Expert Witness Profiler

Category: Insurance Adjuster Expert Witness

  • Architecture Expert’s Opinions on Causation and Damages Admitted

    Architecture Expert’s Opinions on Causation and Damages Admitted

    Plaintiffs Michael Gerstman and Marie Webster, the insureds, sued Defendant Crestbrook Insurance Company (“Crestbrook”), their insurer, to recover on contractual and extracontractual theories arising from Crestbrook’s denial of their claim in this storm damage insurance coverage dispute.

    Crestbrook filed a motion to strike the testimony of Plaintiffs’ experts, Dr. Neil Hall and Kevin Funsch.

    Architecture Expert Witness

    Neil B. Hall is the owner and principal of Groundtruth Forensics, a consulting firm specializing in building performance, failure analysis and damage assessment.

    Hall is a member of the American Institute of Architects, American Society of Civil Engineers, Structural Engineering Institute, Construction Specifications Institute, International Institute of Building Enclosure Consultants, American Society of Safety Professionals and Association of State Floodplain Managers.

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

    Insurance Adjuster Expert Witness

    Kevin C. Funsch is an insurance adjuster and engineer with a solid background in claims handling and estimating. He has experience in adjusting property losses, performing appraisals, and writing expert reports.

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

    Discussion by the Court

    Neil Hall

    Crestbrook filed a motion to strike Hall’s opinions on the basis that they are irrelevant, and it contended that his opinion regarding the full replacement of the roof should be excluded because it is unreliable and lacked a clear or verifiable methodology.

    Crestbrook first contended that Hall’s opinions should be excluded as irrelevant because there is no dispute as to the scope of the damages at issue in this case. Plaintiffs countered that Hall’s opinions on causation and damages will certainly help the trier of fact understand the cause and extent of the damages at issue in this case.

    Hall’s expert opinions suggested that there may be more damages at issue than Crestbrook is willing to acknowledge when it maintained that it was only obligated to pay the cost of replacing the individual damaged tiles.

    Therefore, the Court declared that Hall’s opinions regarding the cause of the damage would assist the jury in understanding the evidence and in determining a fact in issue.

    Crestbrook also contended that Hall’s opinions regarding the necessity of replacing the entire roof in the absence of available matching tiles are unreliable and not based on any clear or verifiable methodology. However, Hall’s report and CV plainly showed that his reliance on his experience makes his opinions on the repairs required to bring the Property back to pre-loss condition sufficiently reliable for purposes of Rule 702.

    And to the extent that Crestbrook maintained that Hall did not make “any effort to determine whether ‘matching’ tiles were available,” the Court held that this fact, if true, would not undermine the reliability of his opinion that the entire roof would need to be replaced if matching tiles were unavailable in sufficient quantity.

    Kevin Funsch

    Crestbrook contended that Funsch’s estimate and opinions related to the full replacement of the roof are irrelevant because they will not assist the jury in determining whether Crestbrook underpaid the claim.

    It maintained that they are unreliable insofar as they rely on Hall’s opinion that the roof may need to be completely replaced if there are not sufficient matching tiles with which to replace the damaged tiles.

    The Court disagreed with Crestbrook’s assertion that Funsch’s opinions and estimate are irrelevant because they will not assist the jury in determining whether Crestbrook underpaid the claim. This contention is based on Crestbrook’s position that it is not required to replace the entire roof under the Policy and that the estimated cost of replacing the roof is not relevant.

    Because there remains a genuine issue of fact as to whether Crestbrook was required to pay the cost of replacing the entire roof in the absence of the availability of matching tiles, the Court held that Funsch’s estimate regarding the cost of replacing the roof is relevant.

    Crestbrook contended that Funsch’s estimate and opinions related to the full replacement of the roof are unreliable insofar as they rely on Hall’s opinion that the entire roof may need to be replaced if there are insufficient matching tiles to replace the damaged tiles. However, Crestbrook did not maintain that Funsch has relied on unreliable sources in determining the cost to replace the roof.

    Instead, the objection seemed to be that Funsch included in his damages calculation the cost of replacing the roof based on Hall’s opinion that the entire roof may need to be replaced. However, the Court held that this does not make Funsch’s calculation unreliable for purposes of Rule 702.

    Held

    The Court denied Crestbrook’s motions to strike the testimony of Plaintiffs’ testifying experts Dr. Neil Hall and Kevin Funsch. 

    Key Takeaway:

    Hall relied on his own inspection of the property, as well as weather data. His attached CV demonstrates his extensive education and professional experience in engineering and architecture.

