Expert Witness Profiler

Tag: Inspection

  • Forensic Engineering Expert Witness’ Testimony Admitted Despite His Reliance on Virtual Evidence

    Forensic Engineering Expert Witness’ Testimony Admitted Despite His Reliance on Virtual Evidence

    SFR Services, LLC (“SFR”) sued American Coastal Insurance Company (“ACIC”) for breach of an insurance policy (the “Policy”) based on ACIC’s failure to provide coverage and remit payment for damage sustained by Steamboat Bend Condominium Association, Inc. (“Steamboat Bend”) during Hurricane Irma. SFR is the assignee of Steamboat Bend’s rights under the Policy. 

    Plaintiff’s expert Grant Renne conducted a virtual inspection assisted by Durant Saint-Hilaire, a certified roofing inspector who was on-site during the inspection. Renne’s methodology complied with standard practices and used data from the National Oceanic and Atmospheric Administration (NOAA) and the National Weather Service (NWS). Renne’s report stated that his methodology was “based on ASTM E2713-18 (Standard Guide to Forensic Engineering), ASTM E1188-11 (Standard Practice for the Collection and Preservation of Information and Physical Items by a Technical Investigator), and E620-18 (Standard Practice for Reporting Opinions of Scientific or Technical Experts).” Renne prepared his report through “visual inspection of readily observable surfaces, collection of digital evidence, and rotation of roof tiles to determine attachment integrity.”

    Renne testified that he excluded from his analysis areas of prior repairs and areas of prior destructive testing. Renne’s report ultimately concluded that Hurricane Irma caused the damage. 

    ACIC argued that the report should be excluded because Renne’s inspection was done virtually and that Saint-Hilaire, the certified roofing inspector who was on-site during the inspection, did not possess the necessary qualifications. ACIC also argued that Renne’s report was based on insufficient facts and data because he did not interview unit owners and residents or review repair records related to the property, in contravention of the ASCE, ASTM, and his own report. ACIC’s final argument in favor of exclusion is that, because destructive testing was already done prior to Renne’s inspection, Renne’s conclusions were unreliable.

    Forensic Engineering Expert Witness

    Grant Renne has been a Registered Professional Engineer since 1990, completed over 6,000 property damage investigations throughout his career, and participated in over 400 cases. 

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

    Discussion by the Court

    Renne’s conclusion that Hurricane Irma caused the damage is based on his review of the buildings, velocity pressure calculations based on the American Society of Civil Engineers (ASCE) 7-10 formula, and historic NOAA weather data. 

    Renne’s Reliance on Virtual Evidence Does not Inherently Bar his Testimony

    At the onset, the Court rejected ACIC’s arguments regarding the virtual nature of the inspection and the destructive testing. An expert’s reliance on virtual evidence does not inherently bar his testimony. 

    Also, Saint-Hilaire possessed the technical qualifications required to participate in the on-site investigation. Renne testified that he never performed destructive testing, as the ASTM does not allow for destructive testing because the investigation cannot be repeated, tested, or verified. The fact that destructive testing was performed prior to Renne’s investigation did not render his investigation unreliable.

    Renne’s Failure to Interview Involved Parties did not make his Report Unreliable

    The Court rejected ACIC’s argument that Renne’s failure to interview these involved parties made his report unreliable. ASCE 30-14 stated that it only needs to be done “whenever possible,” not in all circumstances. However, the Court recognizes that Renne’s report is somewhat confusing, as he stated “[t]he following list of standard practices [were] performed” and then lists that “an interview with the property owner may be conducted either on site or via telephone.” Thus, the Court held that any discrepancies between Renne’s report and testimony should be addressed on cross-examination at trial. It goes to his credibility, not the admissibility of his testimony.

    Although Renne’s Review of the Repairs was Less than Thorough, that Alone does not Garner Exclusion of his Report

    At the crux of ACIC’s issue with Renne’s report is his failure to review repair records from repairs made by Steamboat Bend, despite his review of repair documents related to repairs made by SFR.

    ACIC also argued that Renne should not have excluded the areas of repair and deemed it contaminated evidence “unworthy of consideration in the formulation of his opinion.” 

    Renne testified that he relied on ASCE 30-14. ASCE 30-14 requires inspectors to “obtain and analyze any written documentation for alterations and repairs.” Renne’s report details that “areas of pre-loss repairs and/or post-loss mitigation [were] reviewed.”

    Indeed, Renne testified that he reviewed SFR’s repair records and visually reviewed repairs during his investigation. The Court concluded that, although Renne’s review of the repairs was less than thorough, that alone does not garner exclusion of his report as there was “adequate evidence that had not been repaired for him to formulate his opinion.”

    Held

    The Court denied the Daubert motion to exclude the testimony of Grant Renne without prejudice. ACIC may renew the motion as a motion in limine closer to trial.

    Key Takeaway:

    Renne’s report is not the model for clarity, yet “experts and their opinions need not be perfect to be admissible.” Renne’s application of his methodology is not so unreliable that the Court should exclude it out of hand. ACIC’s issues with Renne’s report can be used during cross-examination to potentially decrease the weight and credibility the jury gives to his opinion.

    Case Details:

    Case Caption: SFR Services, Llc V. American Coastal Insurance Company
    Docket Number: 2:22cv505
    Court: United States District Court, Florida Middle
    Order Date: February 7, 2025
  • Insurance Expert Witness’ Estimate Excluded Because Unknown Contractors Collected the Data

    Insurance Expert Witness’ Estimate Excluded Because Unknown Contractors Collected the Data

    Plaintiffs Gregory Hebbler and Marion Hebbler contracted with Defendant State Farm Fire and Casualty Company to insure their home located at 6009 Angler Drive, Picayune, Mississippi.

    On August 29, 2021, Hurricane Ida made landfall, purportedly damaging the residence. When Defendant conducted an on-site inspection and estimated the monetary damage caused by Hurricane Ida, it issued no payment because this figure fell below Plaintiffs’ deductible.

