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State Automobile Mutual Insurance Co. v. Freehold Management Inc.

United States District Court, N.D. Texas, Dallas Division

March 31, 2019

STATE AUTOMOBILE MUTUAL INSURANCE COMPANY, Plaintiff,
v.
FREEHOLD MANAGEMENT, INC.; RETAIL PLAZAS, INC.; and RPI DENTON CENTER, LTD., Defendants.

          MEMORANDUM OPINION AND ORDER

          Sam A. Lindsay United States District Judge

         Before the court are the parties' motions to strike or exclude expert testimony: (1) Defendants' Motion to Strike the Expert Testimony of Hallmark Roofing (Doc. 135), filed August 6, 2018; Defendants' Amended Motion to Strike the Expert Testimony of Timothy Marshall (Doc. 183), filed August 29, 2018; Defendants' Amended Motion to Strike Expert Testimony of Paul Nilles (Doc. 190), filed August 30, 2018; and Plaintiff State Automobile Mutual Insurance Company's Amended Motion to Strike and/or Exclude the Expert Testimony of Matt Phelps, Rocco Calaci, Roger Grimm, Gary B. Treider, and Carolyn Coleman (Doc. 196), filed August 30, 2018.

         The court has considered the motions, responses, replies and evidence submitted by the parties (unless indicated otherwise) and rules as follows: Defendants' Motion to Strike the Expert Testimony of Hallmark Roofing (Doc. 135) is granted; Defendants' Amended Motion to Strike the Expert Testimony of Timothy Marshall (Doc. 183) is denied; Defendants' Amended Motion to Strike Expert Testimony of Paul Nilles (Doc. 190) is granted; Plaintiff State Automobile Mutual Insurance Company's Amended Motion to Strike and/or Exclude the Expert Testimony of Matt Phelps, Rocco Calaci, Roger Grimm, Gary B. Treider, and Carolyn Coleman (Doc. 196) is granted with respect to Matt Phelps, Rocco Calaci, and Roger Grimm, and denied with respect to Gary B. Treider and Carolyn Coleman.

         I. Factual and Procedural Background

         Plaintiff State Automobile Mutual Insurance Company (“Plaintiff” or “State Auto”) brought this action, pursuant to 28 U.S.C. § 2201 and 28 U.S.C. §1332, against Defendants Freehold Management, Inc. (“Freehold”) and Retail Plazas, Inc. (“Retail”) seeking a declaratory judgment regarding the parties' rights and obligations under an insurance policy (“Policy”) and whether roof damage alleged to have been sustained during a storm on April 3, 2014, to property located in a shopping center in Denton, Texas (“Property”), was covered by the Policy. RPI Denton Center, Ltd. (“RPI”) was subsequently allowed to join the action as Defendant and Counterclaimant. The court refers collectively to Freehold, Retail, and RPI as “Defendants” or “Freehold.”

         Defendants have countersued for approximately $900, 000. The parties agree that State Auto has paid Defendants $1, 036, 397.17 to date for repairs that have been made to the Property since the April 2014 storm. Defendants, however, allege that they are entitled to recover additional damages to repair a Kroger roof located in the shopping center. Based on information they obtained from Tice Enterprises, Ltd., the general contractor who was hired to make the roof repairs on the Property, Defendants hired engineer Matt Phelps (“Phelps”) of APEC Engineering and Laboratory LLC (“APEC”) to conduct an independent investigation of the roof damage because they believed that the investigation performed by David Teasdale (“Teasdale”) of Haag Engineering (“Haag”) on behalf of State Auto was inadequate and biased. Defendants allege that they provided State Auto with a copy of Phelps's March 31, 2016 report and request for additional damages to repair the Kroger roof, which was denied by State Auto by letter dated April 27, 2016. Defendants allege that they then sent State Auto a demand letter on June 20, 2016, regarding these additional damages.

