judge’s consent.” Second, even where a timely expert report has not been produced, an expert will not be excluded so long as the failure to timely produce the report is “substantially justified or is harmless,” as per Fed. R. Civ. P. 37(c)(1).

    Case Details:

    Case Caption: Simmons V. Rite Aid Of South Carolina, Inc. Et Al
    Docket Number: 9:23cv2290
    Court: United States District Court, South Carolina
    Order Date: July 03, 2024
  • Civil Engineering Expert Witness’ Generic Testimony Deemed Unhelpful

    Civil Engineering Expert Witness’ Generic Testimony Deemed Unhelpful

    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.

    Defendants sought to exclude two experts, Howard Ehrsam and Shawn Macomber.

    Civil Engineering Expert Witness

    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.

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

    Construction Expert Witness

    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.

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

    Discussion by the Court

    Howard Ehrsam

    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:

    1. Whether defective Knauf drywall produces gasses and what gasses are emitted;
    2. Whether defective Knauf drywall off gassing causes corrosion in the home and the extent of that corrosion;
    3. Whether defective Knauf drywall causes damage to components in a home and which typical components (wiring, plumbing, a/c, etc.);
    4. Whether defective Knauf drywall causes damage to personal property in the home and which items or contents are affected (computers, televisions, etc.); and,
    5. 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

    Case Details:

    Case Caption: Helmick V. Knauf Gips Kg Et Al
    Docket Number: 8:21cv2777
    Court Name: United States District Court, Florida Middle
    Order Date: May 02, 2024

  • Civil Engineering Expert Witness’ Assessment of Wind-Pressure Damage resulting from Hurricane Sally Admitted

    Civil Engineering Expert Witness’ Assessment of Wind-Pressure Damage resulting from Hurricane Sally Admitted

    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.
    Docket Number: 1:22cv257
    Court: United States District Court, Alabama Southern
    Citation: 2024 U.S. Dist. LEXIS 32108
    Order Date: February 26, 2024
  • Construction Expert Witness Testimony Admitted Despite Conducting Inspection Three Years Post Hurricanes

    Construction Expert Witness Testimony Admitted Despite Conducting Inspection Three Years Post Hurricanes

    This dispute stems from damages caused by Hurricane Laura and Hurricane Delta to a residence at 3321 Landfair Street, Lake Charles, Louisiana. The property, owned by the estate of Bobby Shelton, was insured by State Farm Fire & Casualty Company . Cynthia Frisbie, the executor of the estate, filed a lawsuit on October 16, 2021, in the Louisiana Western District Court, alleging that  State Farm did not promptly or adequately compensate for covered losses under the insurance policy.

    While the Frisbie suit was still ongoing on August 16, 2022, Cat 5 Pro LLC (“Cat 5”) initiated a separate lawsuit against State Farm in the same court. Cat 5 claimed that Frisbie had assigned her rights under the policy to Cat 5, asserting that State Farm owed them $69,625.27 (factoring in a $16,657.42 payment) for mitigation work carried out at the Shelton residence. Cat 5 raised claims of breach of contract and bad faith under Louisiana law in connection with the unpaid invoices for their completed work.

    The two suits proceeded through the Case Management Order for first-party hurricane claims but did not resolve. They were consolidated at State Farm’s motion and have been set for jury trial on January 29, 2024. On September 26, 2023, Cat 5’s bad faith claims were dismissed on the grounds that these had not been validly assigned by Frisbie. On November 17, 2023, Cat 5 filed suit against State Farm in the Fourteenth Judicial District Court, Calcasieu Parish, Louisiana. There it raised breach of good faith and fair dealing, breach of contract, detrimental reliance, and fraud claims under Louisiana law against the insurer based on the $69,625.27 in unpaid invoices for its work on the property at 3321 Landfair Street. It also asserted that the amount in controversy “does not exceed $75,000.”

    State Farm removed the suit to the Western District Court of Louisiana on the basis of diversity jurisdiction. Plaintiff filed a Motion to Remand, which this Court denied. State Farm then filed a Motion to Dismiss the state filed removed suit, which this Court granted.

    Plaintiff Cat 5 Pro filed a Daubert motion to exclude the reports and
    testimony of State Farm’s expert Jonathan Palmer as well as a motion to strike the expert report of Jonathan Palmer.

    Construction Expert Witness

    Jonathan Palmer, licensed as a building and residential contractor since 2017, boasts over 17 years of construction experience. He earned a postbaccalaureate certification in Construction Management from Louisiana State University. Palmer has overseen a diverse range of construction projects, including small complex residential ventures to large commercial projects. Since 2019, he has served as a Managing Building Consultant at Keystone Experts and Engineers.

    Discussion by the Court

    Under Federal Rule of Evidence 702, “A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (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.” When expert testimony is challenged under Daubert, the burden of proof rests with the party seeking to present the testimony.

    Palmer had been retained by State Farm to provide insights into the disputed invoice under scrutiny in this litigation. Cat 5 contested Palmer’s qualifications, asserting an alleged deficiency in certifications and licensure. They also claimed he failed to articulate his expert designation during deposition. Additionally, Cat 5 argued that Palmer’s report and opinions lacked reliability due to his inspection occurring three years after the hurricanes.

    Cat 5 contended that Palmer lacked qualifications because he acquired his residential construction license post-Hurricanes Laura and Delta and lacked official certifications in related areas. They argued that expertise is determined by “knowledge, skill, experience, training, or education,” as per Federal Rule of Evidence 702. The Court noted that the absence of certain certifications, including a residential construction license obtained after the hurricanes, might not automatically disqualify an individual from providing expert testimony.

    State Farm countered, asserting that Palmer was qualified as an expert general contractor. They refuted Cat 5’s claim that Palmer obtained his residential construction license in 2021, presenting evidence that he held it since 2018. State Farm highlighted Cat 5’s lack of construction and mold remediation licenses, emphasizing that Cat 5 only acquired a home improvement license in 2021 after performing mitigation work on the Frisbie property post-hurricanes.

