Vehse et al v. Liberty Mutual Fire Insurance Company

Filing 55

ORDER: Defendant Liberty Mutual Fire Insurance Company's Motion to Exclude Expert Opinion of Sunil Gulati, or in the Alternative, for a Daubert Hearing (Doc. # 41 ) is DENIED. Signed by Judge Virginia M. Hernandez Covington on 2/22/2017. (KAK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
GOETZ D. VEHSE,
Plaintiff,
v.

Case No. 8:16-cv-599-T-33JSS

LIBERTY MUTUAL FIRE INSURANCE
COMPANY,
Defendant.
________________________________/
ORDER
This cause is before the Court pursuant to Defendant
Liberty Mutual Fire Insurance Company’s Motion to Exclude
Expert Opinion of Sunil Gulati, or in the Alternative, for a
Daubert Hearing (Doc. # 41), which was filed on December 14,
2016. Plaintiff Goetz Vehse filed a Response in Opposition to
the Motion (Doc. # 48) on January 17, 2017, and Liberty Mutual
filed a Reply (Doc. # 49) on January 25, 2017.

For the

reasons that follow, the Court denies the Motion.
I.

Background
Vehse asserts that Liberty Mutual breached the terms of

a homeowners insurance policy with respect to sinkhole damage
in this removed case. In Vehse’s Amended Complaint, filed May
13, 2016, he explains that he sustained sinkhole damage to his
New Port Richey, Florida, home in July of 2010, when his home
was insured by Liberty Mutual. (Doc. # 18 at ¶ 7).

Liberty

Mutual

performed

“the

recommended

repairs

necessary

to

stabilize the land and repair the foundation.” (Id. at ¶ 9).
All repairs were completed as of February 16, 2011. (Id.). In
2012, Liberty Mutual declined to continue to insure Vehse’s
property. (Doc. # 41 at 1).
Years later, in 2015, Vehse observed “damage to the
Property that was not repaired, had re-appeared, and was
worsening.” (Doc. # 18 at ¶ 10).

Vehse alleges that the

repairs Liberty Mutual previously made to his property during
the

2010

-

undertaken.

2011

remediation

time-frame

were

negligently

Vehse sought coverage from Liberty Mutual, but

Liberty Mutual denied coverage arguing the damage discovered
in 2015 occurred outside of any Liberty Mutual policy period.
(Doc. # 41 at 1).
Vehse now seeks damages for breach of contract, asserting
in Count One of his Amended Complaint that:
Defendant has materially breached the Policy by:
(a) failing to stabilize the land or repair the
foundation following a verified sinkhole loss; or
failing to pay the policy limits without reduction
for the amounts paid for the prior repairs. (b)
failing to adjust the subsurface remediation in
consultation with the Plaintiff as required by the
sinkhole endorsement. (c) refusing to pay all
amounts due and owing to the Plaintiff under the
policy of insurance.

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(Doc. # 18 at ¶ 17).
Liberty

Mutual

breached

In Count Two, Vehse contends that
the

insurance

contract

because:

“Defendant undertook a repair of Plaintiff’s Property.

By

virtue of Defendant’s purported election to repair under the
above-referenced insurance contract, a new repair contract
arose by implication of law, under which Defendant was bound
to restore Plaintiff’s home to a pre-loss condition within a
reasonable time.” (Id. at ¶¶ 27-28).
On May 23, 2016, Liberty Mutual filed its Answer and
Affirmative Defenses to Vehse’s Amended Complaint. (Doc. #
20). Among other defenses, Liberty Mutual claims that Vehse’s
suit “is barred by accord and satisfaction” because “Liberty
Mutual has tendered all amounts due under the Policy, and
these amounts were accepted by the Plaintiff.” (Id. at 4).
Liberty Mutual also contends that Vehse “did not suffer damage
during the Policy Period” with respect to the damages Vehse is
now claiming. (Id.).
The case is set for a jury trial during the Court’s May
2017 trial term. (Doc. # 14).