         This declaratory judgment action by State Auto followed on August 3, 2016. Defendants allege that they sent State Auto a second report by Phelps in 2017 that confirmed the Kroger roof, as well as the other remaining roofs at the Denton shopping center, sustained wind and hail damage as a result of the April 3, 2014 storm and needed to be replaced. Defendants contend that State Auto has failed to make a proper claims decision on their request for additional damages, delayed adjusting this claim in bad faith, and has not fully paid Defendants for roofing repairs to the Property.

         Defendants have asserted counterclaims against State Auto based on theories of breach of contract, violations of Chapters 541 and 542 of the Texas Insurance Code, violations of sections 17.46(5), (7), (12), and (20) of the Texas Deceptive Trade Practices Act (“DTPA”), and breach of the duty of good faith and fair dealing under Texas common law. At the heart of these claims is Defendants' contention that State Auto failed to conduct an adequate and reasonable investigation of their claim for additional damages before denying it, unreasonably delayed in denying their claim for additional damages, used unfair claims settlement practices that involved the hiring of Haag, an allegedly biased engineering firm, and failed to pay their claim for additional damages after it knew or reasonably should have known, the claim for additional damages was covered under the Policy. Plaintiff and Defendants have also both asserted a number of affirmative defenses to each other's claims.

         To say this litigation has been contentious is an understatement. Both parties have accused the other of engaging in abusive discovery or litigation tactics, and the number of discovery disputes and discovery related delays, including discovery disputes involving the parties' experts, have resulted in a number of extensions of discovery, expert, and dispositive motion deadlines. Some of the case deadlines, including the discovery completion deadline, were extended by agreement of the parties without court intervention or official imprimatur of the court and were not included in any of the scheduling orders entered in this case. The parties also specifically moved the court to extend other deadlines, including discovery, expert, and dispositive motion deadlines, a number of times. To the extent granted, these requested extensions were incorporated into the six scheduling orders entered to date in this case.

         The parties' respective challenges to the admissibility of various expert opinions is the most recent of their disputes. Together, the parties filed approximately 3, 000 pages of materials in support of or in opposition to the other parties' expert challenges. Despite having the parties refile a number of their expert and summary judgment materials for failure to comply with this district's Local Civil Rules, none of the parties' materials that were filed in support of their respective expert challenges fully complies with this district's Local Civil Rules applicable to briefing and appendices. As the parties rely in large part on their respective experts in supporting or defending against the summary judgment motions filed, the court must resolve the expert challenges before ruling on the motions.

         II. Applicable Legal Standards

         The parties have moved to strike or exclude the opposing party's expert opinions under Federal Rules of Civil Procedure 702, 26(a), and 37(c).

         A. Admissibility of Expert Testimony Under Rule 702

         In a diversity case, the admissibility of evidence is a procedural issue governed by federal law. See Reed v. General Motors Corp., 773 F.2d 660, 663 (5th Cir. 1985). Federal Rule of Evidence 702 governs the admissibility of expert testimony and provides that:

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.

Id.

         The trial court acts as a “gatekeeper” to ensure that “any and all scientific evidence admitted is not only relevant, but reliable.” Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589 (1993). “Daubert's general holding-setting forth the trial judge's general ‘gatekeeping' obligation-applies not only to testimony based on ‘scientific' knowledge, but also to testimony based on ‘technical' and ‘other specialized' knowledge” that is non-scientific in nature. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999).[1] In its gatekeeping role, the court determines the admissibility of expert testimony based on Rule 702 and Daubert and its progeny.[2]

