Greater Hall Temple Church of God v. Southern Mutual Church Insurance Company
ORDER granting 46 Motion to Strike the expert testimony of John Kern; granting 47 Motion to Strike the expert testimony of Shawn Brown; granting in part 63 Motion to Strike the Affidavit of Alfred Teston. Signed by Magistrate Judge Benjamin W. Cheesbro on 8/30/2019. (ca)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
GREATER HALL TEMPLE CHURCH OF
CIVIL ACTION NO.: 2:17-cv-111
SOUTHERN MUTUAL CHURCH
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.
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.
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.
Defendant’s motion for summary judgment appears as two separate docket entries. Docs. 43, 48.
It appears that Defendant refiled the same motion with additional attachments, so the Court cites to that
docket entry. Doc. 48.
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., Case 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.
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 RPanel 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.
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
Plaintiff does not indicate whether it intends this report as an expert report produced under Rule
26 of the Federal Rules of Civil Procedure. Plaintiff initially disclosed Kern as witness under Rule
26(a)(1) as an individual with “knowledge regarding the damages suffered by Plaintiff.” Doc. 46-3 at 3.
Plaintiff later produced Kern’s report which is dated May 2, 2017 and addressed to Pastor Lee, the
assistant pastor and minister of operations at Greater Hall. Docs. 46-4; 48-3 at 5–7. Because Defendant
has not challenged Kern’s disclosure as a witness and no party has put forward any other report authored
by Kern, the Court presumes Plaintiff intended to utilize this report as either an expert report under Rule
26(a)(2)(B) or an expert disclosure under Rule 26(a)(2)(C).
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,
Kern stated that, at the time of his deposition, he was in the process of designing a building with
an R-Panel roof because “[t]he client has insisted upon it[,]” over Kern’s objection. Doc. 46-2 at 23.
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., Case 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
During Kern’s deposition, defense counsel references Kern’s CV, which was evidently provided
to her. Doc. 46-2 at 5. However, this document was never filed with the Court.
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. PropertyOwners 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, 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., Case 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., Case 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 RPanel 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
Kern designs buildings to comply with the International Building Code, which provides wind
pressures each roof must tolerate, but Kern did not indicate this code is intended to address hurricane
force winds rather than milder, more typical, weather conditions. Doc. 46-2 at 13.
experience. See Doc. 46-4 at 4 (Kern opining, “These types of roofs are susceptible to screw and
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.
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
Flashing is the placement of roofing materials in such a way as to prevent water from seeping into
the interior of the building. Doc. 48-4 at 10–11.
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 did not have a leak until after Hurricane
Matthew. Id. at 18. Finally, Kern spoke to the pastor of the church who told him that there had
been no leaks at the building prior to the hurricane. Id. at 31.
It is unclear whether these photographs are one of the two sets provided to the Court. Alfred
Teston took one set of photographs and provided them to Greater Hall’s Pastor, Bobby Hall. Doc. 48-10
at 19–85. Kern stated later in his deposition that he reviewed this letter from Teston to Hall and color
photographs were attached to the letter. Doc. 46-2 at 18. Kern is unclear whether these are the 125
photographs he reviewed. The photographs taken by Teston number roughly that amount, but a date and
time stamp are provided under each of Teston’s photographs, unlike those Kern says he examined. Doc.
48-10 at 19–85. The second set are 76 photographs taken by an engineering firm retained by Defendant
and contained in that firm’s report. Doc. 48-4 at 18–55. Kern stated he reviewed this report in forming
his opinion, doc. 46-4 at 3, but the report contains considerably fewer photographs than Kern claims to
As to the basis of his opinions, during his deposition, Kern stated that he did not know
how much the roof had moved during the storm. Id. at 23. He further stated, “Nobody can
measure the movement. I’m not there during the hurricane.” Id. at 24. When asked how he
knew whether there was movement in the roof, Kern responded, “I’m an engineer. There was
movement.” Id. When asked how his opinion that wind “caused enough uplift pressure on the
R-Panel roof to result in the interior damage to the church” could be tested, Kern stated, “I’m not
sure you could.” Id. at 25. Further, when asked how his opinion that “the winds caused the
racking of the wood-frame structure sufficient to cause the interior damage to the church” could
be tested, Kern responded, “I don’t think you could do that either. My experience tells me that
wind issues, both uplift and racking, has issues with the screws. Just by my inspection on the
roof things were loose, caused the damage.” Id. However, he was not able to identify any screw
that he claimed had shifted so as to create a leak. Rather, he stated, “I’m not going to suggest to
you that you can even see a failure of an attachment screw. What happens is attachment screws,
any movement in the decking can cause a leak, even if you can’t see it.” Id. at 26.