At this juncture, Liberty

Mutual seeks an Order excluding Vehse’s expert witness, Sunil
Gulati, or in the alternative, a Dabert hearing to determine
the admissibility of Gulati’s opinions. Liberty Mutual has
filed Gulati’s January 11, 2016, expert report, which includes
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a discussion of the damage to the property, a $103,840.00
estimate

for

photographs

repairs,
of

the

an

appraisal

property,

of

the

property,

architectural

drawings,

handwritten drawings, and other documents.

(Doc. # 41-1).

Liberty Mutual has also supplied the Court with the December
6, 2016, deposition transcript of Gulati, as well as other
documents. (Doc. # 41-2). At the Court’s direction, Vehse
filed Gulati’s CV. (Doc. # 54).
After due consideration, the Court determines that it is
not

necessary

to

hold

a

Daubert

hearing.

See

City

of

Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548, 565 at n.21
(11th Cir. 1998)(“Daubert hearings are not required by law or
by rules of procedure” although they may be “fruitful uses of
the court’s time and resources in complicated cases involving
multiple

expert

witnesses”).

Based

on

the

detailed

submissions provided by the parties, the Court denies the
Motion.
II.

Discussion
The admissibility of expert testimony is governed by

Federal Rule of Evidence 702, which states 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
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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.
Fed. R. Evid. 702.
Rule 702 is a codification of the Court’s landmark case
of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993).

In Daubert, the Court described the gatekeeping

function of the district court to ensure expert testimony and
evidence “is not only relevant, but reliable.” Id. at 589. As
stated in the Advisory Committee Notes accompanying Rule 702
of the Federal Rules of Evidence, “A review of the case law
after Daubert shows that the rejection of expert testimony is
the exception rather than the rule.”

See Advisory Committee

Notes to the 2000 Amendment to Rule 702.

In addition, the

trial judge is afforded broad discretion in deciding Daubert
issues. See Kuhmo Tire Co. v. Carmichael, 526 U.S. 137, 152
(1999).
In Rink v. Cheminova, Inc., 400 F.3d 1286 (11th Cir.
2005), the Eleventh Circuit set forth a three-pronged approach
for doing so:
To fulfill their obligation under Daubert, district
courts must engage in a rigorous inquiry to
determine whether: (1) the expert is qualified to
-5-

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 1291 (internal citations omitted).

The party offering

an expert has the burden of satisfying each of these elements
by a preponderance of the evidence. Id. at 1292; see also
Allison v. McGhan Med. Corp., 184 F.3d 1300, 1306 (11th Cir.
1999).
A.

Gulati is Qualified

The first question under Daubert is whether Gulati is
qualified to testify competently regarding the matters he
intends to address. Harcros Chems., Inc., 158 F.3d at 563.
“Determining whether a witness is qualified to testify as an
expert ‘requires the trial court to examine the credentials of
the proposed expert in light of the subject matter of the
proposed testimony.’” Clena Invs., Inc. v. XL Specialty Ins.
Co., 280 F.R.D. 653, 660 (S.D. Fla. 2012)(quoting Jack v.
Glaxo Wellcome, Inc., 239 F. Supp. 2d 1308, 1314–16 (N.D. Ga.
2002)). “This inquiry is not stringent, and so long as the
expert is minimally qualified, objections to the level of the
expert’s

expertise

[go]

to

credibility
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and

weight,

not

admissibility.” Id. (citations omitted)(internal quotation
marks omitted; alteration in original)).
Gulati obtained his Bachelor of Science and his Master of
Science at the Illinois Institute of Technology. (Doc. # 541).

He is a Registered Professional Engineer, Registered

Environmental

Property

Assessor,

Environmental Assessor. (Id.).

and

Certified

Florida

Gulati “has over 20 years

experience in conducting Geotechnical investigations including
sinkhole evaluations, Ground Penetrating Radar (GPR) testing
and analysis, geotechnical design, environmental consulting,
construction materials testing and, supervision and roadway
construction management.” (Id.).