    By extension, Funsch’s estimate and opinions are reliable because they are based on Hall’s recommendations, which, in turn, are grounded in reliable weather data and decades of experience. The opinions are also relevant, as they help determine the cost of the repairs.

    Case Details:

    Case Caption: Gerstman Et Al V. Crestbrook Insurance Company
    Docket Number: 3:24cv635
    Court Name: United States District Court, Texas Northern
    Order Date: June 09, 2025
  • Insurance Adjuster Expert Witness Properly Justified the Inclusion of OSHA Compliance Costs 

    Insurance Adjuster Expert Witness Properly Justified the Inclusion of OSHA Compliance Costs 

    The present case involves an insurance coverage dispute between an East Texas church, Plaintiff Christian Heritage School c/o Youth With a Mission, and its insurance company, Central Mutual Insurance Company. Between  May 1, 2020, to May 1, 2022, Defendant insured Plaintiff’s property, which consisted of a twenty-one building campus in Tyler, Texas. The dispute arises from alleged storm-related damage with a date of loss on April 5, 2022.

    Pursuant to Federal Rule of Civil Procedure 26(a)(2), Plaintiff retained insurance adjuster expert witness, Duane Smith. Smith was supposed to testify about his inspection, investigation, and observations of the property damaged by a hail and wind event on April 5, 2022. His designation also indicated that he would testify to the reasonable costs to repair and/or replace the property that was damaged by the hail and wind event reported to have occurred on April 5, 2022. 

    Smith’s report included a discussion of his qualifications and experience, the materials he reviewed, his findings, and relevant weather information. Based on this information, he included line items for the property with the estimated costs to repair and/or replace the property.

    Defendant moved to exclude Smith from offering opinion testimony on the timing and cause of the claimed damages to the campus, the necessity of replacing roofs rather than repair, and the cost of Occupational Safety and Health Administration (‘OSHA’) compliance and upcharges in his estimate. 

    Insurance Adjuster Expert Witness

    Insurance Adjuster Expert Witness

    Darrell Duane Smith has been a licensed public insurance adjuster since 2016. With approximately 19 years of experience as an independent insurance adjuster, he has managed numerous commercial and residential insurance claims.

    Through these experiences, Smith has adjusted hundreds of wind and hail events, water damage, and fire damage claims during his career, including both commercial and residential claims.

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

    Discussion by the Court

    I. Methodology Regarding Causation and Replacement

    Defendant’s Arguments

    Defendant argued that Smith’s own weather data showed no hailfall at the campus and that he conducted no testing. Defendant claimed that Smith provided no weather data indicating that wind or hailfall occurred on the campus on April 5, 2022 and that he failed to consider all information to exclude other potential causes of damage to the campus, such as pre-existing damage or post date of loss damages.

    Plaintiff’s Counter-Argument

    Plaintiff pointed out that Smith examined storm data from May 3, 2017, to April 5, 2022, to assess other potential storms but concluded that “the distinctive size, shape, and pattern of the hail damage conclusively established the April 5, 2022 hailstorm as the cause of damage.” Plaintiff also cited to Smith’s report where he concluded this same fact and explained, based upon coloration of old hail damage (discolored, grey, or whited out), versus the characteristics of hail damage that appeared to be “fresh” and consistent in size and shape with the April 5, 2022 storm. Smith also assessed the storm created openings for the roof and water damage, which was consistent with the April 5, 2022 storm due to lack of “long-term” aging.” 

    Plaintiff argues that Defendant’s arguments went to the weight of Smith’s opinions, not the admissibility of them.

    Causation

    Smith reviewed weather information from the National Oceanic Atmospheric Administration (“NOAA”) in order to determine which storms, if any, other than April 5, 2022 storm, affected the property. His search covered the period from May 3, 2017, to April 5, 2022, which he provided rules out any other possible date of loss.

    Moreover, Smith testified that when he inspected the property in 2023, he was able to distinguish between old and new damage based upon the repairs that already took place and the fact that the marks seemed to be “fresh” because they were not discolored, old, grey, or turning white like might be expected with aging. 

    Similarly, Smith opined that water damage observed at the property did not exhibit signs of long-term aging, or indicate a long-term ongoing issue nor are there signs of historical repairs at the affected locations. He stated that he considered alternative causes of loss, including foot traffic, wear and tear, and deterioration and concluded that no evidence consistent with these causes of damage was found.

    Replacement Versus Repair

    As to the necessity of replacement versus repair, Smith explained how he based his conclusions on his own inspection and experience. Smith line itemed the inspection damage in his expert report. He explained how upon inspection, he observed a significant number of unsealed tabs consistent with high wind, as well as hail damage to shingles and metal roofing. He stated that, based upon the damage he observed, it wouldn’t have been feasible to try to conduct repairs because the damage to the roofs was too widespread.  This is the basis of his opinion recommending replacement.

