Expert Witness Profiler

Tag: Weather

  • Arborist Expert Witnesses’ Opinions on Tree Removal Safety Admitted

    Arborist Expert Witnesses’ Opinions on Tree Removal Safety Admitted

    On December 9, 2021, Plaintiff Darryl Everson was driving in Montz, Louisiana, when he claimed that Defendant David Rugg (“Rugg”) negligently felled a tree along the roadway. The Plaintiff contended that the tree landed on his car, causing injuries to his back and neck. Additionally, Plaintiff alleged that Rugg was employed by Defendant Romesberg Trucking Inc. (“RTI”), which was covered by Nautilus Insurance Company. He asserted that RTI and Rugg failed to exercise reasonable care in their tree-cutting activities near an active roadway. Specifically, Plaintiff claimed that they did not provide warnings, did not monitor approaching vehicles, inadequately trained Rugg, and created a dangerous situation.  

    Defendants filed a Daubert motion to exclude the testimony of Plaintiff’s expert arborist, Frederick Fellner.  

    Meanwhile, the Plaintiff, too, filed a motion seeking to exclude the testimony of Defendants’ expert arborist, James Culpepper.  

    Arborist Expert Witnesses 

    Frederick Fellner 

    Frederick Joseph Fellner, Ph.D.,  worked for Louisiana State University for 25 years as an Arboricultural and Green Infrastructure Manager.  In this role, he was responsible for “all landscape construction” including “protection . . . pre, during and post construction” and oversaw “risk reduction for the protection of people and property from failure of trees.” 

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

    James Culpepper 

    James Culpepper has been a licensed arborist since 1979. Among other experience, he spent 33 years with the Louisiana Forestry Commission, in positions such as the “Chief of Information, Education, and Urban Forestry.” Additionally, he founded an arboricultural consulting company specializing in “hazard tree assessments” and “tree protection planning.” 

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

    Discussion by the Court 

    A. Defendants’ Motion to Exclude Fellner’s Testimony 

    i. Defendant’s Arguments 

    Defendants questioned Fellner’s qualifications, asserting he was “not a safety specialist but an arborist.” During his deposition, Fellner described his expertise as focusing on the evaluation and health of trees. Since his specialty did not encompass tree-cutting safety, Defendants contended he lacked the qualifications to assess Rugg’s safety measures. 

    Defendants also criticized Fellner’s methodology, deeming it unreliable for several reasons. First, they pointed out that he did not identify which tree species struck Plaintiff’s vehicle. This omission was significant, especially since he acknowledged in his deposition that species was crucial when cutting trees. Second, they noted that Fellner failed to adequately assess the weather conditions on the day of the incident. While he examined weather data, he did not attach this data to his report. Defendants argued that he relied on reports from Plaintiff’s attorney without verifying their accuracy. 

    Additionally, Defendants highlighted that Fellner never visited the accident site, despite expressing hope to do so during his deposition. They also noted that he struggled to recall essential case details, such as the road name and accident date, which raised doubts about his analysis. Moreover, they claimed he neglected to research any relevant executive orders or ordinances regarding debris cleanup following Hurricane Ida. Finally, they stated that his testimony lacked reliability, as he identified safety errors without referencing any specific legal provisions that Defendants failed to follow. 

    ii. Plaintiff’s Argument 

    Plaintiff opposed the motion to exclude Fellner’s testimony. He explained: 

    1. Fellner did, in fact, consider weather conditions. 
    1. Fellner could not identify the tree species because Defendants had improperly disposed of it. 
    1. Fellner’s choice not to investigate executive orders regarding tree removal was a valid decision to avoid giving legal opinions.  
    1. Fellner’s assertion that Defendants failed to meet industry safety standards would provide valuable assistance to the jury. 

    iii. Analysis  

    The Court determined that Fellner was qualified to provide expert testimony in this case. Although Defendants argued that his testimony should be excluded because he was “not a safety specialist but an arborist,” the Court found this claim to be inaccurate. According to his resume, Fellner had worked for Louisiana State University for 25 years as an Arboricultural and Green Infrastructure Manager. His extensive experience in landscape construction and risk reduction for the protection of people and property from failure of trees made him suitable to discuss tree removal safety.  

