United States District Court, W.D. Texas, Waco Division
JEFFREY C. MANSKE, UNITED STATES MAGISTRATE JUDGE
the Court is Defendant's Motion to Limit the Testimony of
Plaintiff's Experts, Lewis O'Leary and Daniel Smith,
pursuant to Federal Rule of Evidence 702. ECF No. 50. The
parties have consented to the jurisdiction of the undersigned
in accordance with the provisions of 28 U.S.C. § 626(c),
Federal Rule of Civil Procedure 73, and the Local Rules of
the United States District Court for the Western District of
Texas. See ECF Nos. 15, 16 and 18. For the reasons
stated below, Defendant's Motion (ECF No. 50) is GRANTED.
suit involves an insurance claim for damages to
Plaintiff's property. Philadelphia Indemnity Insurance
Company (“Defendant”) issued a Builder's Risk
insurance policy covering from May 7, 2013, to May 7, 2014
(the “Policy”) to Spring Street Apartments Waco,
LLC (“Plaintiff”). See Pl.'s Am.
Compl. ¶¶ 7-8, ECF No. 29. The Policy covered
Plaintiff's apartment complex known as The Hype
Apartments (the “Property”). Id. On
April 15, 2014, Plaintiff submitted a claim to Defendant for
roof and water damage sustained on at least 25 buildings on
the Property. Id. ¶ 10. Plaintiff claims the
damage resulted from severe weather, including damage
sustained from winds and strong gusts, which occurred on
March 28, 2014, and from a hailstorm that occurred on April
14, 2014. Id. ¶¶ 9-10.
response to Plaintiffs claim, Defendant engaged Crawford
& Company (“Crawford”), a national claim
adjusting firm, to investigate and adjust Plaintiffs reported
loss. Id. ¶ 11. Based on the adjuster's
inspection of the Property, Crawford retained engineers to
further inspect the Property. See Id. ¶ 12. The
engineers put forth their findings from the inspection in a
report referred to as the “Donan Report.”
Id. Plaintiff asserts that the Donan Report contains
numerous deficiencies. Id. ¶¶
filed this lawsuit against Defendant in the 414th Judicial
District of McLennan County, Texas, on June 30, 2016. ECF No.
1. On August 8, 2016, Defendant removed the case to the
United States District Court for the Western District of
Texas. ECF No. 1. On November 7, 2016, Defendant consented to
the undersigned's jurisdiction. ECF No. 15.
April 26, 2017, Defendant filed a motion pursuant to Rule 702
of the Federal Rules of Evidence seeking to limit the
opinions of Plaintiff s proffered experts, Lewis O'Leary
and Daniel Smith. Def.'s Mot., ECF No. 50. On May 10,
2017, Plaintiff filed a response to Defendant's motion
Pl.'s Resp., ECF No. 52.
requests this Court grant its Motion to Limit Testimony of
Plaintiff s Experts Lewis O'Leary
(“O'Leary”) and Daniel Smith
(“Smith”). Defendant seeks to limit
O'Leary's and Smith's testimony under Rule 702
[t]he joint report from these experts and the estimate from
Mr. O'Leary that followed all rely, in important part, on
the opinions presented in the report of a meteorologist and
retained expert whom Plaintiff has not designated, Stephen
Def.'s Mot. at 1. In addition, Defendant seeks to limit
O'Leary's and Smith's testimonies because Stephen
Harned's (“Harned”) opinions do not satisfy
the evidentiary standards under Rule 702; therefore,
O'Leary's and Smith's opinions that relied on
Harned's opinions also do not satisfy the evidentiary
standards under Rule 702. Id. at 1-2. In response,
Plaintiff argues that Defendant's Motion should be denied
because: (1) it is not in compliance with the Local Rules;
and (2) Plaintiff's experts are entitled to rely on
Harned's weather data. Pl.'s Resp. at 2.
argues that any of O'Leary's and Smith's opinions
that were made by relying on Harned's opinions do not
satisfy the evidentiary standards under Rule 702 because
Harned's opinions do not satisfy the evidentiary
standards under Rule 702. Federal Rule of Evidence 702, which
governs the admissibility of expert witness testimony,
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.
Fed. R. Evid. 702. A district court has considerable
discretion to admit or exclude expert testimony under the
Federal Rules of Evidence. See Gen. Elec. Co. v.
Joiner, 522 U.S. 136, 138- 42 (1997); see also
Seatrax, Inc. v. Sonbeck Int'l, Inc., 200 F.3d 358,
371 (5th Cir. 2000).
Daubert, the Supreme Court held that Rule 702
requires the district court to act as a gatekeeper to ensure
that “any and all scientific testimony or evidence
admitted is not only relevant, but reliable.”
Daubert v. Merrell Dow Pharm., 509 U.S. 579, 589
(1993); see also Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 146-47 (1999) (clarifying that
the Daubert gatekeeping function applies to all
forms of expert testimony). The Court's gatekeeping
function thus involves a two-part inquiry into reliability
and relevance. Daubert, 509 U.S. at 589. Expert
testimony is only admissible “if it is both relevant
and reliable.” Pipitone v. Biomatrix, Inc.,
288 F.3d 239, 244 (5th Cir. 2002) (citing Daubert
509 U.S. at 589). First, the Court must determine whether the
proffered expert testimony is reliable-that is, based on a
scientifically valid methodology. See Daubert, 509
U.S. at 593. The aim is to exclude expert testimony based
merely on subjective belief or unsupported speculation.
See Id. at 590-93.
Daubert, the Court offered a non-exclusive list of
factors to consider, including whether the relied upon theory
or technique: (1) has been or can be tested; (2) has been
subject to peer review and publication; (3) has a known or
potential rate of error; and (4) is generally accepted within
the relevant community. Id. at 592-95.
“[W]hether Daubert's specific factors are,
or are not, reasonable measures of reliability in a
particular case is a matter that the law grants the trial
judge broad latitude to determine.” Kumho Tire
Co., 526 U.S. at 153. The party offering the testimony
bears the burden of establishing its reliability by a
preponderance of the evidence. See Daubert, 509 U.S.
at 592 n.10; Bourjay v. U.S., 483 U.S. 171, 171
(1987). Second, the Court must determine ...