         “The court may admit proffered expert testimony only if the proponent . . . demonstrates that (1) the expert is qualified, (2) the evidence is relevant to the suit, and (3) the evidence is reliable.” E.E.O.C. v. S & B Indus., Inc., No. 3:15-CV-641-D, 2017 WL 345641, at *2 (N.D. Tex. Jan, 24, 2017) (citing Kumho Tire Co., 526 U.S. at 147) (internal quotation marks omitted). The burden is on the proponent of the expert testimony to establish its admissibility by a preponderance of the evidence. See Daubert, 509 U.S. at 592 n.10; Johnson v. Arkema, Inc., 685 F.3d 452, 459 (5th Cir. 2012). The court's inquiry is flexible in that “[t]he relevance and reliability of expert testimony turn[] upon its nature and the purpose for which its proponent offers it.” United States v. Valencia, 600 F.3d 389, 424 (5th Cir. 2010) (citation omitted). To be relevant, “expert testimony [must] ‘assist the trier of fact to understand the evidence or to determine a fact in issue.'” Pipitone v. Biomatrix, Inc., 288 F.3d 239, 245 (5th Cir. 2002) (quoting Daubert, 509 U.S. at 591). “Relevance depends upon ‘whether [the expert's] reasoning or methodology properly can be applied to the facts in issue.'” Knight v. Kirby Inland Marine Inc., 482 F.3d 347, 352 (5th Cir. 2007) (quoting Daubert, 509 U.S. at 593); see also Fed. R. Evid. 702(d) (requiring that an “expert has reliably applied the principles and methods to the facts of the case”).

         “Reliability is determined by assessing ‘whether the reasoning or methodology underlying the testimony is scientifically valid.'” Knight, 482 F.3d at 352 (quoting Daubert, 509 U.S. at 592-93); see also Fed. R. Evid. 702(c) (requiring that “testimony [be] the product of reliable principles and methods”). “The reliability analysis applies to all aspects of an expert's testimony: the methodology, the facts underlying the expert's opinion, the link between the facts and the conclusion, et alia.” Knight, 482 F.3d at 355 (citation and internal quotation marks omitted). “The reliability prong mandates that expert opinion be grounded in the methods and procedures of science and . . . be more than unsupported speculation or subjective belief, ” Johnson, 685 F.3d at 459 (internal quotation marks omitted); however, “there is no requirement that an expert derive his opinion from firsthand knowledge or observation.” Deshotel v. Wal-Mart La., L.L.C., 850 F.3d 742, 746 (5th Cir. 2017) (internal quotation marks omitted).

         “The focus, of course, must be solely on principles and methodology, not on the conclusions that they generate.” Daubert, 509 U.S. at 595; Williams v. Manitowoc Cranes, L.L.C., 898 F.3d 607, 623 (5th Cir. 2018) (quoting Guy v. Crown Equip. Corp., 394 F.3d 320, 325 (5th Cir. 2004)). “The proponent need not prove to the judge that the expert's testimony is correct, but [it] must prove by a preponderance of the evidence that the testimony is reliable.” Johnson, 685 F.3d at 459 (internal quotation marks omitted). On the other hand, if “there is simply too great an analytical gap between the [basis for the expert opinion] and the opinion proffered, ” the court may exclude the testimony as unreliable, as “nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert.” General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997).

         “[C]ourts consider the following non-exclusive list of factors when conducting the reliability inquiry: (1) whether the theory or technique has been tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error of the method used and the existence and maintenance of standards controlling the technique's operation; and (4) whether the theory or method has been generally accepted by the scientific community.” Johnson, 685 F.3d at 459 (internal quotation marks omitted). These factors, however, are not definitive or exhaustive. Rather, the reliability inquiry is flexible, and the district court conducting the Daubert analysis has discretion in determining which factors are most germane in light of the nature of the issue, the particular expertise, and the subject of the expert's testimony. Daubert, 509 U.S. at 593-95; Kumho Tire Co., 526 U.S. at 142.