    Regarding Palmer’s testimony on his area of expertise, State Farm contested Cat 5’s representation, asserting misrepresentation. Cat 5 claimed Palmer couldn’t specify State Farm’s designation of him as an expert witness during his deposition. However, Palmer clarified that while he didn’t know the specific terminology, his expertise lay in being a general contractor. State Farm argued that Palmer’s qualification stemmed from his knowledge, education, experience, and expertise in general contracting.

    On the matter of reliability, State Farm maintained that Palmer’s 14-page report, based on Cat 5’s estimate, photographs, drying logs, State Farm’s photographs, and his own inspection (albeit conducted three years post-hurricane), demonstrated the credibility of his findings.

    The Court determined that an expert’s opinions remain reliable even if they rely on evidence gathered by others rather than the expert’s direct inspection of the residence. State Farm emphasized that such arguments challenge credibility and are suitable for cross-examination, but they do not constitute a basis for deeming the expert’s testimony inherently unreliable.

    State Farm contended that the case’s nature was inherently spoliative, given that the disputed invoice originated after the completion of mitigation work, making it impossible to inspect the property before that work was done. After reviewing the memoranda from both parties, the Court found no grounds to exclude Palmer’s report and testimony.

    Henceforth, when Cat 5 argued that Palmer’s expert report should be stricken because he inspected the Frisbie property three years after Hurricanes Laura and Delta damaged the property, and because there was some confusion as to the bates numbers on certain photographs, the Court found no basis to grant the relief sought by Cat 5.

    Held

    The Court denied the Daubert motion to exclude the reports and
    testimony of Jonathan Palmer as well as the motion to strike the expert report of Jonathan Palmer.

    The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.

    Key Takeaways:

    The admissibility of expert testimony in this case hinged on Federal Rule of Evidence 702, which outlines the qualifications and criteria for expert witnesses. The Court emphasized that lacking specific certifications or licenses, especially when related to post-disaster scenarios, does not automatically disqualify an expert under Rule 702. State Farm successfully argued that Palmer’s expertise as a general contractor, supported by knowledge, education, and experience, qualified him to provide insights into the disputed invoice. The Court highlighted that challenges to expert testimony, such as those raised by Cat 5, should be addressed through cross-examination rather than outright exclusion. Additionally, the Court rejected the argument that the nature of the case, involving post-mitigation inspection, rendered expert testimony inherently unreliable. This case underscores the importance of adherence to Rule 702’s criteria and the recognition that challenges to expert testimony primarily serve as fodder for cross-examination rather than grounds for exclusion.

    Case Details

    Case Caption Frisbie V. State Farm Fire
    Docket Number 2:21cv3658
    Court United States District Court, Louisiana Western
    Citation 2024 U.S. Dist. LEXIS 8907
    Order Date January 17, 2024
  • Court rejects the testimony of the Construction Expert Witness for not conducting site examination of any kind after a slip and fall accident

    Court rejects the testimony of the Construction Expert Witness for not conducting site examination of any kind after a slip and fall accident

    Plaintiff Wilfredo Maribona filed a negligence suit against Defendant Wal-Mart Stores East, LP. Maribona summarized his claim, asserting that he slipped due to the painted stop bar in the parking lot being slippery when wet from rain. Despite no accident report being filled out, the incident was recorded by store surveillance.

    The Plaintiff enlisted Christopher Zimmerman (“Zimmerman”) as an expert witness, who asserted that the paint on the stop bar lacked sufficient slip resistance, and Wal-Mart had violated multiple building and other codes. In response, the Defendant hired Derrek-Ian Verlaan (“Verlaan”) as its rebuttal expert, contending that the stop bar was not slippery. Both parties sought to prevent the other’s expert from testifying.

    The Court addressed three motions: (1) Plaintiff’s Daubert Motion to Preclude Expert Testimony of Derrek-Ian Verlaan; (2) Defendant’s Daubert Motion and Supporting Memorandum of Law to Strike the Opinion and Testimony of Plaintiff’s Expert Christopher Zimmerman; and (3) Defendant’s Motion for Final Summary Judgment.

    Building Inspection Expert Witness

    Christopher M. Zimmerman is a Florida State Licensed Building Inspector and a Florida State Licensed Plans Examiner with over 16 years of experience examining the permitting and construction process, including construction safety practices. He has obtained his Bachelor of Science degree in Criminology from Florida State University and has further enhanced his investigation skills during an internship with Florida Department of Insurance, Fraud Division. Zimmerman is currently a partner of Zimmerman Associates of Florida, where he provides research, inspection and expert witness services to owners, the legal profession and their clients, on matters concerning construction activity, property damage and personal injury.

    Construction Expert Witness

    Derrek-Ian G. Verlaan is a Certified Safety Professional and a Senior Staff Consultant with Engineering Systems Inc. in Fort Myers, Florida, where he has been performing scientific investigation, research, and consulting for over 20 years. His consulting practice areas include construction, safety, environmental, and fire. He investigates residential and commercial property losses related to structural, fire, water damage, mold, and corrosive drywall. He has obtained his Bachelor of Science from the University of West Florida.

    Discussions by the Court

    The Plaintiff asserted that Christopher Zimmerman possessed over 16 years of experience as a Florida State Licensed Building Inspector and Plans Examiner, specializing in permitting and construction processes, including construction safety and is qualified by the Court to provide testimony in these areas.

    In an on-site inspection performed on July 7, 2021, approximately six months after the event, Zimmerman assessed the site under overcast weather conditions following rain. Without conducting destructive testing, he employed the methods typical of a building inspector, including visual inspection, tactile examination, and surface scratching. Zimmerman explained his methodology by visually examining and feeling the conditions on-site, touching the surface with his hands, and scratching it to identify any abrasive additive. He observed variations in the surface along the painted line, noting smooth areas and pitting likely caused during the spray application, as seen in photographs. Multiple pictures were taken to document various conditions in the area, including instances of cracking.

