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Greater Hall Temple Church of God v. Southern Mutual Church Insurance Co.

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

August 30, 2019

GREATER HALL TEMPLE CHURCH OF GOD, Plaintiff,
v.
SOUTHERN MUTUAL CHURCH INSURANCE COMPANY, Defendant.

          ORDER

          BENJAMIN W. CHEESBRO, UNITED STATES MAGISTRATE JUDGE.

         This matter is before the Court on Defendant’s Motions requesting the Court strike the expert testimony of John Kern, Shawn Brown, and Alfred Teston. Docs. 46, 47, 63. Plaintiff has filed Responses to all Motions, and they are now ripe for review. For the following reasons, the Court GRANTS Defendant’s Motions to Strike the expert testimony of John Kern and Shawn Brown, docs. 46, 47, and GRANTS in part Defendant’s Motion to Strike the Affidavit of Alfred Teston. Doc. 63.

         BACKGROUND

         This case arises out of an insurance dispute. Plaintiff Greater Hall Temple Church of God (“Greater Hall”) owns a church insured by Defendant Southern Mutual Church Insurance Company (“Southern Mutual”). Doc. 48-13 at 1–2. At some point, the church suffered water damage. Doc. 59 at 1. The parties dispute the cause of this water damage and whether the damage is covered under the insurance policy provided by Defendant. Plaintiff argues Hurricane Matthew damaged the church roof, causing the roof to leak. Id. at 2–3. Defendant contends the water damage was instead caused by improper flashing and insufficient downspouts and, therefore, arose independent of any damage caused by Hurricane Matthew. Doc. 48-1 at 11; Doc. 48-8 at 2.

         Defendant filed a motion for summary judgment, concurrently with two motions to strike the testimony of Plaintiff’s experts, John Kern and Shawn Brown, regarding the cause of the church’s water damage.[1] Docs. 46, 47, 48. Defendant argues these individuals are not qualified under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S 579 (1993), and Federal Rule of Evidence 702 to offer expert testimony on this issue. Docs. 46, 47. Defendant also moved to strike the affidavit and any expert testimony from a third potential expert, Alfred Teston. Doc. 63. Defendant contends Plaintiff failed to timely disclose Mr. Teston as an expert and is, therefore, barred from offering expert testimony. Id.

         DISCUSSION

         Defendants have moved to strike the testimony of three witnesses-two (John Kern and Shawn Brown) on the grounds that they are not qualified to give expert testimony, and one, (Alfred Teston) because he was not properly disclosed as an expert within the time set by the Court’s Scheduling Order. The Court first sets forth the standard for the admissibility of expert testimony established by Daubert and Rule 702 before addressing the admissibility of Mr. Kern’s and Mr. Brown’s testimony. The Court then turns to the admissibility of Mr. Teston’s testimony and the timing of his disclosure as an expert witness.

         I. Legal Standard

         The Supreme Court’s holding in Daubert and the text of Rule 702 require trial judges to serve as gatekeepers in determining the admissibility of expert testimony. Fed. R. Evid. 702; Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999). In this Circuit, courts routinely look to three elements to determine if an expert is qualified under Daubert and Rule 702. As stated by the Eleventh Circuit, the elements for consideration are 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.

United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004) (citations omitted). “[A]lthough there is some overlap among the inquiries into an expert’s qualifications, the reliability of his proffered opinion and the helpfulness of that opinion, these are distinct concepts that courts and litigants must take care not to conflate.” Quiet Tech. DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1341 (11th Cir. 2003).

         The trial court has broad latitude in evaluating each of these three factors. As to qualifications, an expert may be qualified “by knowledge, skill, training, or education.” Hendrix ex rel. G.P. v. Evenflo Co., Inc., 609 F.3d 1183, 1193 (11th Cir. 2010). The expert need not have experience precisely mirroring the case at bar in order to be qualified. Maiz v. Virani, 253 F.3d 641, 665 (11th Cir. 2001). However, where an expert does have experience directly applicable to an issue at bar, “[t]he Committee Note to the 2000 Amendments of Rule 702 also explains that ‘nothing in this amendment is intended to suggest that experience alone . . . may not provide a sufficient foundation for expert testimony.’” Frazier, 387 F.3d at 1261.

         As to reliability, courts look, when possible, to: (1) whether the expert’s theory can be and has been tested; (2) whether the theory has been subjected to peer review and publication; (3) the known or potential rate of error of the particular scientific technique; and (4) whether the technique is generally accepted in the scientific community. Daubert, 509 U.S. at 593–94. However, these factors are not exhaustive, and “a federal court should consider any additional factors that may advance its Rule 702 analysis.” Quiet Tech., 326 F.3d at 1341. Finally, as to the third Daubert factor, expert testimony is likely to assist the trier of fact to the extent that “it concerns matters beyond the understanding of the average lay person and logically advances a material aspect of the proponent’s case.” Kennedy v. Elec. Ins. Co., No. 4:18cv148, 2019 WL 2090776, at *5 (S.D. Ga. May 13, 2019) (citing Daubert, 509 U.S. at 591).

