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Finch v. Owners Insurance Co.

United States District Court, S.D. Georgia, Statesboro Division

February 4, 2019

CARRIE FINCH, Individually and as Executor of the Estate of Juvay Finch, Plaintiff,



         Before the Court is Defendant's motion to exclude the testimony of Plaintiff's expert Stuart Gregory. (Doc. 84.) Defendant challenges the qualifications, reliability, and helpfulness of Mr. Gregory's testimony, pursuant to Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 57 9 (1993). Defendant also argues Mr. Gregory should be prevented from relying on certain photographs because Plaintiff never disclosed that evidence in the expert witness report. For the reasons set forth below, Defendant's motion to exclude is GRANTED IN PART AND DENIED IN PART.

         I. BACKGROUND

         Prior to making this motion, Defendant moved for partial summary judgment and to exclude three expert witnesses. (See Docs. 27, 28.) The Court's Order of December 6, 2017, addressed those motions and provided the case's relevant factual background. (Doc. 65.) Those facts are now incorporated herein by reference. Nevertheless, a brief recitation of the relevant timeline is appropriate.

         In January 2016, it was discovered that Plaintiff's roof had been damaged by a hailstorm that occurred in June 2015. Plaintiff informed her insurer, Defendant Owners Insurance Company, which sent its claims adjuster, John Dukes, to investigate. Mr. Dukes inspected the roof and determined that Plaintiff s insurance policy covered the cost of a roof replacement. Between April and May 2016, a new roof was installed on Plaintiff's house. Two months prior to the replacement, however, Plaintiff discovered water intrusion and mold damage inside the house. When Plaintiff filed a new insurance claim for that damage, Defendant sent engineer Ron Powers to inspect the home. Mr. Powers concluded the water damage was attributable to surface water, improper construction, and inadequate maintenance, none of which were covered perils under the insurance policy. At bottom, this case turns on whether the hail damage to the roof caused the water intrusion and resulting damage. This is the issue about which Plaintiff's expert, Stuart Gregory, will testify.

         Defendant's current motion is the second attempt to exclude the testimony of Mr. Gregory. (See Doc. 28.) The Court denied Defendant's prior motion to exclude. (Order of Dec. 6, 2017, Doc. 65, at 5-10.) In its Order, the Court noted that Plaintiff violated Federal Rule of Civil Procedure 26(a) (2) (B)' s disclosure and supplementation requirements, but there was no evidence to suggest it was done in bad faith. (Id. at 8.) As such, exclusion was too harsh a penalty, particularly because "Mr. Gregory's testimony is the only evidence Plaintiff has to demonstrate the source of water damage, which is an essential part of Plaintiff's complaint." (Id. at 8-9.) Instead, the Court reopened discovery and allowed Defendant to depose Mr. Gregory. (Id. at 9.) The Court also denied Defendant's request to exclude Mr. Gregory on the basis of unreliable methods (Id. at 10), noting again that such a decision was premature without the benefit of a deposition. (Id.) Subsequently, Defendant deposed Mr. Gregory and now renews its motion to exclude his testimony. (Doc. 84.)


         Federal Rule of Evidence 702 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 of the facts of the case.

         "As the Supreme Court recognized in Daubert v. Merrell Dow Pharms., Inc., Rule 702 plainly contemplates that the district court will serve as a gatekeeper to the admission of scientific testimony." Quiet Tech. DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1340 (11th Cir. 2003). "The burden of laying the proper foundation for the admission of the expert testimony is on the party offering the expert, and admissibility must be shown by a preponderance of the evidence." Allison v. McGhan Med. Corp., 184 F.3d 1300, 1306 (11th Cir. 1999).

         Courts engage in a three-part inquiry to determine the admissibility of expert testimony under Rule 702. Quiet Tech., 326 F.3d at 1340. Specifically, the court must consider whether:

(1) The expert is qualified to testify competently regarding the matters he intends to address; (2) the methodology by which the expert reaches his conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Daubert; and (3) the testimony assists the trier of fact, through the application of scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in issue.

Id. at 1340-41.

         First, an expert may be qualified to testify due to his knowledge, skill, experience, training, or education. Trilink Saw Chain, LLC v. Blount, Inc., 583 F.Supp.2d 1293, 1304 (N.D.Ga. 2008). A witness's qualifications must correspond to the subject matter of his proffered testimony. See Jones v. Lincoln Elec. Co., 188 F.3d 709, 723 (7th Cir. 1999).

         Second, the expert's opinions must be reliable. In Daubert, the Supreme Court directed district courts faced with the proffer of expert testimony to conduct "a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue." 509 U.S. at 592-93. There are four factors that courts should consider: (1) whether the theory or technique can be tested, (2) whether it has been subject to peer review, (3) whether the technique has a known or potential rate of error, and (4) whether the theory has attained general acceptance in the relevant community. Id. at 593-94. "These factors are illustrative, not exhaustive; not all of them will apply in every case, and in some cases other factors will be equally important in evaluating the reliability of proffered expert opinion." United States v. Frazier, 387 F.3d 1244, 1262 (11th Cir. 2004). Thus, "the trial judge must have considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable." Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999).

         Regardless of the specific factors considered, "[p]roposed testimony must be supported by appropriate validation - i.e., *good grounds,' based on what is known." Daubert, 509 U.S. at 590. In most cases, "[t]he expert's testimony must be grounded in an accepted body of learning or experience in the expert's field, and the expert must explain how the conclusion is so grounded." Fed.R.Evid. 702, advisory committee's notes (2000 amendment). "Presenting a summary of a proffered expert's testimony in the form of conclusory statements devoid of factual or analytical support is simply not enough" to carry the proponent's burden. Cook ex rel. Estate of Tessier v. Sheriff of Monroe Cnty., Fla., 402 F.3d 1092, 1113 (11th Cir. 2005). Thus, neither an expert's qualifications and experience alone nor his unexplained assurance that his or her opinions rely on accepted principles is sufficient. McClain v. Metabolife Int'l, Inc., 401 F.3d 1233, 1244 (11th Cir. 2005); Frazier, 387 F.3d at 1261. Moreover, when analyzing a witness's reliability, courts must be careful to focus on the expert's principles and methodology rather than the scientific conclusions that they generate. Daubert, 509 U.S. at 595.

         Third, expert testimony must assist the trier of fact to decide a fact in issue. Thus, the testimony must concern matters beyond the understanding of the average lay person and logically advance a material aspect of the proponent's case. Daubert, 509 U.S. at 591; Frazier, 387 F.3d at 1262. The Supreme Court has described this test as one of "fit." Daubert, 509 U.S. at 591. "Proffered expert testimony generally will not help the trier of fact when it offers ...

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