    Zimmerman expressed the opinion that the pertinent paint striping lacked an abrasive additive, failing to provide slip-resistant construction. His first opinion identified the route as a primary access and egress route, marked for pedestrians, citing relevant codes and criteria. His second opinion asserted that Wal-Mart failed to furnish a consistently slip-resistant walking surface for the Plaintiff’s use under expected conditions and use. In a written opinion dated April 27, 2023, Zimmerman stated that a natural asphalt surface usually offers good slip resistance. However, when coated with paint without proper texturing or an abrasive additive, the slip-resistant characteristics diminish. The stop bar marking, having multiple layers of paint, concealed the natural abrasive features of the asphalt. Zimmerman found no evidence of an abrasive additive during his examination, describing the surface as smooth and nonporous. Such hard, smooth surfaces without sufficient abrasive additives are recognized as posing a slip hazard, especially when wet or contaminated.

    The Defendant asserted that Derrek-Ian Verlaan, held certifications as a Certified Safety Professional and served as a Senior Staff Consultant with Engineering Systems Inc. in Fort Myers, Florida, bringing over 20 years of experience in scientific investigation, research, and consulting. Verlaan also engaged in property loss consulting related to insurance, fire investigation, and environmental consulting. Despite his extensive experience, he had not testified in Court before, and his testimony had never been disqualified. 

    When Verlaan was engaged, the pavement markings at the Wal-Mart store had already been repainted, preventing him from inspecting the accident scene. Instead, he relied on a video of the incident, still photographs taken by Zimmerman, and six months’ worth of company slip and fall information for the location. His analysis revealed that out of 336 people traversing the pavement markings, including the stop bar, the Plaintiff was the only one to slip. Verlaan examined the video for partial slips or slip recoveries among the 118 people who physically stepped on the stop bar, conducting a statistical analysis to determine their steps. This analysis was connected to published research correlating certain levels of coefficient of friction with reduced slipping risks. However, Verlaan did not conduct a slip coefficient test because the surface had changed.

    Verlaan conducted a gait analysis of the video footage, noting that the Plaintiff did a partial split while holding a shopping cart. Based on discovery materials, Verlaan opined that reflective cracks in the paint could disperse surface water on the pavement markings, reducing the potential for slips due to hydroplaning. Additionally, he found that the stop bar was not slippery, as no other slip and falls were reported or observed in the preceding six months. Verlaan concluded that the walking surface was slip-resistant, and the Plaintiff’s slip was deemed an atypical random event, supported by video analysis and estimated incident rates.

    The Court emphasized the criteria for admissible expert testimony: qualifications, reliable methodology, and helpfulness to the trier of fact. In this case, both parties contended that the opposing expert failed to meet these requirements. However, the Court determined that both Zimmerman and Verlaan were qualified based on their education, training, and experience. Arguments challenging their qualifications were dismissed.

    The Court determined that Plaintiff successfully demonstrated the reliability of Zimmerman’s methodology and the helpfulness of his testimony regarding the first opinion. Any perceived shortcomings were deemed matters that go to the weight of the testimony and the admissibility of drawn conclusions or second opinion, which could be addressed during the trial. Conversely, the Court found that Defendant failed to establish the reliability of Verlaan’s methodology or the helpfulness of his testimony. Verlaan conducted no site examination of any kind, relying instead on counting people who did not slip during an arbitrary two-hour period to draw speculative conclusions. The relevance of the numbers of individuals who didn’t slip at or near the pertinent time was acknowledged, but it was not based on his expert testimony.

    The Defendant filed a motion for summary judgement. Responses in opposition were also filed but ultimately the motion for summary judgement was denied. The Court citing, Sutton v. Wal-Mart Stores E., LP, 64 F.4th 1166, 1169 (11th Cir. 2023), held that, under Florida law, a Plaintiff must establish four elements to sustain a negligence claim: (1) the Defendant owed a ‘duty, or obligation, recognized by the law, requiring the Defendant to conform to a certain standard of conduct, for the protection of others against unreasonable risks’; (2) the Defendant failed to conform to that duty; (3) there is ‘a reasonably close causal connection between the nonconforming conduct and the resulting injury’ to the claimant; and (4) some actual harm. The record indicated genuine disputes on material facts, and it did not support the conclusion that the Defendant was entitled to judgment as a matter of law. Consequently, the Court denied the motion for summary judgment.

    Held

    The Court ruled on three motions: 1) Plaintiff’s Daubert Motion to Preclude Expert Testimony of Derrek-Ian Verlaan was granted; 2) Defendant’s Daubert Motion and Supporting Memorandum of Law to Strike the Opinion and Testimony of Plaintiff’s Expert Christopher Zimmerman was denied; and 3) Defendant’s Motion for Final Summary Judgment was also denied.

    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 negligence suit brought by Wilfredo Maribona against Wal-Mart, expert testimony played a crucial role in shaping the arguments of both parties. Plaintiff’s expert, Christopher Zimmerman, utilized his 16 years of experience as a Florida State Licensed Building Inspector and Plans Examiner to assert that the painted stop bar lacked sufficient slip resistance, supporting his opinions with a thorough on-site inspection and visual assessments. Zimmerman’s methodology and qualifications were deemed reliable by the Court. On the other hand, the Defendant’s rebuttal expert, Derrek-Ian Verlaan, faced challenges in establishing the reliability of his methodology, as he conducted no site examination of any kind and relied on counting people who did not slip during a specific period. The Court found Verlaan’s approach lacking and irrelevant to his expert testimony. The Court’s emphasis on qualifications, reliable methodology, and helpfulness to the trier of fact underscores the critical role of expert testimony in negligence claims. Ultimately, the Court’s decision to deny the Defendant’s motion for summary judgment highlights the importance of genuine disputes on material facts in negligence cases, emphasizing the role of expert opinions in establishing liability and potential negligence.