    Plaintiffs ultimately designated Rich Lyon as their sole expert witness, referencing a June 7, 2023, Estimate as his report, but they did not attach this Estimate to their designation. On July 1, 2024, almost three months after their expert designation deadline had passed, Plaintiffs submitted a supplemental designation, disclosing Lyon’s Supplemental Report.

    On August 19, 2024, Defendant filed the instant motion to strike Plaintiffs’ expert witness Rich Lyon.

    Insurance Expert Witness

    Rich Lyon is a licensed State of Louisiana Public Insurance Adjuster and Registered Insurance Appraiser. He is the owner and operator of Gulf Coast Adjusting, LLC. Gulf Coast Adjusting, LLC is a Louisiana-licensed and bonded company offering Public Adjusting, Insurance Claims Appraising, Insurance Claims Umpiring and Construction Estimating services throughout the states of Louisiana and Mississippi.

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

    Discussion by the Court

    A. Lyon’s reports

    1. The June 7, 2023, Estimate

    The June 7, 2023, estimate offered by Plaintiffs as Lyon’s initial expert report contains only damage estimates and includes no narrative language, explanations, or opinions as to causation. The Estimate valued the damage to Plaintiffs’ property at $144,661.05, with no amount specified for depreciation. The Estimate is based on a June 5, 2023, inspection that was conducted by an independent contractor hired by Lyon.

    2. The Supplemental Report

    In his supplemental report, Lyon for the first time offered an opinion as to causation, stating that Hurricane Ida caused the damage to Plaintiffs’ residence. This opinion is based upon “on-site inspections of the subject property, interviews with the property owner, . . . documentation provided to [him], [his] extensive work related to hurricanes [and] windstorms, and [his] accumulative experience in the construction and insurance industries gained over the past 25 years.”

    Lyon conducted an inspection of Plaintiffs’ property on June 24, 2024, which resulted in him revising the June 7, 2023, damage estimate downward to $75,707.42, again with no deduction specified for depreciation.

    B. Defendant’s Motions

    Defendant asked the Court to exclude the June 7, 2023, estimate because it was made by unknown independent contractors, such that the Court cannot test the reliability of its factual underpinnings or methodologies. Next, the Court should strike the supplemental report because it is not supplemental, but is in fact a new report, and was produced by Plaintiffs over two and half months after the expert designation deadline.

    1. Defendant’s challenge to the June 7, 2023, Estimate offered as Lyon’s expert report

    Defendant argued that Plaintiffs’ timely June 7, 2023, estimate is unreliable because it offered no causation opinions and because unknown independent contractors collected the data underlying the estimate and did the majority of the work creating it.

    Lyon affirmed under oath that both the inspector and estimators’ identities are protected by nondisclosure agreements, and he would not reveal them. Since Plaintiffs have not identified who conducted the inspection or created the Estimate, neither Defendant nor the Court can test the reliability of the data and methods employed in repairing it. On this record, Plaintiffs cannot meet their burden of showing that the bases and methodologies underlying the estimate are reliable, and the Court therefore rejected the June 7, 2023, estimate.

    2. Lyon’s Supplemental Report offering causation opinions

    Defendant next challenged Lyon’s supplemental report, disclosed after Plaintiffs’ expert designation deadline but prior to the close of discovery.

    It should be noted that Lyon’s supplemental report relies upon information gathered by an unknown independent contractor during the June 7, 2023, inspection, Lyon’s own inspection conducted on June 24, 2024, documentation provided to him, and interviews with Plaintiffs. With the exception of Lyon’s inspection, this information was available to Plaintiffs well before the expert designation deadline of April 9, 2024, and Plaintiffs have not offered any explanation why Lyon could not have conducted his inspection before the deadline. For these reasons, the Court concluded that the supplemental report is not supplemental but is in fact a new expert report, such that it could and should have been disclosed by April 09, 2024.

    Four factor analysis under Rule 37 to determine the proper sanction

    Starting with the fourth factor, the explanation for the failure to comply with the Court’s deadlines, Plaintiffs justify the late disclosure by stating that they paid out-of-pocket to repair their roof in July 2023.

    But Plaintiffs do not explain how the completion of these repairs prevented them from timely disclosing the supplemental report or why, if there was an issue, it could not be resolved in the nine months between the completion of repairs and the designation deadline of April 9, 2024.

    The third factor is the possibility of a continuance. This, according to the Court, weighs in favor of Defendant because the case is scheduled for Pretrial Conference next month and a continuance would only further delay this case, in essence rewarding Plaintiffs for failing to timely disclose the supplemental report without any justifiable explanation.

    The first factor is the importance of the witness’ testimony. Without Lyon, Plaintiffs cannot meet their burden of showing causation and Defendant will be entitled to summary judgment. But even where the expert testimony is significant, “the importance of such proposed testimony cannot singularly override the enforcement of local rules and scheduling orders.”

    Turning to prejudice, Lyon had the benefit of possessing Defendant’s expert report when he prepared the supplemental report, and Defendant’s expert’s ability to prepare his own report was impeded by not having access to Lyon’s supplemental report. Defendant would also be required to expend time and financial resources to prepare a response to Lyon’s new causation opinion, causing further prejudice. On balance, the Court held that this factors weigh in favor of excluding the supplemental report.

    The circumstances of this case warrant striking the Supplemental Report

    Plaintiffs argued that Defendant waived the right to challenge Lyon’s expert designation by failing to file its motion thirty days before the discovery deadline.

    The Court found that Plaintiffs attempted to frame Defendant’s argument as a challenge to the initial expert designation, when in fact Defendant is contending that the supplemental report itself introduces new expert testimony and is therefore not supplemental. This would mean that Defendant would have had to file its challenge to Plaintiffs’ disclosure no later than five days later. It would be unfair to permit Plaintiffs to violate their deadline for disclosing expert reports by almost three months, and then penalize Defendant for failing to file its motion to strike by the deadline because Plaintiffs served the supplemental report mere days before it passed.