         The Advisory Committee's Notes to Rule 702 contemplate that expert testimony may be based on experience, training, or both:

Nothing in this amendment is intended to suggest that experience alone-or experience in conjunction with other knowledge, skill, training or education-may not provide a sufficient foundation for expert testimony. To the contrary, the text of Rule 702 expressly contemplates that an expert may be qualified on the basis of experience. In certain fields, experience is the predominant, if not sole, basis for a great deal of reliable expert testimony. See, e.g., United States v. Jones, 107 F.3d 1147 (6th Cir. 1997) (no abuse of discretion in admitting the testimony of a handwriting examiner who had years of practical experience and extensive training, and who explained his methodology in detail); Tassin v. Sears Roebuck, 946 F.Supp. 1241, 1248 (M.D. La. 1996) (design engineer's testimony can be admissible when the expert's opinions “are based on facts, a reasonable investigation, and traditional technical/mechanical expertise, and he provides a reasonable link between the information and procedures he uses and the conclusions he reaches”). See also Kumho Tire Co. v. Carmichael, 119 S.Ct. 1167, 1178 (1999) (stating that “no one denies that an expert might draw a conclusion from a set of observations based on extensive and specialized experience.”).

Fed. R. Evid. 702 advisory committee's notes (2000 amendments).

         The Advisory Committee's Notes to Rule 702 further explain: “If the witness is relying solely or primarily on experience, then [he or she] must explain how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts.” Id. This is because the “trial court's gatekeeping function requires more than simply taking the expert's word for it” that the claimed basis supports the opinion. Id. (citation and internal quotation marks omitted); Pipitone, 288 F.3d at 245-47 (finding expert testimony reliable when the expert explained how his experience in the field led him to opine that an absence of contamination of some samples did not undermine his conclusion that the plaintiff's infection came from the same drug). Overall, the trial court must strive to ensure that the expert, “whether basing testimony on professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Kumho Tire Co., 526 U.S. at 152. The relevance and reliability of expert testimony turn upon its nature and the purpose for which its proponent offers the testimony. See, e.g., Hodges v. Mack Trucks, Inc., 474 F.3d 188, 195 (5th Cir. 2006) (“Of course, whether a proposed expert should be permitted to testify is case, and fact, specific.”) (citing Kumho Tire, 526 U.S. at 150-51).

         The district court's gatekeeping role, however, is not meant “to serve as a replacement for the adversary system: Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.” Primrose Operating Co. v. National Am. Ins. Co., 382 F.3d 546, 562 (5th Cir. 2004) (quoting United States v. 14.38 Acres of Land, More or Less Situated in Leflore Cty., Miss., 80 F.3d 1074, 1078 (5th Cir. 1996)); accord Williams, 898 F.3d at 624 (quoting Daubert, 509 U.S. at 596). Thus, the district court's “Daubert analysis should not supplant trial on the merits, ” Mathis v. Exxon Corp., 302 F.3d 448, 461 (5th Cir. 2002) (citation omitted), and, generally speaking, issues regarding the bases and sources of an expert's opinion that affect the weight of an opinion rather than the admissibility of the opinion “should be left for the [trier of fact's] consideration.” Viterbo v. Dow Chem. Co., 826 F.2d 420, 422 (5th Cir. 1987). The reasoning behind this general rule is consistent with the Advisory Committee's Notes to Rule 702, which state:

When facts are in dispute, experts sometimes reach different conclusions based on competing versions of the facts. The emphasis in the amendment on “sufficient facts or data” is not intended to authorize a trial court to exclude an expert's testimony on the ground that the court believes one version of the facts and not the other.

Fed. R. Evid. 702 advisory committee's notes (2000 amendments).

         B. Exclusion of Expert Testimony for Failure to Disclose Under Rule 26(a)

         Federal Rule of Civil Procedure 26(a)(2)(B) provides: “Unless otherwise stipulated or ordered by the court, . . . [the disclosure of expert testimony] must contain: (i) a complete statement of all opinions the witness will express and the basis and reasons for them.” If a witness is not required to provide a written expert report, Rule 26(a)(2)(C) provides that a party's disclosure must state: “the subject matter on which the witness is expected to present evidence under Federal Rule of Civil Evidence 702, 703, or 705, ” and include “a summary of the facts and opinions to which the witness is expected to testify.” Any opinions that are not properly disclosed in accordance with the Rule 26(a) may be excluded “unless the failure was substantially justified or is harmless.” Fed.R.Civ.P. 37(c)(1). Exclusion, however, is not mandatory or automatic but, instead, a matter of the court's discretion. Geiserman v. MacDonald, 893 F.2d 787, 791 (5th Cir. 1990). In deciding whether to exercise its discretion and exclude an expert witness for failure to comply with Rule 26(a)(2), the court is guided by four factors: “(1) the importance of the evidence; (2) the prejudice to the opposing party of including the evidence; (3) the possibility of curing such prejudice by granting a continuance; and (4) the explanation for the party's failure to disclose.” Texas A&M Research Found. v. Magna Transp., Inc., 338 F.3d 394, 402 (5th Cir. 2003) (citation omitted).