  • Expert found qualified to opine on the Overall Completeness of the Stage Prop based on his experience in Construction Management and Operations

    Expert found qualified to opine on the Overall Completeness of the Stage Prop based on his experience in Construction Management and Operations

    The case originated from a contract disagreement between Movie Prop Rentals LLC and Miami Prop Rentals LLC, businesses in the movie production sector, and The Kingdom of God Global Church, a not-for-profit religious organization. The Plaintiffs claimed that the Defendants did not fulfill their part of a contract concerning the design and construction of a stage prop. They asserted that the Defendants did not make the necessary installment payments as stipulated in the contract. On the other side, the Defendants argued that the Plaintiffs’ insufficient progress in fabricating and constructing the stage prop released them from the responsibility to make additional payments.

    The Plaintiffs submitted a Daubert motion claiming that the Defendants’ rebuttal expert, Kane Smith, lacked the qualifications necessary to offer an expert opinion regarding the completion and quality of the Stage Prop. Additionally, the Plaintiffs argued that Smith utilized an unreliable methodology when reviewing the Stage Prop.

    Construction Expert Witness

    Kane Smith is an independent insurance consultant with over twenty years of experience in the construction business. He specializes in managing complex construction projects “ranging from airports to power generation facilities.” He has experience managing projects on 3 continents with budgets ranging from $5 million to $3 billion.

    Discussion by the Court

    Smith, an independent insurance consultant specializing in overseeing diverse construction projects, was challenged by the Plaintiffs regarding his expertise in the specialized field of stage prop fabrication. While acknowledging Smith’s qualifications in general construction, the Plaintiffs argued that his lack of experience specifically in stage prop fabrication invalidated his expertise. In response, the Defendants emphasized Smith’s extensive construction management experience spanning over two decades, asserting it qualified him to testify about the overall completeness of the Stage Prop.

    The Court ruled that Smith was qualified to testify regarding the Stage Prop’s overall completeness but acknowledged limitations as identified in his expert report. Plaintiffs contended that the disparity between complex construction projects and intricate stage prop fabrication rendered Smith unqualified to opine on the completeness of the Stage Prop. However, the Court found Smith’s experience, as detailed in his report and qualifications, sufficient for providing expert testimony on the construction and fabrication progress of the Stage Prop.

    Although acknowledging Smith’s lack of knowledge in specific finishing work for the Stage Prop, deeming it different from his expertise, the Court considered this aspect as affecting the weight of Smith’s expert testimony rather than its admissibility. The Court permitted Smith to offer expert rebuttal testimony, constrained by the parameters outlined in his report.

    The Plaintiffs contested the reliability of Smith’s methodology in assessing the overall completion of the Stage Prop. They argued that Smith’s inability to personally inspect the materials and the lack of sufficient documentation invalidated his expert opinion. The Defendants countered by stating that Smith’s review of a Dropbox containing various materials like budgets, design plans, photographs, and videos of the Stage Prop validated the reliability of his expert testimony.

    Plaintiffs reiterated their stance, asserting that Smith’s methodology was unreliable based on his expert report and deposition testimony. Smith’s report explicitly mentioned limitations due to not being able to physically inspect the site or have comprehensive information about the construction milestones or fabrication process. Smith further acknowledged that he lacked an inventory to guide his review of the Stage Prop, instead remarking that he estimated its completeness based on plans and a count of columns and pieces, lacking an inventory for guidance.

    However, referencing Federal Rule of Evidence 703, which permits experts to base opinions on provided facts or data, the Court noted that Smith had access to photographs, videos, design plans, and construction documents related to the Stage Prop. The Court deemed these materials sufficient for Smith to apply his expertise gained from complex construction projects, even though he acknowledged limitations in his review.

    Acknowledging the limitations outlined in Smith’s report, the Court ruled that while the Plaintiffs’ challenges affected the weight of Smith’s assessment, they did not warrant exclusion. The Court advised that any deficiencies in Smith’s review could be addressed during cross-examination rather than being grounds for exclusion.

    The Court concluded that Smith’s expert rebuttal testimony was beneficial for the jury, a point that the Plaintiffs did not contest. Smith aimed to offer rebuttal expert testimony regarding the completeness of the Stage Prop. The Court recognized the significance of this testimony in aiding the jury’s comprehension of the progress made in constructing and assembling the Stage Prop, pivotal aspects in determining whether the Plaintiffs fulfilled their obligations under the contract.

    The Plaintiffs aimed to prevent the introduction of evidence or testimony by Defendants related to two specific aspects: the stage of construction of the Stage Prop and the percentage of payments made for it. They specifically sought to exclude Joseph Busch and Ashley Nicole Larimer from providing opinion testimony on these matters. Plaintiffs argued that neither Busch nor Larimer were qualified to give opinion testimony, lacked a proper foundation for such testimony, and their inclusion would result in undue prejudice. They pushed for the exclusion of these witnesses from discussing the current stage of construction, the overall percentage of completion, and the financial aspects regarding payments made to Plaintiffs in relation to the total completion.

    Defendants countered by asserting that Busch and Larimer were fact witnesses relying on personal observations, making their testimony admissible. Plaintiffs maintained that both witnesses lack sufficient professional qualifications to testify on the Stage Prop’s completion and financial aspects. However, Defendants pointed out that Rule 701 of the Federal Rules of Evidence governs the admission of these witnesses’ testimony.

    Plaintiffs also argued that allowing the opinion testimony of either witness would result in unfair prejudice, citing the witnesses’ supposed lack of adequate knowledge concerning the Stage Prop’s construction status and financial details. They suggested that these gaps may be addressed during cross-examination. Nonetheless, they stressed the relevance of this evidence to critical facts, such as the Stage Prop’s overall completion, the agreed-upon price, and the construction progress gauged by the Parties’ budgets.

    The Court ultimately determined that while there might be potential shortcomings in the witnesses’ knowledge, these could be addressed through cross-examination. The evidence’s relevance to crucial facts such as the Stage Prop’s completion and the financial agreements outweighed the risk of unfair prejudice, leading to the conclusion that the probative value of this evidence is not significantly outweighed by the risk of unfair prejudice.