    Held

    The Court found that Defendant’s motion to strike should be granted as to Plaintiffs’ expert Rich Lyon, and he will be excluded from testifying at trial. The
    Court also granted Defendant’s motion for summary judgment because Plaintiffs cannot make the requisite showing as to causation. Plaintiffs Gregory Hebbler and Marion Hebbler’s claims were dismissed with prejudice.

    Key Takeaways:

    • The Court excluded June 07, 2023, estimate offered as Lyon’s expert report because unknown independent contractors did the majority of the work creating it as a result of which the Court cannot test the reliability of its factual underpinnings or methodologies.
    • The supplemental report offered by Lyon is not supplemental but is in fact a new expert report, such that it could and should have been disclosed by April 09, 2024. It should be noted that Lyon’s supplemental report relies upon information gathered by an unknown independent contractor during the June 7, 2023, inspection, Lyon’s own inspection conducted on June 24, 2024, documentation provided to him, and interviews with Plaintiffs. With the exception of Lyon’s inspection, this information was available to Plaintiffs well before the expert designation deadline of April 9, 2024, and Plaintiffs have not offered any explanation why Lyon could not have conducted his inspection before the deadline.

        Case Details:

        Case Caption: Hebbler Et Al V. State Farm Fire And Casualty Company
        Docket Number: 1:23cv247
        Court: United States District Court, Mississippi Southern
        Order Date: December 18, 2024
        1. Industrial Hygiene Expert Witness’ Testimony Regarding the Mitigation Performed Admitted

          Industrial Hygiene Expert Witness’ Testimony Regarding the Mitigation Performed Admitted

          Plaintiff, MacNair, owned the immovable property located at 526-528 Belleville Street, New Orleans, Louisiana 70114 which she insured through Chubb. MacNair lived on one side of her home and rented out the other side. On August 29, 2021, Hurricane Ida caused severe damage to MacNair’s property including the roof, all elevations and all rooms in the interior. MacNair immediately reported the claim to Chubb.

          Chubb, through its agents, sent adjuster, Mike Weaver (hereinafter referred to as “Weaver”), to the property to inspect the home for damages. Weaver took photos of MacNair’s property during his inspection. Despite the open and obvious damages, Weaver’s estimate totaled $13,988.97 (RCV) and $13,048.27 (ACV). After the $5,820.00 deductible, the amount for repairs totaled $7,228.27. As part of his adjustment of MacNair’s claim, Weaver eventually issued a report and estimate. Nonetheless, Chubb refused to reinspect the property, despite MacNair’s numerous requests.

          Plaintiff alleged she continued to contact Chubb and Minuteman; eventually, she and the tenant moved out. She retained an attorney in November 2021 and sought a reinspection, among other things. Believing her home to be quickly deteriorating, despite a tarp on the roof, Plaintiff hired 911 Restoration to perform gutting and water mitigation services at the home. 911 Restoration took some 116 photographs of the damages before commencing work. Between December 22, 2021, and March 9, 2022, 911 Restoration performed mitigation and gutting services.

          MacNair invoked appraisal. Chubb responded through its attorney that it would participate in appraisal, but after the appraisers conducted a joint inspection in May 2022, Chubb withdrew from the appraisal process and requested MacNair’s examination under oath. MacNair filed her petition for damages against Chubb on January 9, 2023.

          Both parties later filed motions to exclude each other’s expert testimony.

          Industrial Hygiene Expert Witness 

          George F. Coto is a Senior Industrial Hygienist at EFI Global, Inc. Coto’s expertise is water and mold damage assessment, asbestos investigation and management, environmental site assessments, and industrial hygiene assessments.

          He holds a Bachelor of Science in Environmental Science with a Minor in Chemistry from McNeese State University. Coto has worked as an environmental consultant for the past twenty-two (22) years, conducting environmental and personnel exposure assessments for state governments, insurance carriers, and private industry.

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

          Appraisal and Valuation Expert Witness 

          Jeremy Belk has been a Louisiana-licensed adjuster since 2005. He has completed adjustments and appraisals for carriers, clients, and attorneys since 2005 in the state of Louisiana as well as other states. Since 2017 Belk has worked daily claims for various carriers, both residential and commercial. He is I.I.C.R.C. WTR certified (#70143683). He has also completed adjustments for various third-party administrators and carriers during this period in the states of Arkansas, Colorado, Georgia, Florida, Illinois, Indiana, Minnesota, Mississippi, Nebraska, North Carolina, South Carolina, Tennessee, Texas, and Utah. These included fires, floods, hail, tornadoes, and hurricanes claims.

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

          Discussion by the Court

          Plaintiff filed a motion to exclude the testimony of George Coto, an expert witness to be called by Defendant Chubb European Group, SE. In response, Defendant submitted a motion to exclude the testimony of Jeremy Belk, an expert witness to be called by Plaintiff. Both parties subsequently filed responses opposing each other’s motions.  

          A. Plaintiff’s Motion to Exclude George Coto 

          The purpose of Coto’s Report, produced in January 2024, is “to determine if the assessment and remediation conducted [by 911 Restoration] was reasonable and appropriate according to industry guidelines and standards and would support the work performed by 911 Restoration at the residence.”

          Plaintiff contended Coto’s testimony should be excluded as unreliable. She asserted Chubb limited Coto’s access to relevant information to obtain a skewed report by not providing him with their own independent adjuster’s report and the 132 photographs he had produced, as well as other information Coto admitted would have been relevant, such as interviews with witnesses who had first-hand knowledge of the damages.