    The Court found that Smith’s report and testimony explained how he determined, based upon his experience, inspection, and review of the weather data, that the April 5, 2022 storm caused the damage. This included observations regarding prior storms from the weather data, the condition of the damage upon inspection as it relates to characteristics of time and wear, and the possibility of damage from post-date storms which he found occurred not in the relevant area and were several miles away. It was held that this evidence demonstrated that Smith examined other potential causes, thereby rendering his methodology and opinions reliable for purposes of determining admissibility under Daubert and Rule 702.

    The Court held that the Defendant may have identified weaknesses in Smith’s opinions, but it does not render them ipse dixit merely because Defendant disagrees with his conclusion. The credibility of Smith’s opinions remained a matter for the jury to consider.

    II. OSHA Compliance

    Defendant argued that Smith included Kevin Dandridge’s incomplete estimate for OSHA safety protocols and procedures in his estimate, making it unreliable. Dandridge was retained to testify about to the proper OSHA safety protocol and procedures.

    The Court held that Smith’s reliance on Dandridge’s OSHA compliance costs was not atypical. The Court, in a separate order, held that Dandridge’s testimony in this regard is permissible. As Dandridge himself explained, these opinions can be reconciled. To the extent the reliance is flawed, or Dandridge’s opinions are based upon a weak foundation, then, again, that remains a matter for cross examination.

    III. 20% Inflation Adjustment

    Lastly, Defendant argued that Smith included a 20% blanket inflation adjustment without providing a sufficient methodology.

    According to the Court, had Smith simply added a blanket 20% inflation adjustment without explanation, then such a methodology would be unreliable. However, Smith has explained his reasoning for this adjustment. As he testified to this point, “because all the major suppliers are sending out demand surge notices and informing all the contractors that due to the supply and demand, that all the materials have went up at least 20 percent, if not more.” 

    Smith further explained his experience with typical surge pricing due to storm demand having been involved with hurricanes. 

    Held

    The Court denied the Defendant’s motion to strike the expert testimony of Plaintiff’s insurance adjuster expert witness, Duane Smith.

    Key Takeaways:

    • According to Rule 703, an expert may also rely upon the opinion of another expert, as long as the other expert opinion upon which the expert bases an opinion or inference are of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject. In conclusion, Smith’s reliance on Dandridge’s OSHA compliance costs was not atypical.
    • Defendant may have pointed out weaknesses in Smith’s opinions, but it does not render them ipse dixit merely because Defendant disagrees with his conclusion. This is simply a matter of credibility of the expert, which the jury can properly consider. 
    • Smith’s testimony explained how he determined, based upon his experience, inspection, and review of the weather data, that the April 5, 2022 storm caused damage to the property. This included observations regarding prior storms from the weather data, the condition of the damage upon inspection as it relates to characteristics of time and wear, and the possibility of damage from post-date storms which he found occurred not in the relevant area and were several miles away. This evidence demonstrates that Smith examined other potential causes, thereby rendering his methodology and opinions reliable.

    Case Details:

    Case caption: Christian Heritage School c/o Youth With A Mission v. Central Mutual Insurance Company
    Docket Number: 6:24cv45
    Court: United States District Court for the Eastern District of Texas, Tyler Division
    Date: February 6, 2025
  • Insurance Adjuster Expert Witness’ Testimony Admitted Despite Methodological Deficiencies in Gathering Prices

    Insurance Adjuster Expert Witness’ Testimony Admitted Despite Methodological Deficiencies in Gathering Prices

    Plaintiff Ram Krishana Inc., a Louisiana business owned by Mukesh and Kailash Zaveri, operated as Motel 6 (“Hotel Property”) at 2022 Ruth Street, Sulphur, Louisiana. ANK Holdings, LLC, a Louisiana limited liability company with the same Mukesh and Kailash Zaveri as its only members, owned a restaurant (“Restaurant Property”) at an adjoining address.

    Defendant Mt. Hawley Insurance Company issued Ram Krishana an insurance policy covering both the Hotel and Restaurant Properties for the period from  June 27, 2020, to June 27, 2021.

    This case involves an insurance claim relating to alleged damages to Plaintiff’s hotel complex resulting from Hurricanes Laura and Delta, which occurred in August and October 2020, respectively.

    On July 12, 2024, Mt. Hawley filed a Daubert motion to exclude Plaintiff’s insurance adjuster expert witness, Jeffrey Major, from testifying on causation and amount of loss.