    The Plaintiffs aimed to prevent Defendants from introducing additional witnesses beyond those previously disclosed, namely, Joseph Busch, Ashley Nicole Larimer, and Kane Smith, arguing that doing so would cause undue prejudice. However, the issue of introducing undisclosed witnesses falls under Federal Rule of Civil Procedure 37. This rule specifies that if a party fails to disclose information or identify a witness as required by Rule 26(a) or (e), they cannot use that information or witness as evidence at trial unless the failure was substantially justified or harmless.

    Consequently, if Defendants attempt to present an undisclosed witness at trial, they must demonstrate that their failure to disclose that witness earlier was either substantially justified or harmless. Should Defendants establish this, the Court will then decide whether to allow the undisclosed witness, whether the jury should be informed about the non-disclosure, and if Defendants should face sanctions for the late disclosure. The Court, therefore, chose not to preemptively bar Defendants from introducing undisclosed witnesses at trial.

    Defendants asserted five claims based on alleged breach of the Parties contract: Breach of Oral Contract (Count I); Unjust Enrichment in the Alternative (Count II); Breach of the Implied Duty of Good Faith and Fair Dealing (Count III); Violation of the Florida Deceptive and Unfair Trade Practices Act (Count IV); and a request for Temporary, Preliminary, and Permanent Injunctive Relief (Count V).

    The Plaintiffs aimed to exclude evidence related to Counts II to V of the Defendants’ Counterclaim, arguing that allowing such evidence would result in undue prejudice. They based this argument on Defendants’ deposition testimony, suggesting that Defendants only intended to pursue Count I of their Counterclaim. However, the Court did not need to entertain this argument because its previous Order on the Motion for Summary Judgment had already granted Plaintiffs summary judgment on Counts II to V of Defendants’ Counterclaim.

    The Plaintiffs sought to exclude any additional evidence regarding damages linked to travel and related expenses connected to the Defendants’ planned outreach event. Plaintiffs noted that Defendants identified their damages as the money paid under the contract and related travel expenses. Plaintiffs insisted that evidence of damages related to the outreach event should be confined to the redacted bank statements disclosed during discovery.

    Similar to the request to limit undisclosed witnesses, Plaintiffs invoked Rule 37 concerning the admission of information not provided during discovery. If Defendants attempted to introduce further documentation regarding their travel and event-related expenses, which had not been previously disclosed, the Court would then assess the admissibility of such evidence under Rule 37.

    Held

    The Court denied Plaintiff’s Daubert motion to exclude the testimony of Defendant’s expert Kane Smith. The Court also denied Plaintiff’s request for an Order in Limine, in accordance with the foregoing, to bar all evidence referred to above which may be attempted to be adduced by Defendants at trial.

    The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.

    Key Takeaways

    The Plaintiffs contested the expertise of the expert witness, arguing that while he possessed extensive experience in construction management, his lack of specialization in the specific field of stage prop fabrication invalidated his opinion regarding the completeness of the Stage Prop. However, the Defendants countered by emphasizing the expert’s lengthy construction management background spanning over two decades, asserting that it qualified him to testify about the overall completeness of the Stage Prop.

    The Court ruled that the expert, despite acknowledged limitations outlined in his report, was qualified to testify on the Stage Prop’s overall completeness. While the Plaintiffs highlighted the disparity between complex construction projects and intricate stage prop fabrication as a reason to discredit the expert’s opinion, the Court found his experience and qualifications sufficient for providing expert testimony on the construction and fabrication progress of the Stage Prop.

    Although the Court acknowledged the expert’s lack of knowledge in specific finishing work for the Stage Prop, deeming it different from his expertise, it viewed this aspect as affecting the weight of his expert testimony rather than its outright admissibility. Thus, the Court permitted the expert to offer expert rebuttal testimony, confined within the parameters outlined in his report.

    The reliability of the expert’s methodology was a point of contention. The Plaintiffs challenged the methodology, pointing out limitations in physical inspection and comprehensive information, which they argued undermined the expert’s opinion. However, the Defendants defended the reliability based on materials provided during discovery, including photographs, videos, design plans, and construction documents related to the Stage Prop.

    The Court, citing Federal Rule of Evidence 703, noted that the expert had access to adequate materials to apply his expertise, despite acknowledging limitations in his review. It highlighted that while the deficiencies affected the weight of the expert’s assessment, they didn’t warrant exclusion, and could instead be addressed during cross-examination.

    Ultimately, the Court recognized the significance of the expert’s testimony in aiding the jury’s comprehension of the construction progress of the Stage Prop, despite the challenges raised by the Plaintiffs.

  • Court rejects estimates proffered by the Construction Expert Witness citing credibility concerns

    Court rejects estimates proffered by the Construction Expert Witness citing credibility concerns

    This lawsuit originated from the damage Hurricane Laura caused to First United Pentecostal Church of DeRidder (FUPC), a church in DeRidder, Louisiana, on August 27, 2020. Throughout the relevant period, the church was insured under a policy issued by Church Mutual Insurance Company (Church Mutual). Following the storm, FUPC engaged in a contract with Plaintiff Alex Howard, operating as ServiceMaster by Howard (ServiceMaster-Howard), a company based out of Alabama. The contract involved emergency cleaning, water mitigation, and restoration services. ServiceMaster-Howard subsequently filed a lawsuit against FUPC in this Court, asserting that both FUPC and Church Mutual had sanctioned the work but failed to settle the invoices. In response, FUPC filed cross-claims against Church Mutual, citing the latter’s alleged failure to promptly and adequately reimburse FUPC for losses covered under the insurance policy.

    The case went through the Court’s Streamlined Settlement Process for first-party insurance claims from Hurricanes Laura and Delta, but did not resolve. It was originally set for a jury trial in April 2023, but the Court granted Church Mutual’s motion to continue the trial to allow more time for discovery. The new trial date was set for November 2023.