         III. Analysis

         A. Defendants' Motion to Strike Expert Testimony of Hallmark Roofing (Doc. 135)

         Defendants move to strike the expert testimony of Hallmark Roofing (“Hallmark”) under Rule 702 on the grounds that it is not relevant. Specifically, Defendants contend that Hallmark's opinion is not relevant because it “only has opinions as to the replacement cost value of the scope of work provided by State Auto that is not in dispute.” Defs.' Mot. 7. In a footnote, Defendants also contend that Plaintiff's designation for Hallmark is deficient under Federal Rule of Civil Procedure 26(a)(2), as it did not provide a report, or a ‘summary of the facts and opinions to which the witness is expected to testify.” Id. at 7 n.1.

         For the first time in its reply, Defendants further assert that the designation for Hallmark is deficient for failing to “provide qualifications for or designate the witness on causation or identification of storm related damages.” Defs.' Reply 2, 4-5. “Arguments raised for the first time in a reply brief are generally waived, ” as the responding party is deprived of the opportunity to respond to the new argument. Jones v. Cain, 600 F.3d 527, 541 (5th Cir. 2010). Defendants fail to explain why they could not have asserted this Rule 26(a) argument in their motion by the deadline set in the court's scheduling order for challenging experts. Accordingly, this argument is waived, and the court does not address it.

         Defendants also assert, for the first time in their reply that, even if properly designated, Hallmark is not qualified under Rule 702 to give expert testimony. This issue was not raised in a timely fashion and, as a result, the court does not have the benefit of a response from Plaintiff in addressing; however, the trial court must always make certain that the expert opinion's is reliable under Rule 702 at “at each and every step.” Knight, 482 F.3d at 355 (citation and internal quotation marks omitted). The court, nevertheless, need not address this issue, as it determines that Defendants' motion to exclude Hallmark's testimony under Rule 26(a) should be granted for failure to provide a summary of the facts and opinions to which this witness was expected to testify.

         Regarding this issue, Plaintiff responds that Hallmark is a hybrid witness, that is, a nonretained expert witness who is also a fact witness and, as such, was not required under Rule 26(a)(2)(B) to provide an expert report. Plaintiff asserts that Hallmark was designated as an expert witness out of an abundance of caution because, although it was anticipated to be a fact witness, its testimony may be expert in nature. Plaintiff contends that the opinions for these type of witnesses may be discovered through deposition and need not be fully disclosed in advance. Pl.'s Resp. 6 (citing Kim v. Time Ins, Co., 267 F.R.D. 499, 501 (S.D. Tex. 2008)). Plaintiff further contends that “[t]he law is clear that this type of testimony does not require a report pursuant to Rule 26(a)(2)(C).” Pl.'s Resp. 7.

         Defendants reassert that Plaintiff's disclosures under Rule 26 are deficient because it was required to either include an expert report “or a summary of the facts and opinions to which the witness is expected to testify” but did neither. Defendants, therefore, contend that their motion to strike must be granted.