In the last five years,

Gulati has “supervised the completion of over 1500 sinkhole
evaluation projects” in Florida. (Id.).
Gulati’s CV, relevant work experience, and familiarity
with the sinkhole remediation industry render him sufficiently
qualified to offer expert testimony in this case. “[A]fter an
individual

satisfies

the

relatively

low

threshold

for

qualification, the depth of one’s qualification may be the
subject of vigorous cross-examination.” QBE Ins. Corp. v.
Jorda Enters., Inc., No. 10-21107, 2012 WL 913248, at *3 (S.D.
Fla. Mar. 16, 2012).

In addition, the Court observes that

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another court has found Gulati to be qualified as an expert in
a similar context. See Foster v. Cotton States Mut. Ins. Co.,
No. 5:12-cv-150-Oc-34PRL, 2013 U.S. Dist. LEXIS 194435, at *3
(“Regarding

qualifications,

Mr.

Gulati

is

a

licensed

geotechnical engineer with twenty years of experience in
classifying

soils

as

part

of

more

than

1500

sinkhole

evaluation projects.”).
B.

Gulati’s Methodology is Reliable

The thrust of Liberty Mutual’s Daubert challenge is that
Gulati’s methodology is scientifically unreliable.

Liberty

Mutual points to the following statement in Gulati’s expert
report, and contends that it is unsupported and unfounded:
“The subject structure was built in 2000, and the homeowner
first noticed damages recently.
still

underlain

by

karst

The subject structure is

conditions

as

the

sinkhole

remediation program implemented by RCG has been deficient.”
(Doc. # 41-1 at 11)(emphasis added).1

1

During his deposition, Gulati explained that “RCG” is
Rimkus Consulting Group, Inc. - the Company that completed
repairs to the home pursuant to Vehse’s claim in 2010. (Gulati
Dep. Doc. # 41-2 at 60). Gulati also explains that “karst
condition is where sinkhole activity has gone through
dissolution and that condition is still there.
Means
dissolved. Limestone conditions are still present.” (Id. at
40).
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Liberty Mutual seeks “to exclude Mr. Gulati’s opinion
because Mr. Gulati did not collect or record reliable data as
the basis for his opinion, and the opinion itself is a
conclusion that is not supported by logic or science.” (Doc.
# 49 at 1-2).

As an example, Liberty Mutual “questions Mr.

Gulati’s lack of precision in describing where one of his
standard penetration test borings was performed, and how Mr.
Gulati went from describing soil samples recovered during the
boring as ‘possible grout’ to definitively calling the sample
‘grout.’” (Id. at 4).
Rather than demonstrating that Gulati’s expert opinion is
unsupported and unreliable, the arguments Liberty Mutual
present have simply identified some areas of concern that may
be brought out during cross examination.

That Liberty Mutual

disagrees with Gulati’s opinion is not a basis for striking
Gulati’s opinion.

Rather, Liberty Mutual should be prepared

to probe these matters further through the adversarial system,
such as with a vigorous cross examination.

In Taylor, Bean &

Whitaker Mortgage Corp. v. GMAC Mortgage Corp., No. 5:05-cv260-Oc-GRJ, 2008 U.S. Dist. LEIS 125076, at *18 (M.D. Fla.
Aug. 12, 2008), the court noted:
[T]hese arguments go more to the weight of the
evidence, than the admissibility of the evidence
-9-

under Daubert. The Court need not determine that
the expert [defendant] seeks to offer into evidence
is irrefutable or certainly correct. The certainty
and correctness of [the expert’s] opinion will be
tested through cross-examination and presentation
of contrary evidence and not by a Daubert
challenge. Indeed the Court’s role as gatekeeper
is not intended to supplant the adversary system or
the role of the jury.
Id.
Liberty Mutual likewise maintains:
Mr. Gulati may have found sinkhole conditions in
January 2016 at Plaintiff’s Property, but Mr.
Gulati cannot date the activity. Nor can anyone
else. This means that the conditions could have
occurred, as Mr. Gulati put it, “thousands of years
ago, or more recently after the 2011 repairs. If
Mr. Gulati cannot determine how long the purported
sinkhole conditions have existed, he cannot link
the sinkhole conditions to the repairs performed in
2011.
Accordingly, Mr. Gulati’s finding of
purported sinkhole conditions in 2016 does not
support the assertion that the repairs in 2011 were
implemented deficiently.
(Doc. # 41 at 7)(internal citation omitted).
The court in Block 60 Holdings LLC v. Southern Owners
Insurance Company, No 3:13-cv-1397-J-34PDB, 2015 U.S. Dist.
LEXIS 5572 (M.D. Fla. Jan. 16, 2015), rejected a similar
argument.