         “The burden of laying the proper foundation for the admission of the expert testimony is on the party offering the expert, and the admissibility must be shown by a preponderance of the evidence.” Allison v. McGhan Med. Corp., 184 F.3d 1300, 1306 (11th Cir. 1999). However, “it is not the role of the district court to make ultimate conclusions as to the persuasiveness of proffered evidence.” Quiet Tech., 326 F.3d at 1341. Instead, “[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.” Daubert, 509 U.S. at 596.

         II. John Kern

         Defendant moves to exclude the testimony of Plaintiff’s expert John Kern. Doc. 46. Kern, at Plaintiff’s request, inspected the interior and exterior of the church on April 24, 2017, approximately six and a half months after Hurricane Matthew passed through Brunswick, Georgia, and approximately three months before this suit was filed. Doc. 46-4 at 3. After conducting a visual inspection and reviewing various documents and photographs, Kern authored a two-page report in which he stated his opinion on the cause of the damage to the church. Doc. 46-4.[2] Specifically, Kern stated:

The cause of a majority of the interior damage to the facility is due to the winds racking the wood frame structure and the wind causing uplift pressure on the R-Panel roof. The racking and uplift pressures has caused failure of the attachment screws. These types of roofs are susceptible to screw and washer failure. Typically, the screw holes are enlarged in the metal deck, and washers fail, making the roof leak. The roof has also undergone impact damage due to [Hurricane Matthew]. Based on the interior extent and locations of much of the damage, this is the cause for a majority of the damage. Concerning the flashing issues, the church did not have leaks prior to the substantial amount of rain. Flashing only failed when rain was excessive.

Id. at 4. Defendant characterizes this statement as offering various distinct opinions, but Kern’s central opinion is that Hurricane Matthew damaged the church roof, leading to additional water damage inside the church. Doc. 46-1 at 4. The distinct opinions Defendant describes all support Kern’s overall causation opinion, so the Court determines whether Kern may tender his overall conclusion as to the cause of the damage to the roof as an expert opinion at trial. Defendant argues Kern is prohibited from offering this opinion because he lacks expert qualifications, his opinions are unreliable, and his opinions are unhelpful to the trier of fact. Id. at 12–15.

         A. Qualification Requirement

         Kern currently works as a structural civil designer and is an engineer by training. Doc. 46-2 at 9. Kern obtained a bachelor’s degree in civil engineering in 1973, completed some coursework toward a master’s degree in engineering, and completes roughly 20 to 25 hours of continuing education a year to maintain his license as a civil engineer. Id. at 10–11. Kern began his own business in 1980 and estimates that he designed “millions of square feet of roofing, inspected, probably, hundreds of thousands of square feet of roofing[,]” and he has designed “over 100 buildings a year” taking into account estimated wind pressures when constructing the roofing on those structures. Id. at 12–13. Specifically, Kern designs roofs to withstand the wind pressures provided by the International Building Code for each structure. Id. at 13. Kern frequently conducts “inspections for roof repairs due to wind and rain damage” but has only testified regarding rain and wind damage to roofs three times in his career. Id. at 6–7.

         Defendant contends Kern is not qualified to offer expert testimony because he has limited working experience with R-Panel roofs, the type of roof at issue in this case. Doc. 46-1 at 13. As explained by Kern, an R-Panel roof is a type of metal roof which is secured to a building by screws. Doc. 46-2 at 21. Kern admits he does not use R-Panel roofs and expressed his disapproval of those types of roofs. Id. at 21. Kern instead prefers to use standing seam roofs, which do not utilize screws. Id. According to Kern, the very flaws he identified in the R-Panel roof in this case-that excessive wind will cause movement in the screws in the roof and result in leaking-are the reason he does not use those roofs in his own design. Id. Kern designed “two or three” buildings with R-Panel roofs at the beginning of his career, but generally has not designed a R-Panel roof since that time.[3] Id. None of the three cases where Kern testified regarding rain and wind damage to roofs involved an R-Panel roof, and Kern did not state how often he examines R-Panel roofs for damage outside of litigation. Id. at 23. However, when asked during his deposition, “in connection with damages suffered after any sort of storm event, is it common for you to see an R-Panel Roof?” Kern replied, “I have seen R-Panel roofs with leaks after storms, yes.” Doc. 46-2 at 41–42.