Ultimately, Kern’s opinion is that wind racking and uplift caused a majority of damage to
the roof. Id. at 28, 30. He bases that opinion on his observations of undated photographs
showing multiple impacts to the roof and his belief that failed flashing alone would have
produced specific moisture at specific locations, not the extensive moisture to the interior of the
building which he observed. Id. In support of his claim of improper flashing installation, Kern
stated that there was a visible gap between the flashing and the wall of the church at multiple
points and that expansion foam had been improperly used as sealant at certain locations. Id. at
36–37. Kern’s claim that no leaks were present before the hurricane were drawn exclusively
from information provided by other individuals. Id. at 30–31. He stated that his opinion would
likely have been different if he had seen photographs of water damage preexisting the hurricane.
Id. at 19.
While numerical measurements and replicable tests are not necessarily required for nonscientific experience-based testimony, an expert must provide more than mere ipse dixit in
support of his opinion. Frazier, 387 F.3d at 1261–62. Stated alternatively, “[a] district court
cannot simply accept that an opinion is reliable because the expert says that his methodology is
sound.” United States v. Azmat, 805 F.3d 1018, 1042 (11th Cir. 2015) (citations omitted). The
proffering party must instead show that the expert’s theory can and has been tested, has been
subjected to peer review, has a known rate of error, is generally accepted in the expert’s
professional community, or is reliable through some other metric. Daubert, 509 U.S. at 593–94.
An expert can extrapolate to some degree based upon available data, “[b]ut nothing in Daubert or
the Federal Rules of Evidence requires a district court to admit opinion evidence that is
connected to existing data only by the ipse dixit of the expert. A court may conclude that there is
simply too great an analytical gap between the data and the opinion proffered.” Gen. Elec. Co. v.
Joiner, 522 U.S. 136, 146 (1997). “If admissibility could be established merely by the ipse dixit
of an admittedly qualified expert, the reliability prong would be, for all practical purposes,
subsumed by the qualification prong.” Frazier, 387 F.3d at 1261.
In this case, Kern’s methodology is not reliable. First, the data forming the basis for
Kern’s opinions is questionable. Kern relied largely on second-hand information, which was not
preserved or clearly identified, and his poorly documented visual inspection, which he conducted
six and a half months after the purported damage occurred. Specifically, Kern drew his opinion
that the church had no preexisting water damage from his conversation with the church’s pastor
and his review of a report prepared by Mr. Teston, who originally installed and later inspected
the roof. Doc. 46-2 at 18–19, 31. Kern also studied undated photographs showing impact marks
of unknown origin on the roof, as well as data, which he could not produce to Defendant, from
the National Weather Service for an area within 20 miles of the church. Doc. 46-2 at 20, 28. An
expert can rely on second-hand facts or information, but only where the information is of the
type reasonably relied on by experts in the field. See Banta Properties, Inc., 2011 WL 13096476,
at *3. Here, Plaintiff has failed to show that any expert in Kern’s field would reasonably rely on
undated photographs, statements by an interested party, unpreserved weather data, or a brief
visual inspection in forming an opinion.
More concerning is Kern’s explanation (or lack thereof) of the link between the data he
collected to his conclusion. Several times during his deposition, Kern stated that his opinion was
drawn from the fact that he is an expert and that he could not further elaborate on his reasoning
aside from his qualifications. Doc. 46-2 at 24–25. When asked how he knew the church roof
had moved, Kern rested squarely on his qualifications and responded, “I’m an engineer. There
was movement.” Id. at 24. Kern did not provide any meaningful basis for his opinion beyond
his qualifications. He did not provide any photographs or documentation of his physical
inspection of the church, nor did he measure movement in the roof or conduct any testing to
determine where the roof was leaking. Id. at 15–25. Kern did not examine any individual
screws in the roof or explain why he could not test individual screws for failure. Id. at 26.
