The Palm Bay Yacht Club, Inc. v. QBE Insurance Corporation
Filing
109
ORDER denying 58 Motion in Limine; denying 58 Motion for Hearing. Signed by Magistrate Judge John J. O'Sullivan on 4/18/2012. (mkr)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 10-23685-CIV-LENARD/O’SULLIVAN
THE PALM BAY YACHT CLUB
CONDOMINIUM ASSOCIATION, INC.,
Plaintiff,
v.
QBE INSURANCE CORPORATION,
Defendant.
__________________________/
ORDER
THIS MATTER came before the Court on the Defendant’s Motion in Limine to
Preclude Testimony of Plaintiff’s Expert Witne[s]s Paul Norcia, or in the Alternative,
Motion for Daubert Hearing and Incorporated Memorandum of Law (DE# 58, 1/19/12).
Having reviewed the applicable filings and the law, it is
ORDERED AND ADJUDGED that the Defendant’s Motion in Limine to Preclude
Testimony of Plaintiff’s Expert Witne[s]s Paul Norcia, or in the Alternative, Motion for
Daubert Hearing and Incorporated Memorandum of Law (DE# 58, 1/19/12) is DENIED.
BACKGROUND
The defendant filed the instant motion on January 19, 2012. See Defendant’s
Motion in Limine to Preclude Testimony of Plaintiff’s Expert Witne[s]s Paul Norcia, or in
the Alternative, Motion for Daubert Hearing and Incorporated Memorandum of Law
(DE# 58, 1/19/12). The plaintiff filed a response on February 2, 2012. See Plaintiff’s
Response and Incorporated Memorandum of Law in Opposition to Defendant’s Motion
in Limine Regarding Paul Norcia (DE# 68, 2/2/12). The defendant filed a reply on
February 13, 2012. See Defendant’s Reply to Plaintiff’s Response [D.E. 68] in
Opposition to Defendant’s Motion in Limine Regarding Paul Norcia [D.E. 58] (DE# 78,
2/13/12). This matter is ripe for consideration.
STANDARD OF REVIEW
District courts have broad discretion in deciding to admit or exclude expert
testimony. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 142 (1997). “Federal Rule of
Evidence 702, as explained by the Supreme Court in Daubert v. Merrell Dow
Pharmaceuticals, Inc.[, 509 U.S. 579 (1993)] and its progeny, controls determinations
regarding the admissibility of expert testimony.” City of Tuscaloosa v. Harcros Chems.,
Inc., 158 F.3d 548, 562 (11th Cir. 1998) (footnote and citation omitted). Under Daubert,
and Rule 702, the Court serves as a gatekeeper to the admission of scientific evidence.
Quiet Technology DC-8 v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1340 (11th Cir. 2003)
(citing Daubert, 509 U.S. 579, 589 (1993); and McCorvey v. Baxter Healthcare Corp.,
298 F.3d 1253, 1256 (11th Cir. 2002)); Rink v. Cheminova, 400 F.3d 1286, 1291 (11th
Cir. 2005). To determine the admissibility of expert testimony under Rule 702, the Court
must undertake the following three-part inquiry:
(1) [T]he 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 by Daubert; and (3) the testimony assists the trier of fact,
through the application of scientific, technical, or specialized expertise, to
understand evidence or to determine a fact in issue.
Quiet Technology, 326 F.3d at 1340-41 (citing City of Tuscaloosa v. Harcros Chems.,
Inc., 158 F.3d 548, 562 (11th Cir. 1998) (citing Daubert, 509 U.S. at 589) (other citation
omitted). “The burden of establishing qualification, reliability, and helpfulness rests on
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the proponent of the expert opinion, whether the proponent is the plaintiff or defendant
in a civil suit, or the government or the accused in a criminal case.” United States v.
Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004) (en banc).