          Plaintiff also asserted Chubb was given information that 911 Restoration had performed its mitigation work based solely on the inspection and the photographs of Glenn Willis, which she asserted was not true. Plaintiff next asserted that Coto had omitted a reference to wind-driven rain resulting from hurricane and tropical storms in his definition of Category 3 water infiltration. Thus, she contended that Coto’s report makes it appear that such infiltration can occur only from flooding due to rising water from rivers and streams and seawater or groundwater, when it can also arise from wind-driven rain.

          The Court held that Plaintiff’s challenge to the admissibility of Coto’s report and testimony is based on her belief that Coto should have considered other evidence and failed to do so, suggesting he may have been restricted intentionally by Chubb. The Court believed that her concerns regarding the evidence upon which Coto’s opinions are based can be addressed through cross-examination and the presentation of countervailing expert testimony.

          B. Defendant’s Motion to Exclude Jeremy Belk 

          According to Defendant, one year after Hurricane Ida had struck New Orleans, after Plaintiff had devised architectural plans to convert her double to a single, and after she had gutted the property, Plaintiff’s attorney contacted Jeremy Belk, a claims adjuster, to inspect the property and “to review the documents they sent [him] and give an assessment on the damages and write an estimate to go back as a single and a double.”

          Belk’s inspection occurred in November of 2022, according to Defendant, and his report, dated December 18, 2023, provides an estimate to convert the property to a single, which had already commenced, and an estimate to return it to a double. Belk’s report necessarily included total interior renovations of the property because it had already been gutted to the studs. Both estimates were of replacement costs rather than actual cash value, as required under the policy. Nothing in Belk’s report, Chubb asserted, attempted to connect the rebuild to damage from the hurricane.

          Defendant asserted that Belk’s opinions are unreliable, not based on a reliable methodology, and will not assist the jury. Defendant argued that the estimates are only of replacement value and do not account for depreciation and that Belk’s opinions as to converting the property to a single are based on what others told him, mainly Plaintiff. 

          The Court held that Defendant’s assertions of unreliability in Belk’s methodology are more properly attacks on the weight to give his opinions, based as they are on evidence and materials provided by others. The Court also held that Belk’s testimony as an adjuster is not scientific in nature. In other words, Belk’s testimony is related to his area of expertise.

          Held 

          • The Court denied Plaintiff’s motion to exclude Defendant’s industrial hygiene expert witness George Coto.
          • The Court also denied Defendant’s motion to exclude Plaintiff’s appraisal and valuation expert witness, Jeremy Belk. 

          Key Takeaway: 

          •  So long as the expert’s testimony is restricted to his area of expertise, “questions relating to the bases and sources of an expert’s opinion affect the weight to be assigned to that opinion rather than its admissibility and should be left for the jury’s consideration.” 
          • Plaintiff’s concerns regarding the evidence upon which Coto’s opinions are based can be addressed through cross-examination and the presentation of countervailing expert testimony.

          Case Details:

          Case Caption: Macnair V. Chubb European Group Se
          Docket Number: 2:23cv761 
          Court: United States District Court for the Eastern District of Louisiana 
          Order Date: September 27, 2024
        2. Legal Ethics Expert Witness’ Opinions Regarding a Conflict of Interest on Coverage Admitted

          Legal Ethics Expert Witness’ Opinions Regarding a Conflict of Interest on Coverage Admitted

          Plaintiff, Ansur America Insurance Company, sued Defendants, James A. Borland and Quinn, Johnston, Henderson & Pretorious, Chtd., an experienced defense lawyer and his law firm, for alleged legal malpractice in handling a complex product liability case in St. Clair County, Illinois. Plaintiff alleged that Defendants failed to meet the standard of care in representing Plaintiff in a tripartite relationship, where Plaintiff insured a company that sold the underlying plaintiff a shower stool that broke, causing her to fall and dislodge hardware recently placed by a surgeon in her spine.

          Defendant filed motions to excude the opinions of Plaintiff’s experts Falak Shah and Sari Montgomery.

          Structural Engineering Expert Witness

          Falak Shah, Ph.D., P.E., C.W.I., is a managing engineer in Exponent’s Mechanical Engineering Practice with experience assessing the performance, mechanical integrity, and fitness-for-service of structural and mechanical
          systems. His experience involves leading investigations of different structures, products, and mechanical systems in a broad variety of applications and a wide range of materials. He is a licensed professional engineer in the state of Illinois and is a certified welding inspector (C.W.I.), a certification from the American Welding Society (AWS). Shah has a Ph.D. and M.S. in civil engineering (with a specialization major in structural engineering)
          from the Georgia Institute of Technology and a B.S. in civil engineering from the University of Florida. He has completed advanced coursework in and has experience with the analysis and design of a variety of materials,
          including wood, metals, and composite materials. In addition to his degrees, licensure, and other certifications, he has a multidisciplinary certificate in the mechanical properties of materials.

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

          Legal Ethics Expert Witness

          Sari Montgomery received her B.A. at the University of Chicago and her J.D. at Loyola University Chicago. Since her graduation in 1994, she has worked as Litigation Counsel for the Illinois Attorney Registration and Disciplinary Commission (“ARDC”) and was ultimately promoted to Senior Litigation Counsel. In those roles, she performed hundreds of investigations and prosecuted over 50 disciplinary cases before the ARDC’s Hearing Board. She also trained ARDC counsel and staff.

          Since 2010, Montgomery has been employed at Robinson, Steward, Montgomery & Doppke LLC, where she has represented attorneys in disciplinary investigations, hearings, and appeals before the ARDC and the Illinois Supreme Court, represented judges before the Illinois Judicial Inquiry Board and bar applicants in character and fitness matters. She has provided ethics advice and opinion letters to law firms, attorneys, government agencies and law-related businesses, and has served as an expert witness in legal malpractice and fee litigation. She has served as an adjunct professor teaching legal ethics and professional responsibility, has served on numerous committees and boards, and has authored numerous publications.