Additionally, Kern does not discuss his methodology at any point in his two-page expert report.
Doc. 46-4. At no point in the record does Kern establish a methodology linking the data he
evaluated to his conclusion that Hurricane Matthew damaged the roof of Greater Hall. 8 This is
In its Response to Defendant’s Motion, Plaintiff notes that Kern climbed to the roofline in six or
eight places and was able to see the roof clearly from there. Doc. 55 at 3. This goes only to how Kern
collected the data providing the basis for his opinion, not to how that data actually supports Kern’s
opinion. Plaintiff’s Response is silent on this point.
not sufficient to merit admissibility under Daubert. See Frazier, 387 F.3d at 1261 (noting that
where a witness relies on experience in forming an opinion, the witness must link that experience
to their ultimate conclusion and explain how the experience is applicable to the case at bar). In
short, Plaintiff has failed to prove by a preponderance of the evidence that Kern employed a
reliable methodology in forming the opinion contained in his expert report.
Based upon Kern’s expressed rationale, the Court finds the methodology underlying
Kern’s opinion not sufficiently reliable to allow his opinion to be placed before a jury. Having
found that Kern is not qualified to tender expert testimony in this matter and that the
methodology underlying his opinions is not reliable, the Court GRANTS Defendant’s Motion to
Exclude Testimony of John Kern. Doc. 46. Kern is not permitted to tender expert testimony in
this case. 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.
Defendant also moves to exclude the expert testimony of Shawn Brown. Doc. 47.
Brown visited the church on four occasions after Hurricane Matthew in order to bid for the roof
repair contract and accompany subsequent insurance adjusters during their inspections. Doc. 473 at 19. Brown gave an initial estimate on December 5, 2016 of approximately $160,000 to
replace the church roof. Doc. 47-4 at 1. He subsequently prepared an expert report on
December 14, 2018 reflecting a repair estimate of approximately $250,000 and an opinion that
Hurricane Matthew damaged the church with “high winds and rain which occurred in October,
2016.” 9 Doc. 47-2 at 1. Defendant moves to exclude Brown’s opinion as to causation on the
grounds of his qualifications, his methodology, and his helpfulness. Doc. 47.
Brown stated that the $90,000 increase in his cost estimate was due to a dramatic increase in
material costs between the two estimates. Doc. 47-3 at 32.
Brown’s has a bachelor’s degree in education and a minor in construction engineering.
Doc. 47-3 at 4. Brown gained his first experience with roofing over a three-year period in 2002
when serving as an external project manager for Turner Construction. Id. at 5–6, 11. Brown
supervised subcontractors as they constructed a six-floor building for Southeast Georgia
Regional Medical Center. Id. at 5. However, Brown’s personal involvement in the roofing of
that building was limited to occasional supervision of the installation of the roof, 15 to 25
percent of which was metal. Id. at 12. Brown did not gain any substantial experience with
roofing until 2014, when he placed a metal roof on his mother’s home. Id. at 11. Two years
later, he began his own roofing business, and to date, has installed roughly 30 metal roofs, most
of which are on private homes, but three were on churches. Id. at 15. 10 These metal roofs are all
R-Panel roofs, like the roof at issue in this case, and aside from the relatively larger size of the
church roofs, Brown did not note any meaningful distinction between the church roofs and the
residential roofs he installed. Id.
Brown’s roofing knowledge is almost entirely self-taught and was drawn from observing
other roofers during his time at Turner Construction, watching various instructional videos
online, studying various books, and consulting with friends and colleagues with roofing
experience. Id. at 13. Brown is a licensed contractor in Glynn County, Georgia, but has never
given a deposition before. Id. at 18, 23. Brown has no educational background in evaluating
wind velocity or its impact on structures. Id. at 23–24. Moreover, Brown admits that he has no
practical experience in determining the effect of wind velocity on a metal roof. Id. at 38–39.
At the time of his deposition, Brown was preparing to install a metal roof on a fourth church.
Doc. 47-3 at 15.
Brown concedes that his original purpose in examining the church was to produce a cost estimate
for repairs, not to give an opinion as to what caused the damage to the church. Id. at 36.
Defendant argues Brown is not qualified to offer an expert opinion because he “admits he
has no experience or education that would enable him to determine how much wind it would take
to move a metal roof[.]” Doc. 47-1 at 10. Defendant further argues that his experience in
roofing is limited to the last five years and that he possesses no formal education in this area. Id.
