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Kennedy v. Electric Insurance Company

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

May 13, 2019

JOHN G. KENNEDY, III, Plaintiff,
v.
ELECTRIC INSURANCE COMPANY, Defendant.

          ORDER

          HON. LISA GODBEY WOOD, JUDGE UNITED STATES DISTRICT COURT.

         Before 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 DENIED.

         BACKGROUND

         On or about October 8, 2016, [1] Hurricane Matthew struck Plaintiff's property. Dkt. No. 25-4 ¶ 1.[2] 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.

         The 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 ¶ 6.

         Plaintiff, 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. ¶ 15.[3]

         DISCUSSION

         I. Daubert Challenge of Expert John Tanner

         Defendant 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 motion.

         Federal 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.

         "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).

         A 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 ...

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