    The Court acknowledged Defendants’ concerns regarding Fellner’s methodology but asserted that these concerns “affect the weight of the evidence rather than its admissibility.” Plaintiff provided reasonable explanations for Fellner’s alleged shortcomings, such as his inability to identify the tree species because the Defendants disposed of it. 

    At trial, Defendants could thoroughly cross-examine Fellner regarding his methodology and the assumptions he made. They had also retained a rebuttal expert to critique his testimony.

    B. Plaintiff’s Motion to Exclude Culpepper’s Testimony 

    i. Plaintiff’s Argument 

    Plaintiff argued that Defendants did not provide sufficient information regarding Culpepper’s qualifications. He noted that Culpepper only identified himself as a “Consulting Arborist” in his report. He claimed that Defendants had failed to demonstrate Culpepper’s qualifications to offer expert testimony. Additionally, Plaintiff stated that Defendants did not comply with Federal Rule of Civil Procedure 26(a)(2)(B). This rule requires parties to disclose expert qualifications, publications from the past ten years, previous cases, and compensation details. 

    Second, Plaintiff contended that Culpepper’s report lacked a clear methodology. He pointed out that the report contained only four paragraphs.  

    In the first paragraph, Culpepper mentioned that the time of the accident was unknown and that Plaintiff left the scene and later returned. Plaintiff argued that this information would not aid the jury, as witnesses would present the facts of the accident, and Culpepper’s comments had no relevance to his expertise.  

    In the second paragraph, Culpepper claimed there was no weather research in Fellner’s report and attached a weather report for December 9, 2021. Plaintiff countered that this claim was inaccurate, as Fellner’s report included the weather history for Kenner, LA. He noted that Fellner had also addressed and refuted Rugg’s assertion about wind causing the tree’s fall.  

    In the third paragraph, Culpepper merely quoted snippets from Fellner’s deposition without providing any analysis or opinions. 

    Lastly, in the fourth paragraph, he criticized Fellner for not visiting the accident site or identifying the tree species. Plaintiff noted that Fellner was retained years after the accident, making it impossible to identify the tree. He also pointed out that Culpepper did not mention visiting the scene himself.  

    Plaintiff argued that the Defense counsel could effectively cross-examine Fellner regarding these points, deeming Culpepper’s testimony unhelpful to the jury.  

    ii. Defendant’s Argument 

    Defendants opposed the motion, arguing that Plaintiff could have gathered more information about Culpepper and his testimony by deposing him, which Plaintiff did not do. They described Culpepper as a “veteran arborist” who had testified in fourteen cases, many involving falling trees. Defendants believed Culpepper’s testimony would help the factfinder by identifying flaws in Fellner’s methodology. 

    Additionally, Defendants provided Culpepper’s resume, a list of his publications, details of his trial experience, and a statement of his compensation. They emphasized that this information supported Culpepper’s qualifications and the relevance of his testimony. 

    iii. Analysis 

    Failure to Disclose 

    In this case, the Court decided not to exclude Culpepper’s testimony based on Defendants’ alleged failure to provide his resume. First, the Court lacked sufficient information to determine if Defendants met the timeliness requirements of Rule 26(a)(2)(D). This rule states that if evidence is intended to contradict another expert’s testimony, disclosures must occur within 30 days after the other party’s disclosure. The Court was unsure when Plaintiff disclosed information regarding Fellner, making it difficult to assess Defendants’ timeliness. 