In response to Defendant’s Motion, Plaintiff makes two points regarding Brown’s qualifications:
first, that Defendant has submitted copies of a report by an Andrew Mickley, doc. 48-4; doc. 489, who Plaintiff contends is less qualified than both Brown and Kern; and second, that “[a]nyone
who lived in Glynn County during October, 2016, had the opportunity to see that many roofs
were damaged in the hurricane that passed through the area during that time . . . It does not take
someone with an advanced educational degree to observe damage caused by wind.” Doc. 55 at
Here, Brown opines “that the work which [he] found to be necessary for repairs to the
church was caused by high winds and rain which occurred in October, 2016.” Doc. 47-2 at 1.
Brown must, therefore, show that he is be qualified “by knowledge, skill, training, or
education” to offer that opinion. Hendrix, 609 F.3d at 1193. Brown has installed more than 30
roofs of the type at issue in this case. Doc. 47-3 at 15. However, he conceded that he does not
have any experience or education in determining how much wind velocity is required to lift a
metal roof. Id. at 38. Brown has put forward evidence that he has experience installing R-Panel
roofs but has not put forward any evidence that he has experience determining the cause of
damage to those roofs. This lack of training or experience renders Brown unqualified to offer his
opinion to a jury that high winds and rain in October 2016 damaged the church roof. See
Coconut Key, 649 F. Supp. 2d at 1371 (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); cf. Grand Reserve of Columbus, 721 F. App’x at 888 (affirming a finding that
an expert was qualified to opine that a roof was damaged by hail where he had worked in that
field for 26 years, examined more than a thousand roofs and had assessed hail damage for other
insurance companies). The Court finds Brown’s limited roofing experience does not sufficiently
relate to the opinion he intends to offer to the jury, and he is, therefore, barred from offering that
opinion at trial.
Plaintiff’s counter arguments are unavailing. Plaintiff first points to the qualifications of
Andrew Mickley, who prepared an expert report for Defendant. Doc. 55 at 3–4. But the
requirements set forth by Daubert do not turn on the qualifications of another party’s purported
experts. If Plaintiff believed Mr. Mickley to be unqualified, it could have filed a Daubert motion
of its own within the deadline set by the Court. It cannot, however, lower the qualification
requirements for its own experts by pointing to Mr. Mickley. Plaintiff next asserts the wind
damage caused by Hurricane Matthew was observable to anyone in Glynn County at the time of
the storm. Id. at 2–3. However, that point says nothing about Brown’s ability to offer expert
opinion in this case regarding the durability of the church’s roof or the cause of any damage to
Because Plaintiff fails to put forward sufficient evidence indicating that Brown is
qualified to testify regarding the cause of the damage to the roof, Brown is not permitted to
tender expert testimony in this case. Brown’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.
Even if Brown were qualified to offer testimony regarding the cause of the damage to
Greater Hall’s roof, Plaintiff has not demonstrated Brown used a sufficiently reliable
methodology to reach his opinion.
Brown was first contacted by Bobby Hall, the pastor of Greater Hall, approximately three
weeks after Hurricane Matthew passed through Brunswick. Doc. 47-3 at 19. 11 Pastor Hall
requested that Brown inspect the church to find a leak. Id. When Brown arrived at the church,
Pastor Hall informed him that the roof had recently begun leaking. Id. at 24. Brown inspected
the church and then prepared his initial estimate on the repair cost a few weeks later on
December 5, 2016. Doc. 47-3 at 21; Doc. 47-4. Brown inspected the roof a second time when
an insurance representative visited the church. Doc. 47-3 at 27. 12 The representative did not feel
comfortable climbing onto the roof, so Brown climbed it and took photos at his request. Id.
Brown visited the church a third time with another Southern Mutual representative sometime
during the spring. Id. at 29. Brown visited the church a fourth and final time at an unknown date
to meet with a district representative from the Church. Id. at 30.
During his first inspection, Brown climbed onto the church roof and observed broken
screws and loose metal on the roof. Id. at 25. Brown stated he was able to lift up portions of the
In total, Brown visited the church four times, once with Pastor Hall, and once each with three
other individuals, including insurance representatives, who were examining the church for damage. Doc.