         The Federal Rules of Evidence provide that an expert must be qualified by “knowledge, skill, experience, training, or education.” Fed. R. Evid. 702. Not only must a witness have expertise, but the subject matter of the witness’s testimony must be sufficiently within that expertise. Maiz, 253 F.3d at 665. However, an expert need not have experience precisely mirroring the case at bar, as the Eleventh Circuit made clear in Maiz when it affirmed a district court decision that an economist was qualified to offer expert testimony relating to lost profits in a real estate venture, despite his lack of experience with real estate development. Id. Courts generally do not impose a rigorous qualifications requirement but instead look to whether a proposed expert has minimal qualifications in the area in which they seek to testify. See e.g., Hendrix, 255 F.R.D. at 584–85 (finding an expert qualified to testify regarding the shattering of a child restraint system even when he had not “designed or molded a CRS”); Cason v. C.R. Bard, Inc., No. 1:12-cv-1288, 2015 WL 9913809, at *10 (N.D. Ga. Feb. 9, 2015) (finding an expert qualified to testify regarding the design and testing of medical devices even when he had not worked with the blood clot filter at issue in the case). That is not to say the qualifications requirement is a rubber stamp, and “[e]xpertise in one field does not qualify a witness to testify about others.” Lebron v. Sec. of Fla. Dep’t of Children & Families, 772 F.3d 1352, 1369 (11th Cir. 2014) (affirming the determination that a psychiatrist specializing in drug use and related disorders was not qualified to testify regarding the level of drug use among Florida applicants for federal assistance when he had no experience related to applicants for that program, “much less” applicants in Florida); see also United States v. Hollis, 780 F.3d 1064, 1069–70 (11th Cir. 2015).

         However, the stringency, or lack thereof, of the qualifications requirement of Rule 702 does not abrogate the duty of the party offering the proposed expert, here the Plaintiff, to prove by a preponderance of the evidence that the proposed expert is in fact qualified to offer expert testimony. Allison, 184 F.3d at 1306. Ultimately, the “rules relating to Daubert issues are not precisely calibrated and must be applied in case-specific evidentiary circumstances that often defy generalization.” United States v. Brown, 415 F.3d 1257, 1266 (11th Cir. 2005). Trial courts are afforded “considerable leeway” in determining whether an expert is qualified under Daubert, and it is the responsibility of the trial court as gatekeeper to determine, based on the evidence put forward by the proffering party, whether a proposed expert is qualified. Kumho Tire, 526 U.S. at 152.

         The exact contours of Kern’s experience are unclear. Kern’s curriculum vitae is not in the record, and the only information the Court has concerning Kern’s qualifications are the statements made during his deposition.[4] Doc. 46-2. As previously noted, Kern is an engineer by training and has designed many buildings and examined many damaged roofs, though his experience with the type of roof at issue in this case is very limited. Id. at 21. Moreover, the record is not clear on whether Kern’s inspections of other roofs “due to wind and rain damage” entail Kern determining the cause of damage to a roof or merely determining the extent of the damage and what work is necessary to rectify that damage. Id. at 6–7. Accordingly, the Court can only say for certain that Kern has professional training as an engineer and general experience in designing roofs and inspecting them, sometimes after a storm. Id. at 6–13. The Court must determine whether this training and experience are sufficient to allow Kern to opine that Hurricane Matthew damaged the roof of Greater Hall and that roof damage caused the church to sustain additional water damage.

         Courts considering an engineer’s qualifications for offering expert opinion on the causes of structural damage engage in a fact-specific inquiry concerning the fit between the opinion offered and the expert’s qualifications. E.g., Grand Reserve of Columbus, LLC v. Property-Owners Ins. Co., 721 F. App’x 886, 888 (11th Cir. 2018) (affirming a finding that an expert was qualified to opine that a roof was damaged by hail where he had examined more than a thousand roofs and had assessed hail damage for other insurance companies); Coconut Key Homeowners Ass’n, Inc. v. Lexington Ins. Co., 649 F. Supp. 2d 1363');">649 F. Supp. 2d 1363, 1371 (S.D. Fla. 2009) (finding an expert unqualified to testify as to the wind speeds during Hurricane Wilma or the cause of the damages to the condominiums at issue in the case where he specialized in window replacement and had no background in engineering or in pressure damage); see also Palm Bay Yacht Club Condo. Ass’n, Inc. v. QBE Ins. Corp., No. 10-23685, 2012 WL 1345317, at *5 (S.D. Fla. Apr. 18, 2012) (finding a claims adjuster with experience in over 15,000 insurance losses, including hurricane claims was qualified to offer an opinion that a hurricane was the cause of the damage to a building); Banta Properties, Inc. v. Arch Specialty Ins. Co., No. 10-61485, 2011 WL 13096476, at *2 (S.D. Fla. Dec. 22, 2011) (finding a professional engineer with minimal experience dealing with roofs not qualified to offer an expert opinion about roofs, but qualified to offer an expert opinion as to whether a hurricane damaged a property so long as he did “not opine on roof conditions that he did not observe or consider.”).