    FUPC timely designated Keith Meranto as an expert witness, specifying him as a general contractor. The designation indicated that Meranto would testify in alignment with his report and expertise, encompassing Hurricane damage to the First United Church and Family Life Center, including reconstruction costs. The attached report featured a two-paragraph narrative and provided estimates for the rebuilding of both the church and Family Life Center.

    On October 4, 2023, FUPC submitted supplemental discovery responses, which included the December 2022 contract between FUPC and Meranto Construction for the reconstruction and renovation of the church. Additionally, payment applications and invoices from December 2022 onward for the ongoing project were provided. The contract referred to a “Budgetary Schedule of Values” and an “attached schematic proposal,” outlining the scope of the church’s remodeling project. These documents, along with associated design plans, were only disclosed to Church Mutual on October 9, 2023. Meranto’s estimate for the entire project amounted to $3.7 million, whereas the estimate for hurricane repairs provided by the Plaintiff’s public adjuster was $1.5 million. On October 10, Meranto underwent deposition, during which he affirmed that he did not provide any opinions on causation. He also acknowledged that his involvement with the church extended beyond hurricane damage, and he could not distinguish between hurricane repair work and other renovations in his estimate.

    Church Mutual filed a motion seeking the exclusion of all expert opinion evidence from Meranto, contending that his original report failed to establish his expertise in accordance with Rule 26(b)(2), Federal Rule of Evidence 702, and  Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The argument also asserted that Meranto’s opinions lacked relevance to the ongoing litigation. In response, the Plaintiff opposed the motion, asserting that Meranto was qualified to provide an estimate of repair costs and had cooperated to the best of his abilities in supplying documents to the defense counsel. 

    Construction Expert Witness

    Keith Meranto has over 14 years of experience in construction and project management roles. He currently serves as the Owner/Construction Manager of Meranto Construction. Meranto has an extensive expertise in various areas including general contracting, project management, quantity take-offs, and design-build projects. 

    Discussions by the Court

    Under the Federal Rules of Civil Procedure, a party is required to disclose the identity of any expert witness intended for trial, accompanied by a written report prepared and signed by the witness, as outlined in Fed. R. Civ. P. 26(a)(2)(B). This report is mandated to include a comprehensive statement of all opinions the witness would express, along with the basis and reasons for those opinions, as specified in Rule 26(a)(2)(B)(i). The rule does not restrict an expert’s testimony to merely reading the report; rather, it anticipated that the expert would supplement, elaborate upon, and explain the report in oral testimony, quoting Thompson v. Doane Pet Care Co., 470 F.3d 1201, 1203 (6th Cir. 2006). However, the Court held that a complete report is required to provide the substance of the testimony the expert intended to offer along with the reasons supporting it, citing Rule 26 Advisory Committee Note, 1983 Amendments. These requirements aimed to prevent unfair surprise. Consequently, an expert who failed to provide a report in compliance with Rule 26(a) should not have been allowed to testify unless such failure was deemed harmless, citing Fed. R. Civ. P. 37(c)(1).

    The trial Court, following Daubert and Kumho Tire, acts as a gatekeeper in assessing the relevance and reliability of expert testimony. Federal Rule of Evidence 702 outlines three criteria for evaluating expert challenges: 1) expert qualifications; 2) relevance of proposed testimony; and 3) reliability of principles and methodology. The proponent bears the burden of proving admissibility. The Court has wide discretion, with rejection of expert testimony being the exception. The Court’s gatekeeping role doesn’t replace the jury but complements the traditional adversarial system. Cross-examination and presentation of contrary evidence are the primary means to address admissible but shaky expert evidence.

    Church Mutual Insurance Company alleged that Meranto’s report for the first United Pentecostal Church in Deridder failed to meet the mandatory requirements outlined in Rule 26(a). The report, consisting of a mere two-paragraph narrative, was notably lacking in crucial details. It briefly mentioned Meranto Construction being summoned by Pastor Lewis to assess damage sustained by the church and gym due to a hurricane, without specifying the nature of the damage or its cause, be it from hurricanes Laura or Delta, pre-existing issues, or wear and tear. Additionally, the report did not elucidate the methodology used to ascertain the cause of the damage, the rationale behind the budgetary figures, the materials earmarked for use, or the involvement of vendors and subcontractors in supplying materials and labor. Furthermore, it omitted crucial aspects such as contracts or bids acquired from vendors/subcontractors forming the pricing foundation, the scope of renovations or upgrades planned, necessary work mandated by codes or ordinances, and the specifics of the permitting application submitted for a project of this scale.

    Meranto’s testimony during the proceedings underscored his clear lack of opinion regarding the property’s extent of hurricane damage. He emphasized that his work’s scope was solely defined by the tasks requested by his client, FUPC, disregarding any considerations related to damage assessment. Notably, he explicitly stated: firstly, his absence of an opinion on the magnitude of hurricane damage; secondly, the disparity between his contracted budget and the actual cost required for hurricane repairs; thirdly, FUPC’s specific requests for upgrades and remodeling distinct from hurricane-related fixes; fourthly, his inability to provide an estimated budget exclusively dedicated to hurricane repairs; and finally, his lack of awareness regarding the allocation within his budget for ordinance and code compliance, despite acknowledging that these expenses exceeded $100,000, reaching the policy sub-limit of $100,000.

    The Court observed that Meranto’s report, though brief, left no question about his qualifications as a contractor or his proficiency in cost estimation. However, both his report and testimony indicated that his estimate lacked credibility as a measure of repair costs for covered damages. Consequently, there was a significant risk that it could confuse or mislead the jury. The Plaintiff was advised to rely instead on the repair cost estimate from its public adjuster and invoices for completed work that could be directly linked to the damages.

    Held

    The Court granted Church Mutual’s motion in limine and barred Keith Meranto from offering any expert testimony in the case. The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.