47-3 at 19. Brown was present with each of these individuals to ensure “they were on the same page[,]”
regarding where the roof was leaking. Id.
Brown states this inspection occurred during the winter, but he is unsure of the exact day or
month. Doc. 47-3 at 27.
roof and see the bottom portion of the screw intended to secure the roof in the wood while the
top portion of the screw was still in the metal of the roof. Id. Brown estimated that he found 15
to 20 screws in this condition. Id. Brown did not take any photographs of the roof during his
inspection because his purpose in examining the building was to identify the leak and provide an
estimate cost to fix it. Id. During his second inspection, Brown took photos at the request of an
insurance representative and also crawled into the church attic where he observed the trusses. Id.
at 27. He observed a “movement print” near multiple trusses, leading him to believe that they
had shifted. Id. at 27–28. He measured the movement of those trusses with a tape measure and
estimated that four or five trusses had shifted approximately two to five inches. Id. at 36–37. He
further observed that many of the nails securing the trusses to the platform they were installed
upon were bent at an angle. Id. at 28. Brown believed those trusses were installed when the
church was built around 1950. Id. at 38. Brown did not make any additional observations during
his third of fourth visits to the church. Id. at 29–30. Brown stated that, when walking through
the church on one of his inspections, he observed water damage to approximately three percent
of the walls. Id. at 30.
Brown did not review any other records or documents in forming his opinion on the
cause of the damage to the church. Id. at 19. Aside from his measurement of the trusses, Brown
did not obtain any other measurements of or conduct any kind of testing to the roof or trusses.
Id. at 38. Brown was unable to say if any of the water damage to the church predated Hurricane
Matthew and had not inspected the roof or trusses prior to the storm. Id. at 27–28, 30. Brown
stated his belief that rain and wind damaged the church was based on “common sense” and his
own observations of the strength of Hurricane Matthew, as he lived approximately six blocks
away from the church during the storm. Id. at 38–40. Brown did not obtain measurements for
the wind speed or rainfall during Hurricane Matthew. Id. at 40.
The Court does not find the methods Brown used to collect data and reach his
conclusions sufficiently reliable to enable him to offer expert testimony on the issue of causation.
Ultimately, Brown’s methodology and opinion are as follows: Brown personally observed
Hurricane Matthew; Greater Hall’s roof exhibited damage sometime after the storm; and a
“common sense” conclusion that the storm must have caused that damage. Id. at 39. This
approach is not sufficiently reliable under Daubert. Rider v. Sandoz Pharm. Corp., 295 F.3d
1194, 1202 (11th Cir. 2002) (“Courts are cautioned not to admit speculation, conjecture or
inference that cannot be supported by sound scientific principles.”).
Brown’s methodology in examining the church was limited to a physical examination
with some measurements of the church’s trusses. Doc. 47-3 at 25–27, 36–37. Brown had no
measurements of the wind speeds during Hurricane Matthew and had no independent knowledge
of the condition of the church or its roof prior to Hurricane Matthew. Id. at 24, 27, 40.
Moreover, Brown’s visual examination of the building, without any knowledge of the buildings
prior condition or knowledge of the wind speeds the building was subjected to, is not a
sufficiently reliable methodology to allow Brown to provide an expert opinion as to the cause of
the roof damage. Compare Coconut Key, 649 F. Supp. 2d at 1371 (expert’s methodology in
forming an opinion concerning the cause of roof damage was not reliable where expert did not
know wind speed in the area during the storm in question, had not ruled out alternative causes of
roof damage, and had no background in engineering) with Clena, 280 F.R.D. 653 at 664
(expert’s methodology in forming an opinion concerning the cause of roof damage was reliable
where a trained engineer reasoned that the damage had been caused by the second of two
hurricanes because if it had been preexisting, the roof would have been ripped off during the
second storm). Without a reliable methodology, a witness’s testimony should not be cloaked in
the imprimatur of expert testimony.
Because Brown is not qualified to opine that Hurricane Matthew caused the damage to
Greater Hall, and his methodology in reaching that same opinion is not reliable, I GRANT
Defendant’s Motion to Exclude Testimony of Shawn Brown. Doc. 47. Brown’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.
