CXA Corporation v. American Family Insurance Company
Filing
105
MEMORANDUM OPINION AND ORDER Signed by the Honorable Marvin E. Aspen on 11/21/2017: Plaintiff's and Defendant's second motions in limine are being referred to the Magistrate Judge. The Magistrate Judge shall conduct Daubert hearings on the admissibility of the challenged expert testimony, and then enter rulings on Plaintiff's second and Defendant's second motions in limine.Mailed notice(mad, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
CXA CORPORATION,
Plaintiff,
v.
AMERICAN FAMILY INSURANCE
COMPANY,
Defendant.
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No. 15 CV 11412
Hon. Marvin E. Aspen
MEMORANDUM OPINION AND ORDER
MARVIN E. ASPEN, District Judge:
Remaining before us are Plaintiff CXA Corporation’s second motion in limine and
Defendant American Family Insurance Company’s second motion in limine. (Dkt. Nos. 79, 86.)
We hereby refer these motions in limine to the Magistrate Judge pursuant to Federal Rule of
Civil Procedure 72(a) and 28 U.S.C. § 636(b). The Magistrate Judge shall conduct evidentiary
hearings as need be on the admissibility of the proposed expert testimony at issue and enter an
order ruling on Plaintiff’s and Defendant’s second motions in limine. See Kumho Tire Co.,
Ltd. v. Carmichael, 526 U.S. 137, 152, 119 S. Ct. 1167, 1176 (1999) (describing trial courts’
“discretionary authority” to “require appropriate proceedings” when an expert’s reliability is at
issue).
Both motions seek to limit testimony of proposed expert witnesses pursuant to Federal
Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579,
113 S. Ct. 2786 (1993). “The rubric for evaluating the admissibility of expert evidence considers
whether the expert was qualified, whether his methodology was scientifically reliable, and
whether the testimony would have assisted the trier of fact in understanding the evidence or in
determining the fact in issue.” Hartman v. EBSCO Indus., Inc., 758 F.3d 810, 817
(7th Cir. 2014). District courts have wide latitude in performing this gate-keeping function, and
the inquiry pursuant to Daubert and Rule 702 is “a flexible one.” Kumho Tire Co., Ltd. v.
Carmichael, 526 U.S. 137, 138, 119 S. Ct. 1167, 1170 (1999) (citing Daubert, 509 U.S. at 594,
113 S. Ct. at 2797).
In their second motion in limine, Plaintiff seeks to prevent Defense’s proposed expert
August Domel, a structural engineer, from offering his opinion as to whether alleged decay of
the roof was “hidden from view” or “known to an insured” and whether the collapse occurred
“abruptly.” (Dkt. No. 86 at 1.) We recognize Plaintiff’s concern that Domel’s testimony may
not qualify as sufficiently reliable because Domel appears to have not based his conclusion about
the causation of the collapse on “any reliable methodology,” nor has Domel explained how his
analysis is “testable or generally accepted in the field.” (Id. at 5.) Plaintiff’s correctly argues
that Domel’s expert testimony should be excluded if the Magistrate Judge finds his conclusions
are “connected to existing data only by the ipse dixit of the expert.” (Id. at 3.) Similarly,
Defendant’s motion seeks to exclude Plaintiff’s proposed expert Howard Mishne, an insurance
adjuster, from testifying about the circumstances of the roof collapse, including whether the
collapse was “abrupt,” if an insured would or should have been aware of the decay causing the
collapse, and if the roof collapsed all at once or in sections. (Dkt. Nos. 79 at 1, 81 at 1–4.)
Defendant argues such testimony is unreliable and outside of Mishne’s expertise.
(Dkt. Nos. 79 at 1, 81 at 1.) We request the Magistrate Judge conduct Daubert hearings or other
“appropriate proceedings” as need be to further explore the issues of admissibility of the
testimony of these proposed experts beyond the parties’ briefing. Kumho Tire, 526 U.S. at 152,
199 S. Ct. at 1176.
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CONCLUSION
Plaintiff’s and Defendant’s second motions in limine are hereby referred to the
Magistrate Judge. The Magistrate Judge shall conduct Daubert hearings on the admissibility of
the challenged expert testimony, and then enter rulings on Plaintiff’s second and Defendant’s
second motions in limine. It is so ordered.
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Marvin E. Aspen
United States District Judge
Dated: November 21, 2017
Chicago, Illinois
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