United States District Court, S.D. Georgia, Statesboro Division
CARRIE FINCH, Individually and as Executor of the Estate of Juvay Finch, Plaintiff,
OWNERS INSURANCE COMPANY, Defendant.
RANDAL HALL, CHIEF JUDGE
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.
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.
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.
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.)
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.
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.
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.
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).
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).
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.
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 ...