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Brandy Ventures, LLC v. Mesa Underwriters Specialty Insurance Co.

United States District Court, E.D. Texas, Sherman Division

December 3, 2019

BRANDY VENTURES, LLC, Plaintiff,
v.
MESA UNDERWRITERS SPECIALTY INSURANCE COMPANY, Defendant.

          MEMORANDUM OPINION AND ORDER

          KIMBERLY C. PRIEST JOHNSON UNITED STATES MAGISTRATE JUDGE.

         Before 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).

         As set forth below, the Court finds the Motion to Strike Young (Dkt. 30) and the Motion to Strike Malicki (Dkt. 33) are DENIED.

         I. BACKGROUND

         This 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.

         Plaintiff 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.

         Defendant 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.

         II. LEGAL STANDARD

         Rule 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)).

         Expert 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.

         In 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).

         III. ANALYSIS

         A. Motion to Strike Young (Dkt. 30)

         Defendant 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 ...


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