         It is undisputed that no report was prepared by Hallmark. Even assuming Rule 26(a)(2)(C) applies and relieved Hallmark from preparing an expert report, Plaintiff was still required under this rule to disclose the subject matter of the testimony Hallmark was expected to provide under Rules 702, 703, 704705 and “a summary of the facts and opinions” to which a Hallmark was expected to testify. The case relied on by Plaintiff does state that opinions for nonretained expert witnesses “may be discovered through deposition, and need not be fully disclosed in advance of depositions.” Kim, 267 F.R.D. at 501 (citation omitted). Kim, however, predates the 2010 amendments to Rule 26(a)(2), and this and other related conclusions in Kim regarding the scope of expert disclosures required under Rule 26 are based entirely on cases outside of the Fifth Circuit, and dealt with disclosing the identity of an expert under Rule 26(a)(2)(A) and the issue of whether disclosures for a nonretained expert under Rule 26(a)(2)(B) must be accompanied by a written report. Kim did not address the scope of the disclosures required for a nonretained expert that must now be made under Rule 26(a)(2)(C) as a result of the 2010 amendments to this rule. The 2010 Advisory Committee Notes to Rule 26(a) explain that “Rule 26(a)(2)(C) is added to mandate summary disclosures of the opinions to be offered by expert witnesses who are not required to provide reports under Rule 26(a)(2)(B) and of the facts supporting those opinions.” Fed.R.Evid. 26 advisory committee's notes (2010 amendments). The Committee Notes further explain that “[t]his disclosure is considerably less extensive than the report required by Rule 26(a)(2)(B). Courts must take care against requiring undue detail, keeping in mind that these witnesses have not been specially retained and may not be as responsive to counsel as those who have. . . . [, and] [t]he (a)(2)(C) disclosure obligation does not include facts unrelated to the expert opinions the witness will present.” Id. This less extensive disclosure standard, however, does not obviate the need to provide the disclosures expressly required by this rule.

         In its January 15, 2018 First Supplemental Rule 26(a)(2) Expert Disclosures (Doc. 37), Plaintiff identified Hallmark timely and indicated that it anticipated that Kenny Hall (“Hall”) of Hallmark was expected to testify. This disclosure also provided a brief summary of the general subject matter of Hallmark's or Hall's anticipated testimony but does not include any information regarding Hallmark's or Hall's opinions or the facts supporting those opinions. Instead, this disclosure merely discloses as follows the general nature of Hallmark's anticipated testimony:

Hallmark . . . [is] expected to testify, among other things, regarding the actual cost and method of repairs for the roofing material present on [Freeholds'] roof on the property that is the subject of this lawsuit. Hallmark [] inspected the property and provided estimates for the cost of roof repairs for the property at issue in this case among other things. Hallmark [] will likely testify regarding the cost of roof repairs at the aforementioned properties, and the market rate for the repairs included in the estimates.

Id. at 8. Plaintiff filed a supplemental disclosure for Hallmark on June 1, 2018 (Doc. 74), which contains the same information. The only difference is the addition of the statement: “See also the deposition testimony taken of Kenny Hall.” Id. at 9. Both disclosures also indicate that “[a]ll documents related to Hallmark's [] involvement in this claim have been previously produced.” Id.; First Supp. R. 26(a)(2) Expert Disclosures 9. According to the deposition testimony attached to Defendants' motion to strike, Hall was deposed on May 24, 2018, long after the deadline for rebuttal expert designations. The court, therefore, fails to see how Plaintiff's supplemental disclosure for Hall that merely references his deposition after-the-fact satisfies its disclosure obligations under Rule 26(a)(2)(C). Regardless, a party's production of documents and an opponent's after-the-fact deposition are not substitutes for the disclosures required to be made under Rule 26(a)(2)(C) before-the-fact as far as an expert witness is concerned, and such shenanigans defeat the rule's purpose for requiring a party to disclose the facts and opinions that a nonretained expert is expected to testify. Securities and Exchange Commission v. Nutmeg Group, LLC, No. 09 C 1775, 2017 WL 4925503, at *5 (N.D. Ill., Oct. 31, 2017).