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

          Discussion by the Court

          Falak Shah

          Shah was requested to “analyze the mechanical cause or causes of the
          failure” of the shower stool.

          Defendants argued that Shah’s opinions are irrelevant and unreliable in that he provides only an outline of untested hypotheses in his June 14, 2023 report, such that his analysis is incomplete and cannot be analyzed through any relevant means. They further argued that Shah provides failed to eliminate possible causes related to the failure of the shower stool.

          Shah’s report and opinions are based on his visual inspection of the shower stool in April 2023, and a review of documents provided. The parties had agreed in advance of Shah’s inspection that the stool could be photographed, videoed, examined, and measured. Whether any additional testing would take place was left to be determined.

          Shah opined that a visual examination alone did not provide him with sufficient information to determine the mechanical cause or causes for the stool’s failure to a reasonable degree of engineering certainty. He further opined that there are three categories under which the mechanical cause or causes could fall, but additional analyses beyond merely visual inspection would be required to assess each of those.

          While Shah didoes not identify the mechanical cause for the stool’s failure, the Court finds that his opinions and conclusion that a visual inspection alone could not determine the mechanical cause or causes of the stool’s failure are directly relevant to the issue of whether the applicable standard of care required Defendants to retain an engineering expert to conduct the analyses necessary to make the determination.

          Sari Montgomery

          Defendants sought to exclude Montgomery’s opinions that Defendants violated the standard of care by:

          (1) Failing to issue a litigation hold letter at the beginning of the litigation;

          (2) Failing to conduct jury verdict research;

          (3) Failing to timely advise Ansur and Signature of conflicts of interest over the law barring insurance for punitive damages; and,

          (4) Failing to inform Ansur and Signature that there could be a $10 million punitive damage award in addition to a $1.35 million award in compensatory damages, one month before the trial, when prior liability estimates had exposure not exceeding $325,000.

          Montgomery is not qualified to render opinions in this case regarding the standard of care because she lacks the experience to qualify her as an expert product liability litigation attorney

          Defendants also pointed out that Montgomery has never represented a product manufacturer nor handled a case involving a personal injury or consumer products, has never represented a client who has been alleged to be liable for punitive damages apart from sanctions, and has not handled a case in St. Clair County, Illinois.

          As a licensed attorney who had represented attorneys in disciplinary investigations, hearings and appeals, both for the Illinois Attorney Registration and Disciplinary Commission and in private practice, the Court held that Montgomery has the requisite background and experience to render opinions regarding the standard of care Defendants owed to Plaintiff based on the applicable ethical requirements and rules of professional responsibility.

          Montgomery’s opinions regarding Defendants’ requirement to give coverage advice to Ansur and the insured company in the underlying case violate the Rules of Professional Conduct

          Defendants contended that if they had disclosed a conflict of interest between Ansur and the insured, Signature, Ansur would have been handed a significant coverage defense, thereby greatly harming Signature and violating Rules of Professional Conduct 1.6(b)(7). They also argued that an attorney retained by an insurance company to defend its insured owes a duty to the insured not to disclose facts to the insurer that might prejudice the insured’s rights in a potential coverage dispute with the insurer, as set forth in the Illinois State Bar Association (“ISBA”) Advisory Opinion, dated July 17, 1992.

          In the instant case, Ansur alleged that at no time after the filing of the motion seeking punitive damages in the underlying case, did Defendants advise Ansur or Signature that there was a potential conflict of interest between them because punitive damages would not be covered under Signature’s policy.

          Montgomery’s report sets forth her opinions regarding Defendants’ ethical duties and that a breach occurred when Defendants did not disclose the existence of a resulting conflict of interest between Ansur (the insurer) and Signature (the insured) on the issue of punitive damages. The Court held these opinions to be reliable, and directly relevant to Ansur’s claims and the issues raised in this case.

          Defendants also argued that Montgomery’s opinions regarding a conflict of interest on coverage and punitive damages conflict with an Illinois State Bar Association Advisory Opinion and are therefore impermissible.

           However, the ISBA opinion itself stated “While the Opinions express the ISBA interpretation of the Illinois Rules of Professional Conduct and other relevant materials in response to a specific hypothesized fact situation, they do not have the weight of law.”

          Montgomery’s opinions regarding Defendants’ communications to Ansur about the liability and damages exposure in the underlying case should be barred because she doesn’t have education, training, or experience in evaluating a product liability case

          Defendants asserted that her opinions, claiming Defendants violated Rule 8.4(c) and were dishonest and deceitful, are “off base” because she has never handled a product liability case and would not know whether rapid changes in the case as it approaches trial require different or additional reporting.

          The Court held that Montgomery has the requisite background and experience to render opinions regarding the standard of care Defendants were required to meet based on the applicable ethical requirements and rules of professional responsibility. Specific experience with respect to product liability litigation is not required in this case.

          Finally, Defendants argued that Montgomery’s opinion regarding Defendants’ failure to conduct appropriate jury verdict research should be barred because she lacks experience in product liability defense, cannot opine how a product liability defense lawyer determines exposure, has never done product liability defense jury verdict research, and did not conduct her own jury verdict research before rendering her opinion. On this point, the Court agreed. Montgomery failed to provide a basis for this particular opinion, and her background and experience alone do not suffice.

          Held

          • The Court denied Defendants’ motion to exclude the expert testimony of Falak Shah.
          • The Court granted in part and denied in part Defendants’ motion to exclude the expert testimony of Sari S. Montgomery.

          Key Takeaway:

          Defendants’ argument that Shah’s opinions are unreliable because they do not address each of the Daubert factors fails as well. Here, Shah’s methodology and analysis were appropriate given the issues and under the circumstances presented. He performed a visual inspection as agreed before opining that he could not determine the cause the stool’s failure solely based on that type of inspection, which is an issue presented in this case.