Defendant finally moves to strike the affidavit of Alfred Teston. Doc. 63. Teston is the
owner of Coastal Roofing Company and installed the roof at issue in this case onto Greater Hall.
Doc. 59-3. Plaintiff first identified Teston in its supplemental responses to Defendant’s
interrogatories. Doc. 67-3 at 1. 13 This response provided only Teston’s name, address, and
telephone number but did not provide any description of any possible testimony by Teston. Id.
Teston was not deposed. At some point, Defendant obtained a very brief letter sent from Teston
to Pastor Hall, stating “[D]ue to our inspection, the church did not leak until after Hurricane
Matthew.” Doc. 48-10 at 18. This letter was accompanied by photos of the church interior and
roof. Id. at 19–85.
Teston then gave a sworn affidavit on June 17, 2019, which Plaintiff produced in its
Response to Defendant’s Motion for Summary Judgment. Doc. 59-3. In this affidavit, Teston
states that he installed the roof at issue in this case onto Greater Hall and that the roof trusses
were in good condition when he installed the roof in 2015. Id. at 1–2. Teston then states that he
This response is not dated, but Defendant acknowledges that it was served at some point during
the discovery period. Doc. 67 at 2; Doc. 67-3.
inspected the roof at some point after Hurricane Matthew, and he observed that the roof had
shifted. Id. at 3. He states that “[t]he movement of the roof is consistent with being subjected to
high winds” and that he “could see many locations were wind had travelled under the metal
sheets, which caused many of the metal sheets to be bent and lifted up.” Id. He concludes that
“[a]ll of the damage he observed caused the roof leak.” Id.
Defendant contends Teston’s affidavit offers expert testimony. Doc. 63-1 at 3.
Defendant further contends that Plaintiff did not disclose Teston as an expert within the time
allotted by the Court in its May 21, 2018 Scheduling Order, which required Plaintiff to serve all
expert witness reports by December 14, 2018. Doc. 14. Defendant moves the Court to strike
Teston’s affidavit on the basis of this allegedly untimely disclosure. Id. at 1.
Plaintiff was Required to Disclose Teston as an Expert Witness
The Federal Rules of Civil Procedure create three classes of witnesses for purposes of
disclosure. The first are lay fact witnesses whom the proffering party must disclose along with a
brief description of that witness’s likely knowledge of the case. Fed. R. Civ. P. 26(a)(1)(A). The
second class of witnesses are those “retained or specially employed to provide expert testimony
in the case or one whose duties as the party’s employee regularly involve giving expert
testimony.” Fed. R. Civ. P. 26(a)(2)(B). These witnesses must prepare an extensive report
a complete statement of all opinions the witness will express and the basis
and reasons for them;
the facts or data considered by the witness in forming them;
any exhibits that will be used to summarize or support them;
the witness’s qualifications, including a list of all publications authored in
the ten previous years;
a list of all other cases in which, during the previous 4 years, the witness
testified as an expert at trial or by deposition; and
a statement of the compensation to be paid for the study and testimony in
Id. The third class of witness was created by the 2010 amendment to the Federal Rules and
includes expert witnesses who are not “retained or specially employed to provide expert
testimony in the case or one whose duties as the party’s employee regularly involve giving
expert testimony.” For these witnesses, the proffering party need only produce a disclosure
stating: (i) the subject matter on which the witness is expected to present evidence under Federal
Rule of Evidence 702, 703, or 705; and (ii) a summary of the facts and opinions to which the
witness is expected to testify. Fed. R. Civ. P. 26(a)(2)(C)
Whether Plaintiff properly disclosed Teston turns on which of the three categories of
witnesses he falls. In his affidavit, Teston states he installed the roof at issue in this case on to
the church in 2015. Doc. 59-3 at 1. He inspected the roof trusses at the time he installed the roof
and they appeared to be in good condition and properly aligned. Id. at 2. He states he inspected
the roof after Hurricane Matthew, and he noticed “that the entire roof had shifted” as well as
several other visible signs of damage before opining that the cause of that movement was
consistent with high winds. Id. He finally states that the movement in the roof was the cause of
roof leaks. Id. Some of this testimony, though not all of it, is expert testimony requiring the
disclosure of Teston as an expert witness within the time set by the Court.