    Key Takeaways

    Firstly, adherence to Rule 26(a) is paramount, demanding comprehensive reports from expert witnesses to prevent unexpected revelations during trial. Secondly, courts assume the role of gatekeepers, evaluating the relevance, reliability, and admissibility of expert testimony as per Federal Rule of Evidence 702, emphasizing expert qualifications, relevance, and methodological reliability. The burden of proving admissibility rests with the proponent, allowing courts wide discretion while maintaining the exceptionality of rejecting such testimony. This gatekeeping role serves to complement the adversarial system, enabling cross-examination and contrary evidence presentation to counterbalance uncertain expert evidence. Mandatory report requirements necessitate detailed opinions, methodologies, and supporting reasons, crucial in avoiding jury confusion or misinterpretation. Highlighting an expert’s limitations and scope prevents misconceptions about testimony credibility. In cases involving repair estimates, reliance on credible assessments directly linked to damages, such as those from public adjusters or invoices tied to damages, is advisable. Ultimately, ensuring clarity, relevance, and direct applicability of expert testimony to the case’s factual context helps prevent potential confusion or misleading interpretations for the jury.

  • Court Finds Construction Expert’s Testimony Regarding Causation, Damages, and Industry Standards Helpful Despite Limited Role in Underlying Insurance Claim Evaluation

    Court Finds Construction Expert’s Testimony Regarding Causation, Damages, and Industry Standards Helpful Despite Limited Role in Underlying Insurance Claim Evaluation

    This case involved an insurance dispute between Plaintiffs Bradford and Christy Boone (The Boones) and Defendant State Farm Fire and Casualty Company. The allegations centered around State Farm’s alleged failure to fulfill contractual obligations, engaging in bad faith practices, and committing constructive fraud in relation to the insurance claim made by the Plaintiffs. In April 2020, the Boones’ home suffered wind and hail damage. They submitted an insurance claim to State Farm, their insurer. The Boones alleged that State Farm conducted inadequate and delayed inspections of the property and offered inadequate compensation.

    Throughout the claims process, the Boones used contractor Bedlam Construction (Bedlam) and public adjuster Express Estimators (Express). After a September 2020 inspection, the State Farm adjuster allegedly informed Express that it was a “full buy,” leading Plaintiffs, Bedlam, and Express to assume that State Farm would cover the entire claimed damages to the dwelling, pool house, and carport. Subsequently, Plaintiffs engaged Bedlam for repairs. State Farm initiated its initial payments of $25,822.04 in October 2020, following the commencement of these repairs. In December 2020, after the completion of repairs, Plaintiffs approached State Farm to inquire about the status of the claim and outstanding payments. The claims process continued through 2020 and into 2021, prompting Plaintiffs to seek legal representation in January 2021 and file a lawsuit in September of the same year.

    In August 2022, State Farm enlisted Michael Berryman to conduct an additional inspection of Plaintiffs’ property. Berryman provided his estimate of the claim in September. By December 2022, State Farm, relying on Berryman’s estimate, indicated that a supplemental payment would be issued. In January 2023, a payment of $33,232.54 was issued.

    In March 2023, State Farm disclosed Berryman as an expert witness, and his report, based on the August 2022 inspection, documents, and deposition transcripts, became the focus of Plaintiffs’ motion. Berryman intended to testify on: (1) the extent of storm damages on the date of loss and expected repair costs; (2) the reliability of Bedlam’s damage estimate and its performance as the property restoration contractor; and (3) the reliability of Express’s damage estimates.

    Berryman listed his conclusions as follows:

    • Hail impacted the roof systems of the home, detached carport, and pool cabana during their service lives. While the hail caused minor cosmetic denting to gutter screens, downspouts, and copper chimney flues, it was insufficient in size to damage the 30-year laminated asphalt roof shingles of the home or the modified bitumen roof of the pool cabana. Wind damage was observed on the home’s roof but not on the roofs of the detached carport and pool cabana. Interior damage in the home was limited to the ceilings of the Northeast Bedroom and potentially a portion of the Formal Living Room. The work undertaken for the interior by Boone was considered excessive.
    • Bedlam, the involved party, was noted for failing to cooperate with State Farm as expected, and they did not keep their customer, the Boones, adequately informed during the property restoration process. The scope of repair work carried out by Bedlam was considered excessive, surpassing what was necessary to address storm damages.
    • The Boones engaged the services of a public adjuster named Express Estimators (Express). Estimates created by Express on August 17, 2020, and August 18, 2020, were deemed inadequate for determining the required cost to restore the property to its pre-loss condition. These estimates failed to support the Boones’ claim or the scope of work and costs presented by Bedlam.

    The Boones moved to exclude Berryman’s testimony as unhelpful and relying on insufficient basis.

    Construction Expert Witness

    Michael James Berryman is a construction expert witness based in Oklahoma. Berryman earned a Bachelor of Arts degree in Molecular Biology from Vanderbilt University in 1979. He currently serves as the President and CEO of Berryman Enterprises, Inc., an Oklahoma-based general contracting and consulting company that he owns and operates. Berryman also works directly as a general contractor and consultant in Oklahoma City, Oklahoma. Over the course of his extensive career, he has published works relating to the construction industry.

    Discussions by the Court

    The analysis of Plaintiffs’ motion begins with Rule 702, which sets forth criteria for expert testimony admissibility. The rule requires the proponent to demonstrate that the expert’s knowledge will aid the trier of fact, the testimony is based on sufficient data, relies on reliable principles and methods, and reflects a reliable application of those principles to the case. The Court serves as a gatekeeper to ensure the reliability of expert testimony. In this case, Plaintiffs did not contest Berryman’s qualifications or the reliability of his principles and methods but argued that his opinions were unhelpful and based on insufficient facts. 