          Montgomery’s opinion regarding Defendants’ failure to conduct appropriate jury verdict research was barred because she lacks experience in product liability defense, cannot opine how a product liability defense lawyer determines exposure, has never done product liability defense jury verdict research, and did not conduct her own jury verdict research before rendering her opinion. However, specific experience with respect to product liability litigation is not required in this case. Montgomery has the requisite background and experience to render opinions regarding the standard of care Defendants were required to meet based on the applicable ethical requirements and rules of professional responsibility.

          Case Details:

          Case Caption: Ansur America Insurance Company V. Borland Et Al
          Docket Number: 3:21cv59
          Court: United States District Court for the Southern District of Illinois
          Order Date: September 30, 2024
        3. Safety Expert Witness’ Testimony on Deficient Inspections Limited

          Safety Expert Witness’ Testimony on Deficient Inspections Limited

          Plaintiff Bailey Aldrich slipped and fell from a single step landing at a United States post office, injuring her foot. Aldrich testified that as a result of her fall, all of her weight landed on her right foot, and she broke three bones in the top of her right foot close to her ankle. She then landed on her bottom and was in immense pain. Aldrich believed that the condition that caused her fall was created by trucks running into the back of the landing.

          Plaintiff’s liability expert, William Marletta, testified that the inspections performed by the United States Postal Service were deficient and that “anybody inspecting this should have been able to pick up that there were problems.” He added that there are issues that are not found or cited in inspections that could still be considered dangerous or defective conditions.

          Defendant challenged Marletta’s opinions on several bases: that they (1) form inadmissible legal conclusions; (2) are not based on reliable principles and methods; and (3) are based on facts not in the record that are speculative and do not assist the trier of fact. 

          Safety Expert Witness

          William Marletta is an internationally recognized safety professional with many professional honors including an “Award of Merit” from The American Society of Testing and Materials (ASTM) for his contributions to the development of standards, and was a world recipient of the American Society of Safety Engineers (ASSE) Safety Professional of The Year.

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

          Discussin by the Court

          Marletta’s Opinions Form Inadmissible Legal Conclusions In Part

          In one of his opinions, Marletta claimed that Defendant was “negligent in failing to properly maintain, repair, and/or replace the defective condition, or provide adequate warnings in accordance with The New York City Building Code, as well as good and accepted safe practice.”

          The Court held that the word “negligent” impermissibly embraced a legal conclusion. However, the Court accepted Plaintiff’s suggested revision of the opinion to: “the owner(s) of the property and its agent (“Defendants”) failed to properly maintain, repair, and/or replace the defective condition, or provide adequate warnings.”

          Marletta concluded that the loading dock “became a means of egress when [Plaintiff] was instructed to enter the accident area.” Marletta opined that there were “dangerous slopes that forward pitched the curb as a ramp.” Whether the loading dock was a means of egress and whether it was a ramp are questions of law to be decided by the Court because these are both legal terms used in the Building Code. Accordingly, the Court excluded these opinions.

          Marletta interpreted various codes and statutes, including iterations of the Building Code and American Disabilities Act. Defendant argued that the applicability and interpretation of various codes and statutes are matters of law for the Court to decide.

          The Court held that Marletta’s opinions provide information on standards and deviations from them. He cites code and statute violations as part of his overall analysis regarding Defendant’s alleged failure to maintain the step. Defendant has not identified any viable basis to exclude these opinions.

          Whether the opinions are applicable to the instant matter, however, depends on if the Court determines that the loading dock is a means of egress and the landing is a ramp, which the Court lacks sufficient information to do at this juncture.

          Marletta’s Opinions Are Based on Sufficient Facts

          Marletta relied on the following materials when forming his expert opinions: (1) photographs of the accident area; (2) inspection and maintenance problem reports; (3) Plaintiff’s deposition testimony; (4) depositions from Post Office employees; (5) various other litigation materials provided to him by Plaintiff’s counsel; and (6) an onsite inspection on November 15, 2022. 

          Lack of Visual Cues

          Marletta concluded that a lack of visual cues was the proximate cause of Plaintiff’s accident. Defendant claimed that Marletta’s opinion should not be persuasive, because, for example, Plaintiff was not looking down at the time of the accident. The Court refrained from excluding this opinion because Defendant had not pointed to any reason why the materials Marletta relied upon were insufficient. 

          When Marletta concluded that the “excessive height of the single-step riser was a proximate cause” of Plaintiff’s injury, the Court held that Defendant’s criticisms go to the weight, not the admissibility, of the proffered testimony.

          Untested Conjecture

          Defendant took issue with Marletta’s statement that the landing was a “smooth, hard surface” and that when a “smooth, hard surface is combined with water or a foreign substance left laying on its surface, conditions are ripe for a slip and fall accident.”  Defendant argued that Marletta’s testimony that “it would not surprise [him]” if there were water or a foreign substance on the landing is “untested conjecture.” Marletta cannot testify as to unsupported beliefs about whether there was water or a foreign surface on the landing. But the Court, at this juncture, will not exclude the opinion that when a smooth, hard surface is combined with water or a foreign substance, conditions are ripe for an accident. 

          Location of the Accident

          When Defendant pressed for exclusion because Marletta was unable to identify with certainty the location of the accident, the Court held that Marletta identified generally where Plaintiff’s accident occurred; it is not entirely uncertain where Plaintiff fell.  The Court, as finder of fact at trial, will determine how much weight to assign to the fact that Marletta determined the average roughness of the landing.

          Similarly, Marletta noted that the “loading dock and curb had worn metal, excessive slopes, garbage and filth, an excessive riser, and more.” Although Defendant argued that there is no evidence that these conditions existed or contributed to the accident, the Court will determine what weight, if any, to assign this opinion at trial.