Plaintiff suggests that Teston is not offering an expert opinion, stating that Teston “is not
serving in an expert capacity for the Plaintiff, although he does have decades of experience as a
roofer and is licensed as such.” Doc. 65 at 1. Many things contained in Teston’s affidavit are
permissible lay testimony. To the extent Teston wishes to recount his physical observations, he
is free to do so. However, opinions as to the cause of the damage to the roof and the source of
any subsequent leaks are expert testimony based upon “scientific, technical or specialized
knowledge” outside of the scope of a lay witness. Fed. R. Evid. 701(c). See e.g., Ware v.
Nationwide Ins. Co., Case No. 7:11-cv-4272, 2013 WL 1680514, at *4 (N.D. Ala. Apr. 12, 2013)
(“While a lay witness may be able to recognize and testify about whether a roof is damaged, such
a witness is not capable of reaching an informed conclusion about whether that damage arose
due to a product defect, poor workmanship, natural wear and tear, storm damage, or some other
cause.”); see also Nix v. State Farm Fire & Cas. Co., Inc., 444 F. App’x 388, 390 (11th Cir.
2011) (finding that witnesses could not offer lay testimony that a leak in a basement was due to a
burst water pipe rather than a design defect in the basement wall where the witnesses had not
observed the wall collapse or had personal knowledge about the construction of the home). 14
Because Teston seeks to offer an opinion as to the cause of structural damage to the church, that
opinion is outside the scope of his lay testimony.
Because the opinion contained in Teston’s affidavit is outside the scope of his
permissible lay testimony, Plaintiff should have identified him as an expert. In its Response to
Defendant’s Motion to Strike Teston’s affidavit, Plaintiff asserts that Teston “is more like a
treating physician rather than a witness who is serving in an expert witness capacity.” Doc. 65 at
1. This argument is misplaced. Treating physicians are subject to disclosure requirements when
they offer expert testimony, though whether they must produce an expert report or merely an
expert disclosure depends on the nature of that expert testimony. See, e.g., Rangel v. Anderson,
202 F. Supp. 3d 1361, 1365 (S.D. Ga. 2016) (discussing the impact of Rule 26 on the disclosure
The Court notes Teston’s opinions are of the same nature as the opinions offered by Kern and
Brown, who Plaintiff attempted to tender as experts. Doc. 55.
of treating physicians). As previously discussed, Plaintiff seeks to have Teston offer an expert
opinion. In this case, Plaintiff only provided the name and contact information of Teston to
Defendant, not any expert report or expert disclosure. Doc. 67-3. Thus, even were Teston
analogous to a treating physician, Plaintiff’s disclosure would be inadequate to meet the
requirements of Rule 26(a).
Teston’s Expert Opinions Should be Excluded
Because Teston should have been disclosed as an expert, the Court must now address
whether this failure to disclose merits the exclusion of Teston’s opinion testimony. The Federal
Rules require a court to strike the testimony of an improperly disclosed witness unless the failure
to disclose was “substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). “The burden for
establishing that a failure to disclose was substantially justified or harmless rests on the
nondisclosing party.” Leathers v. Pfizer, Inc., 233 F.R.D. 687, 697 (N.D. Ga. 2006). Courts
routinely weigh five factors when determining whether an insufficient disclosure is harmless:
(1) the surprise to the party against whom the evidence would be offered;
(2) the ability of that party to cure the surprise;
(3) the extent to which allowing the evidence would disrupt the trial;
(4) the importance of the evidence; and
(5) the nondisclosing party’s explanation for its failure to disclose the evidence.
See Rangel, 202 F. Supp. 3d at 1366 (citing Cambridge Univ. Press v. Becker, Case No. 1:08-cv1425, 2010 WL 6067575, at *3 (N.D. Ga. Sept. 21, 2010)); Southern States Rack & Fixture, Inc.
v. Sherwin-Williams Co., 318 F.3d 592, 597 (4th Cir. 2003) (setting forth the five-factor test).
Three of these five factors cut against a finding that Plaintiff’s failure to disclose Teston as an
expert was harmless.