    Furthermore, the Court noted that Plaintiff opted not to depose Culpepper. Plaintiff received the required information about Culpepper on September 9, 2024, nearly a month before the October 7, 2024 trial date. Thus, Plaintiff had adequate time to review the information and potentially depose Culpepper before trial. The Court concluded that any prejudice to Plaintiff was minimal. Since the Court permitted Plaintiff’s expert to testify, it also favored allowing Defendants’ expert to do so. 

    Daubert Analysis 

    The Court concluded that Culpepper was qualified to testify. He has qualified in several courts to offer expert testimony in cases where falling trees caused injuries or death.  

    Although Culpepper’s report was brief, the Court determined that his testimony was reliable. He possessed extensive experience in the industry, which would help the factfinder assess Fellner’s testimony. Moreover, Culpepper’s report demonstrated that he considered significant documentation when forming his opinions, indicating that his findings were not merely personal opinions. He reviewed incident reports, weather reports, statutes, and deposition testimony to prepare his report. The Court also noted that Plaintiff would have the opportunity to cross-examine Culpepper during the trial. 

    Plaintiff also argued that Culpepper unnecessarily recited facts about the case, such as Plaintiff allegedly leaving the scene of the accident. However, the Court held that if Culpepper began to discuss irrelevant details about the case during trial, the Court would consider objections at that time. 

    Held 

    The Court denied the Defendant’s motion to exclude Plaintiff’s arborist expert witness, Frederick Fellner as well as the Plaintiff’s motion to exclude Defendant’s arborist expert witness, James Culpepper. 

    Key Takeaway: 

    The Court allowed the testimony of both arborist expert witnesses, Frederick Fellner and James Culpepper, recognizing their qualifications and the relevance of their expertise. 

    The Court determined that Fellner’s extensive experience in landscape construction and risk reduction rendered him qualified to discuss tree removal safety, despite criticisms of his methodology.  

    Similarly, Culpepper’s long-standing background in forestry and prior experience as an expert witness provided him with the credibility necessary to assist the jury in evaluating Fellner’s analysis.  

    The Court observed that any concerns regarding the methodology employed by both experts concerned the weight of their evidence instead of their admissibility. 

    Case Details:

    Case Caption: Everson v. Nautilus Ins. Co. 
    Docket Number: 2:23cv1360 
    Court: United States District Court, Louisiana Eastern 
    Order Date: September 16, 2024 
  • Legal Assertions made by Aviation Expert Witness Rejected Despite his Experience as a Pilot

    Legal Assertions made by Aviation Expert Witness Rejected Despite his Experience as a Pilot

    On June 24, 2023, at approximately 3:08 PM, Colter Bay Rangers were notified “of an illegally landed helicopter at the base of Moran Creek in Moran Bay.” According to the probable cause statement, Rangers G’Sell and Cardenas responded and found “a Eurocopter Helicopter (N708SD) . . . [with] two individuals outside the helicopter.” After contacting the Defendant, the Rangers informed him that he had landed within Grand Teton National Park.

    Peter Smith, pilot in command of the white Eurocopter (N708SD) aircraft determined that he landed the flight to avoid further exposure to high-risk weather conditions.

    Defendant was charged with two separate violations of the Code of Federal Regulations under 36 C.F.R. 2.17 for operating an aircraft on lands/waters other than designated areas and failure to comply with Federal Aviation Administration [FAA] regulations (i.e. having physical possession of a pilot certificate or making it readily accessible in the aircraft).

    On October 16, 2023, Defendant filed his notice of intent to offer the expert testimony of Mark Warren, (Designation), “an airline pilot flying for American Airlines”.

    On the other hand, the government sought to preclude any testimony or evidence presented regarding Warren’s statements “related to legal assertions or analysis of domestic law and providing testimony related to the credibility or veracity of any party or to vouch for the credibility of . . . Defendant or any witness.”

    Legal Assertions made by Aviation Expert Witness Rejected Despite his Experience as a Pilot

    Aviation Expert Witness

    Mark Warren is currently an airline pilot flying for American Airlines. During his tenure with American Airlines’ predecessor, Mark Warren served as Flight Operations Regulatory Compliance officer.