    Most of the Plaintiffs’ arguments center on the issue of whether Berryman’s testimony would be helpful to the trier of fact. Specifically, Plaintiffs contended that (1) an expert witness was unnecessary in this case, as State Farm did not employ one when assessing Plaintiffs’ insurance claims; (2) Berryman’s testimony would contravene the principles established in Buzzard v. Farmers, 1991 OK 127, 824 P.2d 1105, since he relied on information that was not considered by State Farm during the handling of Plaintiffs’ insurance claims; (3) Berryman’s opinions concerning the performance and estimates of Plaintiffs’ contractors lacked relevance; and (4) Berryman’s viewpoints would encroach upon the trier of fact’s role in assessing witness credibility.

    Plaintiffs contended that Berryman’s testimony would not aid the trier of fact, asserting that State Farm never deemed an expert necessary to assess their claim. State Farm countered by asserting that it did hire Berryman to evaluate the claim and utilized his estimate to provide additional insurance benefits to Plaintiffs. The Court rejected Plaintiffs’ argument, emphasizing the lack of a legal basis to claim that hiring an expert for litigation requires prior expert involvement before litigation commenced.

    Plaintiffs argued that Berryman’s report should be excluded under Buzzard, contending that State Farm used his expert opinion as a post-denial rationalization for denying their claim. Plaintiffs claimed that the majority of materials in Berryman’s report were unknown or not relied upon by State Farm during the initial claim evaluation. The Court rejected the argument that Berryman’s involvement in handling Plaintiffs’ claims should automatically render his opinions admissible, leaving the decision to the district judge, particularly if Berryman testifies as a fact witness under Rule 701.

    A bad faith insurance claim hinges on the actual reason provided by the insurance company when denying the claim, not on a post-denial rationalization, making evidence supporting the latter inadmissible under Buzzard. However, such evidence may be admissible for other purposes. 

    In this case, Berryman’s opinions extend beyond State Farm’s alleged bad faith, encompassing issues such as the physical damage caused by the insured event and the reasonableness of expenses incurred by the Boones. These aspects directly relate to Plaintiffs’ damages, a crucial element of their claims. The relevance of Berryman’s testimony to the trier of fact is evident, as it addresses essential components of the breach of contract and bad faith claims. State Farm argues that if Plaintiffs’ expert testimony is deemed helpful, Berryman’s rebuttal would also provide valuable insights to the trier of fact.

    The remaining portion of Berryman’s testimony focuses on assessing the adequacy of Plaintiffs’ contractor’s performance. The admissibility of expert testimony hinges on its helpfulness to the trier of fact, as established in Wilson v. Muckala, 303 F.3d 1207, 1219 (10th Cir. 2002). In situations where laymen jurors possess sufficient experiences and qualifications to draw conclusions from presented facts, expert testimony becomes unnecessary and inappropriate. Similar to the evaluation of damages estimates, the standards by which contractors operate in specialized circumstances may not be readily understood by laypersons. Moreover, Berryman’s testimony on the adequacy of the contractor’s performance is relevant to determining the causation and extent of Plaintiffs’ damages, thereby serving as valuable information for the trier of fact.

    Plaintiffs contested the inclusion of Berryman’s report and testimony regarding their general contractor, Bedlam, arguing that State Farm’s non-delegable duty of good faith made actions by third parties irrelevant. Berryman provided opinions on Bedlam’s overall performance and practices, including compliance with its contract, industry standards, communication with Plaintiffs, and cooperation with State Farm. Plaintiffs claimed that the actions of third parties like Bedlam were irrelevant, given State Farm’s duty. However, Berryman’s analysis was considered directly relevant to the extent of damages suffered by Plaintiffs, and State Farm argued that it needed further information to evaluate the claim. The Court did not preemptively exclude Berryman’s testimony on the basis of Bedlam’s contract but left room for reconsideration during trial and evaluation of potential confusion or unfair prejudice.

    Plaintiffs argued that Berryman’s testimony was not helpful to the jury, contending that it intruded on the jury’s role in assessing credibility and reliability. The Court rejected this argument, noting that Berryman’s testimony addressing the substance of other experts’ opinions and the reliability of damage estimates had already been deemed admissible. Additionally, the Court rejected the notion that Berryman impermissibly commented on the credibility of other witnesses, citing legal precedent that credibility determinations are generally not appropriate subjects for expert testimony. The Court clarified that Berryman’s report focused on the quality and accuracy of others’ work and provided rebuttal evidence to Plaintiffs’ claimed damages, without making explicit credibility determinations. Consequently, the Court found Berryman’s testimony permissible, allowing him to testify on the reliability of estimates provided by Express, while Bedlam could explain any faults in the estimates.

    Plaintiffs’ final argument revolves around the adequacy of the facts or data on which Berryman based his testimony. They claimed that Berryman relied on inaccurate and incomplete information, specifically noting his omission of depositions from State Farm Team Manager Roger Clark and corporate representative Brett Barthelme. Defendant countered that Berryman did not have access to these depositions at the time of his report and, if the opinions were affected, a supplemental report would have been provided. The Court, applying the standard from Rule 702, aimed to ensure that Berryman’s testimony met the intellectual rigor of his field and concluded that, while Plaintiffs asserted Berryman overlooked certain details, the overall basis for his opinions was likely sufficient. The Court deemed any issues with omitted information as matters of weight, not admissibility, and highlighted the opportunity for cross-examination and presentation of contrary evidence during trial.

    Held 

    The Court issued an order denying Plaintiffs’ Motion to Strike Defendant’s Expert Michael Berryman and his Expert Report. The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.

    Key takeaways

    This case demonstrates that expert witness testimony may still be helpful and admissible even if the Defendant did not rely on an expert when initially handling the underlying claim or transaction. The testimony cannot serve as a post-hoc rationalization prohibited by Buzzard, but it may permissibly go to other disputed issues like causation and damages.

    Additionally, expert testimony rebutting the opinions and estimates provided by the opposing party’s experts is likely to be helpful to the trier of fact. Evaluating the reliability of evidence goes to weight, not necessarily admissibility.

    Finally, critiquing the methodologies and conclusions of another expert or participant in the events does not always equate to an impermissible credibility determination. Assessing reliability does not usurp the role of the fact-finder in assessing truthfulness.