         As the disclosures for Hallmark were never made as required under Rule 26(a)(2)(C), the lack of any explanation by Plaintiff for not making the required disclosures, as well as the age of this case because of delays attributable to discovery and experts, the court concludes, for similar reasons explained herein with respect to Defendants' expert witness Roger Grimm, that a exclusion under Rule 26 of Hallmark's testimony, and Hall's testimony on behalf of Hallmark, is appropriate, even though Defendants do not contend or point to any particular prejudice they might suffer if the testimony is not excluded. At some point, the litigation in this case has to end, and further delays attributable to the parties' failure to comply with the court's scheduling order and make required expert disclosures unnecessarily delay the resolution of their claims and defenses. The court, therefore, grants Defendants' motion to strike Hallmark's testimony on this ground and excludes Hallmark's and Hall's testimony and will not permit Hallmark or Hall to testify in this case for any purpose.[3]

         B. Defendants' Motion to Strike Expert Testimony of Timothy Marshall (Doc. 183)

         Defendants move to strike the expert testimony of Timothy Marshall (“Marshall”) on the ground that it is inadmissible under Rule 702 because it is unreliable. In a footnote, Defendants also contend that Marshall's testimony should be excluded because it is cumulative of testimony that Plaintiff's expert Teasdale will provide and, thus, unnecessary. Defendants contend that Marshall's testimony is unreliable because he relied on unreliable sources of information in opining regarding the meteorological conditions of the Property and the damage to the Property. In this regard, Defendants contend that Marshall never visited the Property site; did not get on the roofs; did not talk to any eyewitnesses; did not review the results of testing done by Haag; and did not inspect the damage to the Property or the samples taken by his own company. Defendants contend that Marshall, instead, simply reviewed Teasdale's report, including photos in the report, and “pulled some weather data.” Defendants assert that Marshall's testimony is also unreliable because his methodology is unreliable, as he performed no methodology other than to look at Teasdale's photos and opine about the weather that would have caused the conditions in the photos. Defendants contend that Marshall did not even consider the weather data he obtained and reviewed in reaching his opinions about the size of the hail or wind speed on April 3, 2014.

         Plaintiff disagrees and contends that the sources relied on by Marshall are reliable. Plaintiff asserts that Defendants mischaracterize Marshall's testimony and argue that his opinions are unreliable because he relied on data provided by Teasdale, but they have not moved to strike or shown that Teasdale's data or analysis is unreliable. Plaintiff further assert that there is no evidence that the data collected by Teasdale is unreliable. Plaintiff notes: “Ironically, Defendants have also attempted to argue that Marshall's sources are unreliable because he did not visit the Property, inspect the roof, or interview witnesses, when in fact, Defendants' own meteorologist, Rocco Calaci, conducted his investigation in precisely the exact same manner.” Pl.'s Resp. 6.

         Plaintiff contends that Marshall's methodology is reliable because:

his methods have been peer reviewed and published, the theories he relied on are generally accepted, he has ruled out other alternative explanations, and he clearly connected the proposed testimony with the facts of the case in his deposition and reports. For instance, throughout his deposition, Marshall testified that he utilized peer-reviewed methods throughout his investigation. App. Ex. D, p. 143, 148, 156 at 28:5-25; 54:18-22, 55:12-17, 120:23-121:5. Marshall also cited to articles that validated his assessment of the condition of the property during his investigation. App. Ex. D, p. 148 at 54:4-14. Finally, Marshall cited to numerous studies and theories that are generally accepted that verify his conclusions, and dispute the conclusions that Defendants' experts reached, thereby ruling out alternative explanations. App. Ex. D, p. 146, 148, 157 at 48:6-49:15, 55:12-17, 127:6-13.

Id. at 7-8.

         In addition, Plaintiff maintains that Marshall's testimony is relevant because:

he is Plaintiff's sole meteorologist who can testify to how the conditions of April 3, 2014[, ] did or did not impact the Property. In other words, without Marshall's testimony, Plaintiff has no expert who can testify as to what weather conditions were present on April 3, 2014, and how the weather impacted the Property. Further, Marshall's testimony is vital to assist lay persons understand why State Auto did ...

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