    Warren has over 45 years of experience as a general aviation pilot flying the Colorado Rockies and other mountain regions in the United States.

    Start your due diligence on Mark Warren quickly and affordably by first reviewing key insights in our Preliminary Screening Report.  

    Discussion by the Court

    The government pointed to the expert witness Notice provided by Defendant for Warren, the statements within the Notice focused on bolstering Defendant’s version of facts, dictated how the Court should interpret FAA regulations in relation to Defendant’s version of facts, and highlighted the lack of proper disclosure of expert opinions or reports. To sum it up,the government argued that the Court should not permit any testimony offered regarding FAA regulations based on the role the Court holds in judicial proceedings.

    Defendant asserted that Warren had an extensive background in FAA regulations. Defendant argued that there was no basis for limiting Warren’s testimony since he will only be “stating [what FAA regulations] exist and what they are.”

    The Court noted that Warren was not present in the Park when Rangers contacted Defendant, nor was he in the aircraft when Defendant flew his helicopter on June 24, 2023.

    The Court agreed when the government stated that the insufficiency of Defendant’s disclosure was apparent on the face of [the expert witness] Notice—it contained few details of Warren’s opinions to be elicited, no facts [or] data relied upon, and it was devoid of the principles and methods used to reach the undisclosed conclusions.  In other words, the Notice was lacking and failed to provide adherence to Rule 16(b)(1)(C).

    The Court noted that if the conclusory statements in the Notice were indicative of Warren’s testimony, then his testimony would be improper.

    The Court limited Warren’s testimony to the hypothetical scenario, his expertise as a pilot. It did not allow him to testify about the application of the FAA regulations in this case. The Court also did not permit him to testify about facts he had not witnessed.

    Held

    The Court granted in part and denied in part the testimony of Mark Warren.

    Key Takeaways:

    1. Insufficiency of Disclosure: The Court agreed when the government stated that the insufficiency of Defendant’s disclosure was apparent on the face of [the expert witness] Notice—it contained few details of Warren’s opinions to be elicited, no facts [or] data relied upon, and it was devoid of the principles and methods used to reach the undisclosed conclusions.  In other words, the Notice was lacking and failed to provide adherence to Rule 16(b)(1)(C). It was insufficient to have put the government on notice of what the witness would testify to, the opinions he held, and whether such were the product of true expertise and reliable application of principles used in the field.
    2. Legal Assertions: It is not an expert’s role to tell the Court what federal regulations apply, or how they are interpreted, rather that is the role of the Court.

    Case Details:

    Case Caption: USA V. Smith
    Docket Number: L:23po382
    Court: United States District Court for the District of Wyoming
    Order Date: April 03, 2024

  • Wind Speed Opinions of Forensic Engineering Expert Witness Admitted

    Wind Speed Opinions of Forensic Engineering Expert Witness Admitted

    This case involves an insurance claim regarding a damaged roof on the Minden residence. Plaintiffs, Michael and Theresa Minden (“Plaintiffs”), purchased a newly-constructed home in 2003 in Nevada. Allstate’s policy of insurance insured the property.

    In September 2019, a wind event occurred resulting in damage to the roof of Plaintiffs’ home but Plaintiffs waited until November 2019 to report this damage to Allstate.

    Plaintiffs alleged that several roof tiles were cracked, exposing the underlying roof felt and that since the time of loss, water penetrated their roof tiles and further damaged the underlying felt and the inside of the Property. This case focused on the cause and manner of the damage to Plaintiffs’ roof, and Allstate’s homeowners’ insurance policy language, which stipulated that it covered these damages only if caused by a singular “occurrence,” and not through regular wear and tear. Allstate, after a thorough evaluation of Plaintiffs’ claim, made the determination that Plaintiffs’ roof damage was the result of faulty installation and subsequently years of wear and tear, and compensated Plaintiffs for the eight (8) roof tiles deemed damaged by a singular wind event. Plaintiffs disagreed with this assessment, and the present suit followed.