There, the insurance company raised a Daubert

challenge to the opinions of the plaintiff’s expert, including
the opinion that sinkhole activity damaged the plaintiff’s
property in 2007, based on data collected in 2013.

The court

held that the expert opinions in question were “sufficiently

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reliable to satisfy the requirements of Daubert and Rule 702"
and further iterated:
Southern-Owners is free to cross-examine [the
experts], much like it did at their depositions,
about the effects of a drought, tropical storm, and
the passage of time between the alleged sinkhole
activity and [the] collection of data upon which
both [experts] rest their conclusions.
However,
such questions do not render their scientific
opinions unreliable. See Daubert, 509 U.S. at 590
(“[I]t would be unreasonable to conclude that the
subject of scientific testimony must be ‘known’ to
a certainty; arguably, there are not certainties in
science.”).
The Court concludes that SouthernOwners’
questions
regarding
the
experts’
methodology are better resolved through the
adversary system. See id. at 596 (“Vigorous crossexamination, presentation of contrary evidence, and
careful instruction on the burden of proof are the
traditional and appropriate means of attacking
shaky but admissible evidence.”).
While [the
experts] may not be able to conclude with absolute
certainty that sinkhole activity was present in
2007, they have done so to a reasonable degree of
certainty based on [the] reports of damage, the
recorded observations of damage to the property,
the data . . . collected, their educational
training
and
their
practical
experience
as
engineers conducting subsidence investigations.
This basis is sufficient to satisfy the threshold
reliability requirement.
Id. at *6.
The Court reaches a similar finding.

Gulati’s extensive

experience and his detailed expert report present a reasonably
reliable
opinion.

foundation

for

the

presentation

of

his

expert

The Court agrees with Vehse that Liberty Mutual
-11-

“appears to attack the opinions [of the expert] as opposed to
the methodology.” (Doc. # 48 at 2).

Liberty Mutual has not

convinced the Court that Gulati’s opinion, including his
methodology, is unreliable.
C.

Gulati Will Assist the Trier of Fact

Expert testimony is helpful to the trier of fact “if it
concerns matters that are beyond the understanding of the
average lay person.” United States v. Frazier, 387 F.2d 1260,
1262 (11th Cir. 2004). In other words, “[p]roffered expert
testimony generally will not help the trier of fact when it
offers nothing more than what lawyers for the parties can
argue in closing arguments.” Id. at 1262-63.
Gulati’s deposition and the parties’ submissions are
replete

with

references

to

“chemical

grouting,”

“slurry

grout,” “deep cement grouting,” “weight of hammer condition,”
“geotechincal conditions” and “differential settlement,” among
other specialized terms. (Gulati Dep. Doc. # 41-2 at 10, 12,
19,

26,

35).

These

phrases

may

be

commonplace

in

the

insurance industry, especially in the context of sinkhole
claims.

However, the average lay person is likely unfamiliar

with some or all of these designations.

In addition, the

Court finds that even the most savvy juror could benefit from
scientific testimony regarding the geological forces that
-12-

create sinkholes and the techniques that are used to remediate
sinkhole damage.

Accordingly, the Court finds that Gulati’s

testimony will assist the trier of fact.

The Motion is thus

denied.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
Defendant Liberty Mutual Fire Insurance Company’s Motion
to

Exclude

Expert

Opinion

of

Sunil

Gulati,

or

in

the

Alternative, for a Daubert Hearing (Doc. # 41) is DENIED.
DONE and ORDERED in Chambers in Tampa, Florida, this 22nd
day of February, 2017.

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