          Marletta’s statements are not connected to the facts of the case

          Marletta opined that conditions “contrary to our expectation” can contribute to a slip and fall. He concluded that the “normal cone of vision of the pedestrian” makes hazards on walking surfaces difficult to distinguish. Marletta also concluded that surface changes are “difficult to distinguish due to the to view perspective of the pedestrian.” The Court held that  Defendant’s conclusory arguments that Marletta’s statements are not connected to the facts of the case fail to establish that these opinions were not based upon reliable data and methodology or will not assist the Court as the finder of fact.

          The Court also saw no reason to exclude Marletta’s opinion that that “these departures from codes, rules, regulations and good and accepted safe practice were the proximate cause(s) of the accident.”

          Defendant’s Other Arguments to Exclude Marletta’s Expert Testimony Are Unavailing

          Marletta opined that “there was a failure to adequately train employees in safe practices that prohibited pedestrians from entering into dangerous areas.”  Defendant’s only argument was that this testimony did not raise any material issue of fact, which the Court held was not a basis to exclude the testimony.

          Defendant also quibbles with Marletta’s statement that additional warning signs should have been posted in the area of the accident. Defendant argued that the landing was painted in yellow, therefore providing a warning and that Plaintiff was aware of the step. The Court, once again, held that Defendant did not point to any basis to exclude this opinion. 

          Held

          The Court granted in part and denied in part the Defendant’s motion to exclude William Marletta’s testimony.

          Key Takeaways: 

          • Any gaps or inconsistencies in Marletta’s report go to the weight of the evidence, not its admissibility, as Marletta’s report is based on sufficient facts and data.
          • When an expert offers an opinion relevant to applying a legal standard, the expert’s role is limited to describing sound professional standards and identifying departures from them.

          Case Details:

          Case Caption: Aldrich V. The United States Of America Et Al
          Docket Number: 1:22cv5297
          Court: United States District Court, New York Southern
          Order Date: September 26, 2024
        4. Insurance Expert Witness’ Report on Bad Faith Deemed Inadmissible

          Insurance Expert Witness’ Report on Bad Faith Deemed Inadmissible

          A district judge in Texas refused to admit the insurance expert witness’ bad faith report because it failed to explain how exactly the Defendant violated the generally accepted adjusting standards.

          On February 17, 2021, a Texas winter storm damaged a commercial building owned by Barron. Century insured that building under a surplus lines renewal policy. Barron filed a claim with Century for damages to the metal roof of the insured building. Immediately after the storm, Barron began emergency repairs to the metal roof of the building. Barron also repaired damage to the interior of the building and the domestic plumbing.

          On March 5, 2021, a field adjuster inspected the building on Century’s behalf. On June 16, 2021, Century sent a letter to Barron that adopted its field adjuster’s net replacement cost of less than $4,000 and claimed that damage to the metal roof, domestic plumbing lines, and the interior of the building was excluded from coverage. Century identified “freeze damages to the domestic plumbing lines” as the cause of damage to the building’s interior. Further, Century stated that the indentations in the roof resulted from activities excluded from coverage under the policy exclusions. 

          Motions to exclude

          Barron designated Phil Spotts as an expert to testify regarding damages and bad faith. Spotts inspected the damaged building on October 6, 2021. Spotts prepared his final estimate on December 6, 2021, relying on both his inspection and “additional information that was provided by the insured.” His estimate of the replacement cost value of the roof totaled $370,020.81. Spotts also rendered an opinion on whether Century’s claim investigation and adjustment were conducted in bad faith. Additionally, Barron designated Joshua Reeves as an expert to testify regarding causation. Reeves conducted two on-site inspections of the damaged building on November 10, 2022 and November 23, 2022. Reeves opined that the damages to the metal panels that comprised the roof of Barron’s building were damages by environmental forces from the February 2021 winter storm. Century sought to exclude Spotts and Reeves’ expert reports. 

          Insurance Expert Witness

          Philip N. Spotts is the founding member of The Mission Risk Consulting Group, LLC, having opened Mission Adjusting and Risk Management, LLC in 1993.  He has over 40 years’ experience in handling or managing a wide variety of property and casualty claims, including commercial and residential property, national catastrophe, auto liability, general liability, and governmental liability.

          He has several industry designations granted by the Insurance Institute of America, including Chartered Property and Casualty Underwriter, Associate in Risk Management, and Associate in Claims.  

          Fortify your strategy by reviewing a Challenge Study detailing grounds for excluding Philip Spotts’ expert testimony. 

          Engineering Expert Witness

          Joshua G. Reeves is a licensed Professional Engineer employed by Neches Engineers, an engineering firm located in Beaumont, Texas. He is a Licensed Professional Engineer in Texas and a Certified Texas Department of Insurance Windstorm Inspector. He has designed thirteen metal roofs for private commercial and industrial clients.

          Want to know more about the challenges Joshua Reeves’ has faced? Get the full details with our Challenge Study report. 

          Discussion by the Court

          Phil Spotts

          Regarding bad faith, Spotts concluded that the Century claim investigation and adjustment “fell below generally accepted adjusting standards and involved an unreasonable and sub-standard investigation” based on his experience. Spotts also concluded that the Century estimate used as a basis for the claim payment was “underpriced” and “under scoped.”

          Century challenged (1) Spotts’ qualifications as both a damage and bad faith expert and (2) the reliability of his report.

          At the hearing, the parties agreed that expert reports on damages were unnecessary in light of the appointed umpire’s forthcoming appraisal of the damage to Barron’s property, which was binding on both parties pursuant to the appraisal provisions of the policy. Accordingly, Century’s instant Motion to Exclude was denied as moot with respect to Spotts’ expert report on damages. Additionally, to the extent Barron sought to offer Spotts as an expert on causation, Century’s instant Motion to Exclude was granted because Barron had not formally designated Spotts as an expert on causation. The Court considered Spotts’ qualifications, the relevance of his report, and the reliability of his methodology regarding only his bad faith report. 