First, Defendant can fairly claim surprise in response to the late disclosure of Teston’s
affidavit. Teston was disclosed as a lay witness, and Plaintiff informed Defendant in its
supplemental response to Defendant’s interrogatories that “Plaintiff is not aware of any such
inspections [of the church] other than inspections done by the property and casualty insurers of
the church and by the Defendant’s representatives following the subject loss, as well as John
Kern, whose records have been furnished.” Doc. 67-3 at 2. Defendant did, at some point, obtain
a copy of a letter from Teston to Pastor Hall reflecting his opinion that the church began leaking
after Hurricane Matthew. 15 Doc. 48-10 at 18. However, Plaintiff at no point signaled an
intention to rely on that opinion, and the letter itself provided very little insight into Teston’s
opinion. Accordingly, an affidavit by Teston indicating that he believes Hurricane Matthew
caused damage and movement to the church roof can fairly be taken as a surprise to Defendant.
As to the second factor, Defendant’s ability to adequately cure any surprise is limited.
Defendant’s ability to question Teston is curtailed by the fact that discovery has closed. Doc. 33.
Plaintiff was required to serve its expert witness reports by December 14, 2018, and the deadline
for discovery depositions of expert witnesses closed on April 30, 2019. Docs. 14, 33. Teston
provided his affidavit on June 17, 2019, and Plaintiff filed it a day later on June 18, 2019. Doc.
59-3. Plaintiff did not put forward Teston’s expert opinion until after not only the close of
discovery, but after Defendant filed a motion for summary judgment. Doc. 48. This case is
currently set for jury selection on March 24, 2020, and Defendant would not be able to cure any
surprise from this affidavit without the Court reopening discovery.
The fifth factor also cuts against a finding of harmlessness. Plaintiff has not provided an
explanation for its failure to disclose Teston as an expert witness within the allotted discovery
It is unclear when Defendant got this document or who produced it, though Plaintiff mentions that
Defendant served requests for production on Mr. Teston. Doc. 65 at 1.
time. Doc. 59-3. In its Response to Defendant’s Motion to Strike, Plaintiff notes that Teston’s
affidavit is intended to address the “suggestion” in Defendant’s motion for summary judgment
that “the movement of the roof trusses of the roof system at the church which was found by
Shawn Brown pre-dated the hurricane[.]” Id. However, Plaintiff does not explain why he did
not attempt to place this information into evidence prior to the close of discovery.
Plaintiff has not met its burden of establishing that its failure to disclose the opinion of
Teston within the time set by the Court was substantially justified or harmless. Defendant had
no indication that Plaintiff was intending to rely on Teston’s opinion and was not aware of
Teston’s full opinion until Plaintiff produced his affidavit. Doc. 67 at 2. Defendant’s ability to
cure this late disclosure is limited because discovery in this case has already closed. Doc. 33.
And Plaintiff has not stated why he did not timely produce Teston’s affidavit or an expert
disclosure. Plaintiff indicates that Teston’s affidavit is meant to rebut Defendant’s motion for
summary judgment, but Plaintiff was, nonetheless, required the meet the disclosure requirements
of Rule 26.
Although allowing Teston’s affidavit into evidence would likely not cause a substantial
disruption to trial and Teston’s opinion could be important to Plaintiff’s case, this is not enough
to overcome an otherwise unjustified and harmful failure to disclose an expert opinion. 16 See
Mitchell v. Ford Motor Co., 318 F. App’x 821, 824–25 (11th Cir. 2009) (affirming a district
court order excluding expert testimony leading to the dismissal of plaintiff’s case where the
expert’s disclosure was untimely without any reasonable explanation).
The Court notes that excusing Plaintiff’s late disclosure would not render Teston’s opinion
admissible. Plaintiff would still have to qualify Teston as an expert in order for his opinion to be placed
before a jury.
Because Teston was not timely disclosed as an expert and his affidavit attempts to offer
expert testimony, I GRANT in part Defendant’s Motion to Strike the Affidavit of Alfred
Teston. Teston’s affidavit is struck to the extent that it attempts to offer expert testimony on the
issue of causation. Teston’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
For the foregoing 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. Kern, Brown, and Teston are
prohibited from offering expert testimony as to the cause of the damage to the church’s roof, as
well as the cause of any water damage to the church. Testimony from Kern, Brown, and Teston
shall be limited to lay testimony permitted under Federal Rule of Evidence 701, and these
witnesses may not offer expert opinion testimony on the issue of causation.
SO ORDERED, this 30th day of August, 2019.
BENJAMIN W. CHEESBRO
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?