United States District Court, E.D. Texas, Sherman Division
MEMORANDUM OPINION AND ORDER
KIMBERLY C. PRIEST JOHNSON UNITED STATES MAGISTRATE JUDGE.
the Court are MUSIC's Motion to Strike Testimony of
Brandy's Expert Roy Young (the “Motion to Strike
Young”) (Dkt. 30), to which Plaintiff filed a response
(Dkt. 31), and Defendant filed a reply (Dkt. 32); and
Plaintiff's Motion to Strike Expert Testimony of Glenn
Malicki (the “Motion to Strike Malicki”) (Dkt.
33), to which Defendant filed a response (Dkt. 34).
forth below, the Court finds the Motion to Strike Young (Dkt.
30) and the Motion to Strike Malicki (Dkt. 33) are
action arises from alleged water damage resulting from a
broken pipe at a property located a 4625 Post Oak Drive,
Frisco, Texas 75034 (the “Property”).
See Dkt. 12 at 3. Brandy Ventures, LLC
(“Plaintiff”) purchased a commercial insurance
policy from Mesa Underwriters Specialty Insurance Company
(“Defendant”) for forty-eight (48) properties
Plaintiff owns and rents to tenants in Collin County,
including the Property. See Dkt. 12 at 2. Plaintiff
alleges Defendant unfairly or deceptively denied coverage of
property insurance benefits following water damage to the
Property. See id.
designated Roy Young (“Young”) of YPA Public
Adjusters, LLC, to testify regarding water damage to the
Property. See Dkt. 30 at 1-2; Dkt. 30-1 at 3, 111.
Defendant moves to strike the testimony of Young.
See Dkt. 30.
designated Glenn Malicki (“Malicki”) to testify
regarding the pipes that burst at the Property, as well as
Malicki's inspection and repair of the pipes.
See Dkt. 33 at 1-2; Dkt. 33-1 at 4. Plaintiff moves
to strike the testimony of Malicki. See Dkt. 33.
702 of the Federal Rules of Evidence governs the
admissibility of expert testimony. While the district court
must act as a gatekeeper to exclude all unreliable expert
testimony, “the rejection of expert testimony is the
exception rather than the rule.” Fed.R.Evid. 702
advisory committee's notes (2000) (citing Daubert v.
Merrell Dow Pharm., Inc., 509 U.S. 579 (1993); Kumho
Tire Co. v. Carmichael, 526 U.S. 137, (1999)).
testimony is admissible only if the proponent demonstrates
that: (1) the expert is qualified; (2) the evidence is
relevant to the case; and (3) the evidence is reliable.
Watkins v. Telsmith, Inc., 121 F.3d 984, 988-89 (5th
Cir. 1997). To be reliable and therefore admissible under
Rule 702 of the Federal Rules of Evidence, expert testimony
as to a scientific, technical, or other specialized area
must: (1) assist the trier of fact to understand the evidence
or to determine a fact in issue; (2) be based upon sufficient
facts or data; (3) be the product of reliable principles and
methods; and (4) have reliably applied the principles and
methods to the facts. Fed.R.Evid. 702. In evaluating the
scientific validity or reliability of expert testimony, the
Court in Daubert noted some non-exclusive factors
for the district court to consider: (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;
(4) the existence and maintenance of standards and controls
in the methodology; and (5) whether the theory or method has
been generally accepted by the scientific community.
Daubert, 509 U.S. at 593-94. "But, as the Court
stated in Daubert, the test of reliability is
‘flexible,' and the Daubert factors
neither necessarily nor exclusively apply to all experts or
in every case. Rather, the law grants a district court the
same broad latitude when it decides how to determine
reliability as it enjoys in respect to its ultimate
reliability determination.” Kumho
Tire, 526 U.S. at 151.
determining the admissibility of expert testimony, the trial
court is not to consider the conclusions generated by an
expert witness, but only the principles and methodology used
to reach those conclusions. See Daubert, 509 U.S. at
595. “When the principles and methodology are
sufficient to allow the expert opinion to be presented to the
jury, the party challenging the testimony must resort to
‘vigorous cross-examination, presentation of contrary
evidence, and careful instruction on the burden of proof'
as the means to attack ‘shaky but admissible
evidence.'” Burton v. Wyeth-Ayerst Labs. Div.
of American Home Prods. Corp., 513 F.Supp.2d 708, 710
(N.D. Tex. 2007) (citing Daubert, 509 U.S. at 596).
Motion to Strike Young (Dkt. 30)
argues the testimony of Young should be struck because
Plaintiff has already paid to repair the water damage at the
Property, and therefore, Young's estimates as to damages
and cost have no bearing on the facts of the case.
See Dkt. 30 at 5. Defendant further contends the
damages estimated by Young do not match the actual cost of
repair, and therefore, the testimony is not relevant,
reliable, or admissible under Federal Rule of ...