          Spotts is Qualified to Serve as an Expert

          Spotts stated that he had been licensed “on an All-Lines basis to supervise and adjust claims” involving “tens of thousands of residential and commercial structures due to a diverse number of causes” and that he “possessed over 40,000 hours of claims-related experience.”

          The Court found that Spotts had demonstrated sufficient qualifications to serve as a bad faith expert.

          Spotts’ Expert Report is Relevant to the Issues Presented in this Case

          Century contended in conclusory fashion that Spotts’ damage report was not relevant but failed to specifically explain how the report lacked relevance to the issues presented in this case.

          The Court found that Spotts’ opinions on bad faith were relevant to Barron’s breach of contract, statutory bad faith, and Prompt Payment of Claims Act claims. The parties’ dispute over whether Century properly adjusted Barron’s claim in good faith was central to the resolution of all three claims.

          Spotts’ Expert Report Failed to Demonstrate Reliance on Reliable Methodology

          Century contended that Spotts’ report on bad faith was not reliable because it “was not supported by any evidence” and failed to cite to “any Texas law, statute, policy provision, or any other standard that would apply to this claim.”

          When Spotts claimed that the Century claim investigation and adjustment fell below generally accepted adjusting standards and involved an unreasonable and sub-standard investigation, he identified two sources for the standards on which he relied in his report. First, he cited “long standing claims standards” identified in a book entitled “The Claims Environment” by James J. Markham but the Court found that Spotts’ conclusory statement on Century’s claim investigation and adjustment amounted to him stating “it is so.” In other words, Spotts did not explain how Century’s behavior failed to meet the vague standards of insurance adjusting he cited.

          The second source on which Spotts based his conclusions was the “National Association of Insurance Commissioners Unfair Claims Settlement Practices Act” (“NAIC Act”), attached to his report as an addendum. The Court held that while the NAIC Act provided standards for proper adjustment and investigation of claims, Spotts failed to explain which specific sections of the NAIC Act he relied on in reaching his conclusions. Moreover, Spotts did not reference any specific sections of the NAIC Act at all in his expert report. Spotts’ general reference to the entire NAIC Act without reference to any specific provisions was insufficient to demonstrate a reliable methodology because he did not describe what specific standards were violated.

          Joshua G. Reeves

          In developing his report, Reeves relied on the inspections he conducted as well as various documents such as the International Building Code and International Existing Building Code.

          It should be noted that Century challenged only the reliability of Reeves’ report. The Court held that Reeves was qualified to serve as an expert in this case and that Reeves’ expert report was relevant to Barron’s claims since Barron must show that the February 2021 winter storm caused the alleged damage to the metal roof of the building.

          Reeves’ Expert Report is Based on Reliable Engineering Methodology

          In his report, Reeves identified four potential causes for the damage to the metal roof of Barron’s building: “foundation settlement, faulty construction materials, poor methods of construction, excessive live loads such as wind, show, ice, or seismic.” Reeves determined that the first three causes were not applicable based on the Neches Engineering analysis of (1) the presence of foundation settlement, (2) the structural integrity of the original roof panels, and (3) whether the building’s construction complied with the 1988 Uniform Building Code, which was the governing design criteria when Barron’s building was constructed. After describing his analysis and conclusions on the first three potential causes of the damage, Reeves concluded that the damages “are directly linked to excessive loads: either mechanical or environmental loads.”

          Reeves’ conclusion was based on a flawed process of elimination

          Century contended that Reeves’ conclusion “was based on a flawed process of elimination.” It added that Reeves’ opinions on these potential causes amounted to “it is so” opinions, which made them unreliable. The Court disagreed because Reeves relied on both his own inspection of Barron’s building, relevant building codes, weather data, reports from other adjusters that examined the property, and documents containing information regarding the specific roof panels used. Reeves then analyzed each potential cause and reached a specific conclusion on each one, excluding three and concluding that the fourth was the cause of damage to Barron’s property. 

          The Court disagreed with Century that Reeves’ opinions regarding whether mechanical loads caused the damage to Barron’s property were based on insufficient information because Reeves inspected the damaged roof panels during his two on-site inspections of the damaged property and analyzed whether the damage was consistent with footsteps.

          Century’s arguments attacking the information on which Reeves relied pertained to the weight of the evidence

          The Court held that Century’s arguments attacking the information on which Reeves relied pertained to the weight of the evidence, not its admissibility such as when Century made no attempt to explain why the meteorological data or environmental load calculations Reeves used in his report were incorrect.

          Held

          The Court granted Defendant Century Surety Company’s motion to exclude Plaintiff’s witnesses Spotts and Reeves with respect to Phil Spotts’ expert report on bad faith; denied it as moot with respect to Spotts’ expert report on damages; and denied it with respect to Joshua Reeves’ expert report on causation.

          To the extent Plaintiff Larry Barron sought to offer Spotts as an expert on causation, the Court granted Century’s instant motion to exclude Plaintiff’s Witnesses Spotts and Reeves.

          Key Takeaways:

          • Phil Spotts identified two sources for the standards on which he relies in his report. He cited “long standing claims standards” identified in a book entitled “The Claims Environment” by James J. Markham and the National Association of Insurance Commissioners Unfair Claims Settlement Practices Act. The Court held that there is “too great an analytical gap between the data and the opinion proffered” to render these standards a sufficiently reliable methodology for determining whether Century’s claim investigation and adjustment were conducted in bad faith.
          • Determining whether an expert report is reliable is the product of a three-part analysis: (1) whether “the testimony is based on sufficient facts or data”; (2) whether “the testimony is the product of reliable principles and methods”; and (3) whether “the expert has reliably applied the principles and methods to the facts of the case.” Joshua Reeves’ testimony was the product of engineering analysis based on Reeves’ personal observations and inspections.

          Case Details:

          Case Caption: Barron V. Century Surety Company
          Docket Number: 1:22cv144
          Court: United States District Court, Texas Eastern
          Order Date:  April 23, 2024

        5. 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