Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Spring Street Apts Waco, LLC v. Philadelphia Indemnity Insurance Co.

United States District Court, W.D. Texas, Waco Division

June 28, 2017

SPRING STREET APTS WACO, LLC, Plaintiff,
v.
PHILADELPHIA INDEMNITY INSURANCE COMPANY, Defendant.

          ORDER

          JEFFREY C. MANSKE, UNITED STATES MAGISTRATE JUDGE

         Before 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.

         I. BACKGROUND

         This 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.

         In 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. ¶¶ 13-17.[1]

         Plaintiff 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.

         On 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.

         II. DISCUSSION

         Defendant 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 because:

[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 Harned.

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.

         Defendant 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.[2] Federal Rule of Evidence 702, which governs the admissibility of expert witness testimony, provides:

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).

         In 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.

         In 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.