To the extent the defendant requests a Daubert hearing,1 the undersigned finds
that such a hearing is unnecessary in ruling on the instant motion. “In some cases, an
evidentiary hearing is unnecessary because the parties' reciprocal submissions are
sufficient to enable the court to resolve the reliability issue without taking live
testimony.” Frazier, 387 F.3d at 1274 at n.4 (citing Kumho Tire Co., Ltd. v. Carmichael,
526 U.S. 137,152 (1999); see also Cook v. Sheriff of Monroe County, Fla., 402 F.3d
1092, 1113 (11th Cir. 2005) (noting that the trial court was under no obligation to hold a
Daubert hearing). Accordingly, the defendant’s request for a Daubert hearing is
DENIED.
ANALYSIS
The defendant seeks to exclude the plaintiff’s expert, Paul Norcia, from testifying
“regarding causation and whether a component [of the building] should be repaired or
replaced.” See Defendant’s Motion in Limine to Preclude Testimony of Plaintiff’s Expert
Witne[s]s Paul Norcia, or in the Alternative, Motion for Daubert Hearing and
Incorporated Memorandum of Law (DE# 58 at 2-3, 1/19/12). The defendant argues that
“Mr. Norcia is not qualified to testify competently regarding the matters he intends to
1
The defendant requested a Daubert hearing in its initial motion. The defendant
receded from this request in its reply brief. See Defendant’s Reply to Plaintiff’s
Response [D.E. 68] in Opposition to Defendant’s Motion in Limine Regarding Paul
Norcia [D.E. 58] (DE# 78 at 6, 2/13/12).
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address nor is the methodology by which he reaches his conclusions sufficiently reliable
under Daubert.” Id. at 3 (footnote omitted). The plaintiff argues that:
Mr. Norcia is qualified to offer expert opinion testimony about property
insurance loss valuation, based upon the knowledge, skill, training, and
education he has acquired over the past 26-plus years in the property
insurance industry. The methodology he followed to reach his opinions
and conclusions is sufficiently reliable, and is corroborated by insurance
estimators, appraisers and adjusters who work for QBE. Moreover, his
specialized knowledge will assist the trier of fact in understanding the
evidence and in determining . . . the replacement cost value and the
actual cash value of the Palm Bay Hurricane Wilma loss.
See Plaintiff’s Response and Incorporated Memorandum of Law in Opposition to
Defendant’s Motion in Limine Regarding Paul Norcia (DE# 68 at 4, 2/2/12).
“[The defendant] does not challenge Mr. Norcia’s designation as a cost expert.”
Defendant’s Reply to Plaintiff’s Response [D.E. 68] in Opposition to Defendant’s Motion
in Limine Regarding Paul Norcia [D.E. 58] (DE# 78 at 1, 2/13/12). Instead, the
defendant challenges Mr. Norcia’s qualifications and the methodology he employed in
determining that some of the building’s components were damaged by Hurricane Wilma
and that those components should be replaced instead of repaired. Id. According to the
defendants, “Mr. Norcia’s qualifications only allow him to testify as to the cost of
repairing damaged components, once the damages have already been determined by
another expert who is qualified to make that determination . . . .” Id. at 2.
1.
Opinions Concerning the Repair or Replacement of a Building Component
Mr. Norcia may testify as an expert concerning whether a building component
should be repaired or replaced. The undersigned finds that, with respect to the repair or
replacement of building components, Mr. Norcia satisfies all three requirements of
Daubert and Rule 702: qualification, reliability and assistance to the trier of fact.
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a.
Qualification
The first requirement for the admissibility of expert testimony is that the expert is
qualified to testify competently regarding the matters he or she intends to address. City
of Tuscaloosa v. Harcros Chems., Inc., 158 F.3d at 563. Rule 702 permits a person to
qualify as an expert based upon knowledge, skill, experience, training, or education.
Frazier, 387 F.3d at 1260-61. “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 Inv., Inc. v. XL Specialty
Ins. Co., No. 10-62028, 2012 WL 266422, at *6 (S.D. Fla. Jan. 30, 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 and weight, not admissibility.” Id. (citing Vision
I Homeowners Ass'n, Inc. v. Aspen Specialty Ins. Co., 674 F. Supp. 2d 1321, 1325
(S.D. Fla. 2009) (citations omitted) (internal quotation marks omitted; alteration in
original).
