United States District Court, S.D. Georgia, Savannah Division
JOHN G. KENNEDY, III, Plaintiff,
ELECTRIC INSURANCE COMPANY, Defendant.
LISA GODBEY WOOD, JUDGE UNITED STATES DISTRICT COURT.
the Court is Defendant Electric Insurance Company's
Motion to Exclude Plaintiff's Expert John Tanner and
Defendant's Motion for Summary Judgment, dkt. no. 22.
These Motions have been fully briefed and are ripe for
review. For the reasons that follow, the Motions are
about October 8, 2016,  Hurricane Matthew struck
Plaintiff's property. Dkt. No. 25-4 ¶
Plaintiff's property abuts the Wilmington River.
Id. ¶ 2. The storm surge from Hurricane Matthew
significantly damaged Plaintiff's property, including his
house, yard, roofed dock, and walkway. Id. Plaintiff
did not witness the hurricane. Id. ¶ 4.
parties dispute whether the damage to Plaintiff s dock and
walkway were excluded from a homeowner's insurance policy
that Plaintiff had with Defendant. The policy at issue
precludes coverage over damage caused in whole or in party by
storm surge. Dkt. No. 25-4 114. An engineering expert for
Defendant, Carl Douglas Day, concluded after inspecting the
premises that the dock and walkway were damaged by storm
surge. Id. ¶ 5. Nevertheless, Day agreed that
the damage to the dock was consistent with being caused by a
tornado with 120 mile an hour winds. Dkt. No. 25-2 at 71.
Another engineering expert for Defendant, Douglas Locker,
also inspected the property and concluded that the dock and
walkway were primarily damaged by storm surge. Dkt. No. 25-4
however, retained his own expert, John Tanner, who concluded
that the dock and walkway were damaged by a tornado. Dkt. No.
25-4 ¶ 7. Tanner made this conclusion despite the facts
that there were no eyewitnesses to the tornado, id.
¶ 9, that Tanner is unsure of when the tornado struck
the dock, id. ¶ 10, that Tanner is unsure when
the storm surge struck the area of the dock, id.
¶ 11, that the storm surge exceeded the height of the
"dock base," id. ¶ 13, and that on
October 8, 2016, there was no official report or finding of a
tornado at or near Plaintiff's property, id.
Daubert Challenge of Expert John Tanner
argues that Plaintiff s expert John Tanner is not qualified
to be an expert under Federal Rule of Evidence 702, that his
expert opinions do not satisfy Rule 702, and thus, that his
opinions should be excluded. It is well-settled that
"[e]vidence inadmissible at trial cannot be used to
avoid summary judgment." Lebron v. Sec'y of Fla.
Dep't of Children & Families, 772 F.3d 1352,
1360 (11th Cir. 2014) (citation omitted). Accordingly, if
Tanner is not qualified as an expert and if his opinions do
not satisfy the dictates of Rule 702, then his opinions
cannot be considered for purposes of this summary judgment
Rule of Evidence 702 states:
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 to 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. 1999).
three-pronged inquiry determines the admissibility of expert
testimony under Rule 702:
(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