    Plaintiff’s expert, Marcor G. Platt, examined Plaintiff’s roof on August 13, 2021 and August 24, 2021. The Defendant alleged that the roof Platt inspected, however, was not the same roof that was on the house in September 2019 when the claim was made. Plaintiffs had almost entirely replaced their roof in October of 2020, almost an entire year before Platt’s site investigations.

    Defendant Allstate Property and Casualty Insurance Company moved to strike the Plaintiffs’ expert witness, Marcor G. Platt. Allstate also filed a duplicate motion in limine to exclude Platt from testifying at trial.

    Forensic Engineering Expert Witness

    Marcor G. Platt has over twelve years engineering and project management experience in the fields of residential, commercial, and industrial building structural design and retrofit, electrical transmission line structural design, and forensic engineering and expert witnessing.

    His forensic engineering experience includes investigating roof failures, wall failures, foundation damage, corrosion, ancillary structure damage, and other miscellaneous damage resulting from hail, wind, snow, tornado, hurricane, lightning, volcano, tropical storm, vehicle impact, or other natural or man-made forces. His expert witness experience includes testifying at depositions and trials regarding project management, structural failures, structural adequacy, structural damage, property compliance with building codes, and other subjects.

    Efficiently evaluate if investing further resources into vetting Marcor G. Platt is merited based on the findings in our Preliminary Screening Report. 

    Discussion by the Court

    Federal Rule of Evidence 702 governed the admissibility of Platt’s opinions. To be admissible, expert testimony must be both relevant and reliable.

    Expert opinion testimony is relevant if the knowledge underlying it has a valid connection to the pertinent inquiry. It is reliable if the knowledge underlying it has a reliable basis in the knowledge and experience of the relevant discipline

    Opinions Based on Relevant Facts and Data

    Allstate also argued that a roofing company had moved the tiles Platt took for testing from their original locations during the roof replacement in 2020. It added that any displaced tiles Platt observed in 2021 were unrelated to the wind event in 2019 because the roof was replaced in 2020. Allstate argued that Platt’s opinions were based on other experts’ reports and interviews, so his “opinions were nothing more than a comparison of the evidence provided by others.”

    Relying on Others’ Reports

    Platt interviewed the Mindens, the contractor who replaced the roof, and a neighbor who experienced wind damage to her roof. The Court found that Platt reviewed documentation, photographs, and reports prepared by others. Platt also conducted two site visits to the Minden residence, conducted weather research, removed tile samples and sent them to a lab for testing, and performed calculations regarding maximum probable wind speed and how that may have impacted the tiles on the roof.

    Moreover, Allstate had not suggested that experts in Platt’s field would not have relied on interviews, photographs, or other secondhand sources that Platt relied on.

    Allstate’s expert likewise did not view the roof before its replacement and similarly relied on photographs of the old roof and information provided by the Mindens. After all, experts in the field would rely on the same or similar materials as Platt did, and Allstate has not shown otherwise.

    Replacement Roof

    When the roof was replaced, the roofer used the original tiles as if they were not damaged. Platt opined that the tiles he sent for testing were the original roof tiles, not replacements. Consequently, the jury could find that the testing performed on those tiles would be consistent with testing done on the original roof tiles.

    The Court could determine whether the tested tiles were original tiles, whether they were in a different location after the roof replacement, and how the tiles were stored or transported to the testing site through cross-examination.

    Displaced Tiles in 2021

    Platt observed displaced and cracked roof tiles during his site visits in 2021. Platt did not feel that the 2019 event displaced the tiles he observed. Rather, he noted that, like the original tiles, the current roof tiles “were susceptible to displacement under the windspeeds which occur at the property.”