Here, the defendant argues that Mr. Norcia is unqualified to render an opinion
that a building component2 should be replaced instead of repaired because: (1) he
“admittedly does not have personal experience or qualifications in window repair,
design or installation;” (2) he is not a licensed roofer and “did not take any notes
2
The damaged building components at issue in the instant case are windows,
glass sliding doors, the heat, vent and air conditioning unit and the roof. See
Defendant’s Motion in Limine to Preclude Testimony of Plaintiff’s Expert Witne[s]s Paul
Norcia, or in the Alternative, Motion for Daubert Hearing and Incorporated
Memorandum of Law (DE# 58 at 2, 1/19/12).
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regarding the damages he observed to the roof and did not conduct a core sample to
support his opinions,” (3) he is not an air condition[ing] expert and “[he does not] know a
lot about cooling towers” and (4) he is not a general contractor and “has little to no
personal experience with roofs and windows.” Defendant’s Motion in Limine to Preclude
Testimony of Plaintiff’s Expert Witne[s]s Paul Norcia, or in the Alternative, Motion for
Daubert Hearing and Incorporated Memorandum of Law (DE# 58 at 5, 7, 1/19/12)
(alterations in original).
The undersigned finds that Mr. Norcia is qualified as an expert to opine on
whether a building component should be repaired or replaced based on his
background, training and experience in evaluating property insurance losses. For over
26 years, Mr. Norcia has worked in the property insurance business as an independent
insurance adjuster, a public insurance adjuster, a property valuation estimator and a
property valuation appraiser. “Mr. Norcia has adjusted, supervised, and/or managed
over 15,000 insurance losses during his career, including working large hurricane
claims.” Plaintiff’s Response and Incorporated Memorandum of Law in Opposition to
Defendant’s Motion in Limine Regarding Paul Norcia (DE# 68 at 6, 2/2/12). Determining
whether the damaged property should be repaired or replaced is subsumed in the
process of adjusting a claim. Mr. Norcia’s opinions on the repair and replacement of
building components are based on his experience in the insurance industry. The fact
that Mr. Norcia is unlicensed3 in the State of the Florida and has little to no personal
experience in replacing roofs, doors, windows or air conditioning units, to the extent this
3
See Defendant’s Reply to Plaintiff’s Response [D.E. 68] in Opposition to
Defendant’s Motion in Limine Regarding Paul Norcia [D.E. 58] (DE# 78 at 5, 2/13/12).
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is relevant, go to the weight the jury should assign to his testimony not his qualifications
as an expert.
b.
Reliability
The second admissibility requirement is reliability. Daubert, 509 U.S. at 589.
Reliability is different than believability or persuasiveness, which remains an issue for
the trier of fact. Rink v. Cheminova, Inc., 400 F.3d 1286, 1293 n. 7 (11th Cir. 2005). To
evaluate the reliability of scientific expert opinion, courts consider, to the extent
practicable: (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. 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. Frazier, 387
F.3d at 1261-62.
Here the defendant argues that Mr. Norcia’s methodology is unreliable because
he “did not engage in the type of ‘intellectual rigor’ that characterizes the practice of an
expert in the relevant field.” Defendant’s Motion in Limine to Preclude Testimony of
Plaintiff’s Expert Witne[s]s Paul Norcia, or in the Alternative, Motion for Daubert Hearing
and Incorporated Memorandum of Law (DE# 58 at 8, 1/19/12). The undersigned is
unpersuaded by this argument. As the plaintiff points out, the methodology employed
by Mr. Norcia in determining whether a building component required repair or
replacement “is exactly the same process by which QBE’s own adjusters evaluate a
property damage loss.” Plaintiff’s Response and Incorporated Memorandum of Law in
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Opposition to Defendant’s Motion in Limine Regarding Paul Norcia (DE# 68 at 9,
2/2/12).4 The alleged deficiencies in Mr. Norcia’s opinions are not grounds for excluding
him as an expert on whether a component of the subject building should be repaired or
replaced. “[T]he weaknesses in the underpinnings of the expert’s opinion go to its
weight rather than its admissibility.” Vision I Homeowners Ass’n v. Aspen Specialty, 674
F. Supp. 2d 1321, 1325 (S.D. Fla. 2009) (quoting Jones v. Otis Elevator Co., 861 F. 2d
655, 662 (11th Cir. 1988). The defendant is free to point out the perceived flaws in the
methodology employed by Mr. Norcia on cross-examination.
c.