         Additionally, the United States District Court for the Southern District of Florida considered a similar proffered expert testimony Clena Investments, Inc. v. XL Specialty Insurance Company, 280 F.R.D. 653 (S.D. Fla. 2012). In Clena, the trial court had to determine whether a professional engineer with experience designing buildings was qualified to opine that a building’s roof was damaged by a particular hurricane rather than another storm or the normal passage of time. Id. The court determined the witness in that case was qualified to provide that opinion, noting the witness’s experience ensuring building construction compliance with the Hurricane Code and his work in a side business conducting roof investigations. Id. at 661. This, coupled with the witness’s educational background, resume, expert report, and testimony provided during a hearing on the motion to strike, convinced the court that the witness was qualified to testify as to whether the building at issue was damaged by a particular hurricane. Id.

         Kern’s qualifications are similar in some respects to the witness in Clena. Kern has an educational background in engineering and has designed many buildings over his career. However, that is where the similarities end. Unlike the witness in Clena, who ensured compliance with the Hurricane Code and regularly investigated the cause of roof damage, there is no indication before the Court that Kern has any experience building structures to withstand storm winds or determining whether wind has caused roof damage.[5] Additionally, unlike the record in Clena, the record here does not contain Kern’s resume, and Kern’s report is entirely silent as to his qualifications. Doc. 46-4. Kern also has extremely limited experience with R-Panel roofs like the roof at issue in this case. He has designed only two or three building with that type of roof years ago and did not note during his deposition or any other documents provided to the Court how often he examined those sorts of roofs for damage. Kern’s dearth of experience with R-Panel roofs is important because his causation opinion turns largely on his view of the unique attributes of R-Panel roofs-a roofing system with which he has little experience. See Doc. 46-4 at 4 (Kern opining, “These types of roofs are susceptible to screw and washer failure.”).

         All of these facts lead the Court to conclude Plaintiff has not produced sufficient evidence to qualify Kern to opine that Hurricane Matthew damaged the church roof and that the church suffered water damage as a result. The record is silent as to Kern’s experience addressing wind velocity and diagnosing the cause of roof damage, which is at the heart of the testimony he seeks to offer in this case. And he has very little experience with R-Panel roofs, the system at issue in this case. Because Kern is not qualified to offer an expert opinion on this matter, Kern’s testimony shall be limited to lay testimony permitted under Federal Rule of Evidence 701, and he may not offer expert opinion testimony on the issue of causation.

         B. Reliability Requirement

         Even if Kern were qualified to offer expert testimony in this case, Plaintiff has not met its burden of establishing that Kern used a reliable methodology in forming his causation opinion. Doc. 46-1. Kern’s physical examination of the church property consisted of him climbing a ladder up to the roofline at “six or eight” different points and visually inspecting the roof. Doc. 46-2 at 15. Kern did not climb onto the roof or do any physical testing of the roof. Id. at 15–16. Kern observed multiple screws holding down the roof, but he did not test or examine any of the screws and was unable to state which screws failed in the roof. Id. at 26–27. He also observed improper flashing at several areas on the roof.[6] Id. at 36–37. Kern also walked through the interior of the building and observed where water damage was present in the building. Id. at 24. He did not compare those areas to the location of purportedly loose screws on the roof, but rather, noted that the damage was “throughout the facility[,]” including in the interior of the structure away from exterior walls. Id. at 30.

         In addition to his physical examination of the property, Kern obtained weather data from the National Weather Service for the dates of October 7 and 8, 2016, when Hurricane Matthew passed through Brunswick. Id. at 20. However, he no longer has that data available and estimated during his deposition that the data he obtained concerned rain and wind measurements for a location approximately 20 miles away from the church and showed 8 to 10 inches of rain in the area with wind gusts up to 80 miles per hour. Id.

         Kern also reviewed 125 undated photographs of the facility provided by “somebody from the church.” Id. at 17.[7] In reviewing these photos, he did note several small dents in the roof suggestive of impact, which in his opinion suggested either hail, “or impact from things during the hurricane[,]” though he could not be certain of their origin. Id. at 28. Kern also reviewed a diagram of the roof and a separate report on the source of the roof damage prepared by Donan Engineering, an independent firm retained by Defendant to examine the roof. Id. at 16–18. Kern examined a January 11, 2017 letter from Alfred Teston, who inspected the roof, to Mr. Hall, the pastor of Greater Hall, who opined that the church ...


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