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In re Ebin

Court of Appeals of Texas, Fourth District, San Antonio

November 13, 2019

IN RE John EBIN and Joyce O'Connor

          Original Mandamus Proceeding [1]

          Sitting: Sandee Bryan Marion, Chief Justice Rebeca C. Martinez, Justice Patricia O. Alvarez, Justice


          Sandee Bryan Marion, Chief Justice.

         Relators, John Ebin and Joyce O'Connor, assert the trial court abused its discretion by striking their causation expert and their insurance-claims-handling expert. Because we conclude the trial court erred by striking relators' causation expert, we grant the petition for writ of mandamus in part. We deny all other relief.


         Following a June 2016 hail storm, relators' insurance carrier, USAA Casualty Insurance Co. ("USAA"), sent an independent adjustor, Allcat Claims, to inspect relators' home. Allcat's inspector, Clint Singleton, estimated damage to the home in the form of twelve hail damaged roof tiles and other interior and exterior damages. Singleton's repair estimate totaled slightly more than $10, 000. Relators then retained a public adjuster, Insurance Claim Advantage ("ICA"), which inspected the home in November 2016. ICA submitted an estimate of $121, 253.99. ICA later revised its estimate to $128, 248.98. USAA denied the amount presented by ICA's adjuster, Lindsey Douglas. Relators later sued USAA, alleging USAA failed to properly pay for the replacement of relators' roof and other items allegedly damaged in the hail storm. Relators retained two experts who are the subject of this original proceeding: (1) Derek Steiner on causation and (2) Adam Brenner on claims handling. In 2018, two years after the hailstorm, Steiner inspected relators' home. He submitted an initial estimate that mirrored ICA's with an amount of $121.253.99. Steiner later revised his estimate to $128, 248.98.

         USAA filed motions to strike the testimony and reports of both experts. On August 1, 2019, the trial court conducted a hearing on the motions. The next day, the trial court signed two orders striking both experts. Relators filed their petition for writ of mandamus and USAA filed a response.


         Mandamus is an extraordinary remedy. In re Sw. Bell Tel. Co., L.P., 235 S.W.3d 619, 623 (Tex. 2007) (orig. proceeding). Mandamus will issue only to correct a clear abuse of discretion when there is no other adequate remedy at law. Id. To satisfy the clear abuse of discretion standard, the relator must show "the trial court could reasonably have reached only one decision." Liberty Nat'l Fire Ins. Co. v. Akin, 927 S.W.2d 627, 630 (Tex. 1996) (orig. proceeding) (quoting Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding)). The relator has the burden of establishing both prerequisites to mandamus relief, and this burden is a heavy one. In re CSX Corp., 124 S.W.3d 149, 151 (Tex. 2003) (orig. proceeding) (per curiam).


         Relators designated Derek Steiner as their expert on causation and damages. In its motion to strike Steiner, USAA raised two challenges to Steiner. First, USAA alleged Steiner's report, cost estimate, and testimony failed to use any scientific method to investigate damages and were not based on a reliable foundation. Second, Steiner's report, estimate, and testimony are not relevant as to the reasonableness of USAA's investigation and coverage decision.[2]

         A. Admissibility of Expert Testimony

         An expert's opinion is admissible under Texas Rule of Evidence 702 if the expert is qualified, the expert's opinion is relevant to the issues in the case, and the expert's opinion is based upon a reliable foundation. See Tex. R. Evid. 702. Rule 702's reliability requirement focuses on principles, research, and methodology underlying an expert's conclusions. See E.I. du Pont de Nemours & Co., Inc. v. Robinson, 923 S.W.2d 549, 557 (Tex. 1995). Under this requirement, expert testimony is reliable if it is grounded "in the methods and procedures of science" and is more than merely a "subjective belief or unsupported speculation." Id. (quoting Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 590 (1993)). In addition to the "methods and procedures of science" factors considered under Robinson, when the subject matter of an expert's opinion requires an expert to rely on experience, knowledge, and training rather than a certain methodology to reach a conclusion, a court makes the reliability assessment by determining whether there is "too great an analytical gap between the data and the opinion proffered." Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 578 (Tex. 2006) (citing Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 726 (Tex. 1998)). Regardless, "there must be some basis for the opinion offered to show its reliability." Gammill, 972 S.W.2d at 726. "An expert's bare opinion will not suffice and is unreliable if based solely upon his subjective interpretation of the facts." Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 906 (Tex. 2004).

         B. Reliability of Steiner's ...

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