    The Court held that this information was relevant to the question of whether wind gusts at the proper speed could displace roof tiles. Moreover, Allstate had not explained why that conclusion was not reliable.

    Unreliable

    Allstate argued that errors in Platt’s report made his opinions unreliable. Specifically, Platt misstated the date of a rainstorm that caused water intrusion into the Mindens’ home after the September 2019 wind event. Allstate also contended that Platt’s testimony about the weather data regarding wind speeds was unsupported.

    The Mindens argued that Platt had explained the source of his wind speed opinion.

    Date of Rainstorm

    In his initial report, Platt stated that Minden told him that there were “torrential rains” in September 2019 that caused water infiltration to the house. At his deposition, Platt acknowledged that was an error and the rainstorms with water intrusion were in November and December 2019. The Court noted that Allstate did not explain what significance the date of the rainstorm had to Platt’s opinions, which were not about water intrusion from a rainstorm.

    Wind Speed

    In his initial report, Platt stated that he reviewed historical weather data from 2013 to 2021 for Clark County and the City of Henderson. Platt stated that according to the National Oceanic and Atmospheric Administration’s (NOAA) Storm Event Database, “four events with wind gusts between 50 and 62 knots were reported within 4 miles of the property from July 2018 to July 2021” and that “[n]no gusts over 62 knots were recorded within four miles of the property from July 2003 to July 2021.” He also stated that, according to NOAA’s Storm Prediction Center, 62 mile per hour gusts were reported at the Henderson Executive Airport, and on September 1, 2019, “winds with gusts exceeding 75 mph crossed the southeastern Las Vegas valley and Henderson.”

    Although Allstate contended that there was no support for Platt’s statement regarding the 75 mph wind gusts, Platt cited the source for this data point. Allstate’s expert noted the same information as Platt, which was that on September 1, 2019, wind gusts “exceeded 75 mph across the southeast side of the Las Vegas valley including the city of Henderson.”

    Supplemental Report

    Allstate sought to exclude Platt’s supplemental report because it referred to wind events on dates unrelated to the September 2019 storm that allegedly damaged the Mindens’ roof. Allstate contended the supplemental report consisted of dates and wind speeds that were not close to the date of the loss or to the alleged threshold rating of the roof tiles. It also argued that Platt had no support for his opinion of a maximum probable windspeed of 70 mph.

    The Court held that the supplemental report referenced additional weather research Platt obtained from NOAA Local Climatological stations, as well as Platt’s explanation for why Allstate’s expert’s reliance on another source, the Weather Underground website, was unreliable.

    The Court saw no reason to exclude his opinion on this basis, as he was cataloguing additional data and responding to data provided in another expert’s report.

    As for Platt’s opinion on the maximum probable windspeed in the supplemental report, Platt explained the basis for his wind speed opinions in his original report, along with the support for those conclusions, and supplemented that analysis in his second report.

    Held

    The Court denied the motions to exclude the testimony of Marcor G. Platt because the arguments Allstate raised were matters for cross- examination and were not bases to strike Platt’s testimony.

    Key Takeaways:

    1. Relying on Others’ Reports: When Allstate argued that Platt’s opinions were based on other experts’ reports and interviews, the Court held that experts can rely on hearsay in forming their opinions so long as the underlying facts or data are of a type experts reasonably rely upon in the particular field in forming opinions or inferences upon the subject.
    2. Reliability: Platt explained the basis for his opinions in his original report, along with the support for those conclusions, and supplemented that analysis in his second report. The Court held that Platt relied upon relevant facts and data to form his conclusions.
    3. Supplemental Report: Cataloguing additional data and responding to data provided in another expert’s report is no basis to exclude an expert’s testimony.

    Case Details:

    Case Caption: Minden Et Al V. Allstate Property And Casualty Insurance Company
    Docket Number: 2:21cv151
    Court: United States District Court, Nevada
    Order Date: April 04, 2024