Assistance to the Trier of Fact
The third requirement for admissibility is that the expert testimony must assist the
trier of fact. “[E]xpert testimony is admissible if it concerns matters that are beyond the
understanding of the average lay person . . . . Proffered 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.” Frazier, 387 F.3d at 1262-63. Mr. Norcia’s testimony
concerning the necessity of repairing or replacing building components is outside the
common knowledge of the average juror. As a result, expert testimony in this area
would assist the jury in deciding factual issues at trial. FED . R. EVID . 702.
4
In responding to this argument, the defendant states that its insurance
adjusters are licensed insurance adjusters in Florida whereas Mr. Norcia is not. See
Defendant’s Reply to Plaintiff’s Response [D.E. 68] in Opposition to Defendant’s Motion
in Limine Regarding Paul Norcia [D.E. 58] (DE# 78 at 2, 2/13/12). The defendant also
argues that “QBE has proffered engineers and contractors, all of whom possess more
expert education and training than Mr. Norcia, to opine as to causation of damages and
necessary repair.” Id. The defendant does not directly deny the plaintiff’s contention that
Mr. Norcia employed the same methodology as the defendant’s own insurance
adjusters.
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2.
Opinions Concerning Causation
The undersigned also concludes that Mr. Norcia is qualified to opine that the
damage to the structural components of the building was caused by Hurricane Wilma.
The plaintiff states that “Mr. Norcia’s vast experience in insurance matters has qualified
him to offer expert opinion testimony about property insurance loss valuation, which
includes . . . whether observed damage was caused by a wind event like a
hurricane.” Plaintiff’s Response and Incorporated Memorandum of Law in Opposition
to Defendant’s Motion in Limine Regarding Paul Norcia (DE# 68 at 8, 2/2/12) (emphasis
added). The undersigned agrees. Part of adjusting a claim is determining the cause of
the damage. As noted above, Mr. Norcia has considerable experience “adjust[ing],
supervis[ing], and/or manag[ing] over 15,000 insurance losses during his career,
including working large hurricane claims.” Plaintiff’s Response and Incorporated
Memorandum of Law in Opposition to Defendant’s Motion in Limine Regarding Paul
Norcia (DE# 68 at 6, 2/2/12). The methodology employed by Mr. Norcia in determining
causation is the same methodology used by QBE’s own adjusters. See Plaintiff’s
Response and Incorporated Memorandum of Law in Opposition to Defendant’s Motion
in Limine Regarding Paul Norcia (DE# 68 at 9, 2/2/12). The cause of damage to a
building component is also outside the common knowledge of the average juror and as
such, Mr. Norcia’s testimony would assist the trier of fact. Accordingly, Mr. Norcia may
opine at trial that the damage to the building components was caused by Hurricane
Wilma.
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CONCLUSION
For these reasons, the Defendant’s Motion in Limine to Preclude Testimony of
Plaintiff’s Expert Witne[s]s Paul Norcia, or in the Alternative, Motion for Daubert Hearing
and Incorporated Memorandum of Law (DE# 58, 1/19/12) is DENIED. Mr. Norcia may
testify as an expert at trial concerning the necessity of repairing or replacing the building
components and may opine that the cause of the damage to these components was
Hurricane Wilma.
DONE AND ORDERED, in Chambers, at Miami, Florida this 18th day of
April, 2012.
JOHN J. O’SULLIVAN
UNITED STATES MAGISTRATE JUDGE
Copies provided to:
United States District Judge Lenard
All counsel of record
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