    Insurance Adjuster Expert Witness

    Jeffrey S. Major is a licensed public insurance adjuster in over 40 states and territories including being a licensed public adjuster and registered appraiser in the State of Louisiana and a licensed public adjuster in New York.

    He has been adjusting, substantiating and estimating property damage claims to repair and replace property for Reserve, Actual Cash Value (ACV), and Replacement Cost Value (RCV) purposes for over 30 years.

    He has estimated using the property damage estimating program Xactimate for over 18 years.

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

    Discussion by the Court

    Expert Report

    In his expert report, Major provided his estimate of damage to the Properties. He opined that Mt. Hawley improperly estimated damages, undervalued the claim, and failed to make proper actual cash value payments in a timely manner. Major estimated the actual cash value of the loss is $1,342,605.08. His expert report relied in part on estimates calculated in a software program called Xactimate.

     Xactimate supplies default prices, but users can, as Major did here, input prices themselves. 

    Mt. Hawley’s Arguments

    Mt. Hawley did not challenge Major’s qualifications. The Court reviewed Major’s training and experience and concluded that Major was qualified to testify about replacement cost valuation and insurance adjustment considering he has adjusted numerous insurance claims arising from hurricanes in the Louisiana area.

    Rather, Mt. Hawley argued that Major’s opinions were unsupported and unreliable based on the price inputs underlying his cost estimates using Xactimate. Mt. Hawley did not argue that Xactimate is an unreliable tool for cost estimation in the insurance industry and Ram Krishana cited several cases approving the use of this common software program. Instead, Mt. Hawley claimed that Major’s opinions are unreliable because the cost information that he purportedly entered into the Xactimate tool for some prices was based only on his general experience and no documentation or objective substantiation for those estimates was provided.

    Major had gathered prices from “actual builders who did the work in this event,” “invoices from contractors and their estimates,” invoices he reviewed, and interviews with contractors, as well as work he did as an adjuster on similar claims during the relevant period.

    Numerous courts have considered Daubert challenges to experts who used Xactimate, but deviated from the default prices or otherwise purportedly erred, and have found that such challenges go to the weight to give an expert’s opinions, not the admissibility of their testimony. 

    La Gorce

    Mt. Hawley cited La Gorce Palace Condominium Ass’n, Inc. v. Blackboard Specialty Insurance Co., 586 F. Supp. 3d 1300 (S.D. Fla. 2022) in support of Major’s exclusion. However, the Court found the case distinguishable from the matter at hand.

    In that case, which involved a jury trial, the Court excluded the testimony of an expert who used Xactimate. Like Major, that expert input at least some of his own costs. However, the expert in La Gorce could not describe the methodology he relied on for calculating input values, did not explain an intelligible process for identifying which damages he deemed to preexist the hurricane nor even identify the damages he excluded on this basis, and could not provide any measurements associated with his estimated costs. The Court also questioned how the expert determined the cost of repair for such a large property over just two days. 

    In the present case, however, Major identified the particular prices that he independently input into Xactimate. He explained that the costs came from builders who did work in the storm that damaged Plaintiff’s property and his own experience in adjusting similar claims. While Major apparently did not have any documentation to support his estimates, deficiencies in his methodology for gathering prices did not reach the level of the methodological deficiencies in La Gorce, in which the expert could not explain how he gathered data or formed his damage estimations. Also, the expert testimony in La Gorce would have been presented to a jury rather than to the Court in a bench trial, as here.

    Analysis

    Hawley may well have strong cross-examination fodder based on the fact that Major has not produced records or written substantiation of the estimates that he included that were based on his expertise and experience. Such critiques will be closely scrutinized by the Court in determining the weight, if any, to afford Major’s opinions.

    Given that this case is set to be tried to the bench, unless the disputed evidence is wholly irrelevant or so speculative as to have no probative value, it is appropriate for the Court to take in the evidence freely and separate helpful conclusions from ones that are not grounded in reliable methodology.

    Held

    The Court denied Mt. Hawley’s Daubert motion to exclude the testimony of Plaintiff’s insurance adjuster expert witness, Jeffrey Major.

    Key Takeaway:

    The Court held that Major sufficiently explained his methodology and established its reliability, despite the apparent lack of documentation to support his estimates. Major identified the particular prices that he independently input into Xactimate and explained that the costs came from builders who did work in the storm that damaged Plaintiff’s property and his own experience in adjusting similar claims.

    Major did not produce records or written substantiation of the estimates that he included but the Court still refused to entirely exclude Major’s testimony.

    Case Details:

    Case caption: Ram Krishana Inc. v. Mt. Hawley Ins. Co.
    Docket Number: 1:22cv3803
    Court: United States District Court for the Southern District of New York
    Date: February 3, 2025