RD Properties of Metairie, LLC v. Scottsdale Insurance Company

Filing 43

ORDER denying 20 Motion in Limine; denying as moot 32 Motion to Strike. Signed by Judge Jay C. Zainey on 5/22/14. (jrc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
RD PROPERTIES OF METAIRIE, LLC

CIVIL ACTION

VERSUS

NO: 13-5520

SCOTTSDALE INSURANCE CO.

SECTION: "A" (4)

ORDER AND REASONS
The following motions are before the Court: Motion in Limine (Rec. Doc. 20)
and Motion to Strike Affidavit of Don Kotter (Rec. Doc. 32) filed by defendant
Scottsdale Insurance Co. Plaintiff RD Properties of Metairie, LLC opposes the motions. The
motions, submitted on May 21, 2014, are before the Court on the briefs without oral
argument.
Plaintiff has filed this lawsuit to recover for property damage sustained during
Hurricane Isaac to several apartment units located in Metairie, Louisiana. Plaintiff seeks
additional policy proceeds, statutory penalties, and attorney’s fees. (Rec. Doc. 1-3, Petition).
Scottsdale removed the suit on August 21, 2013, and moved to dismiss the case just one
week later. The Court denied that motion on September 25, 2013. (Rec. Doc. 6). On May 13,
2014, the Court denied Scottsdale's motion for partial summary judgment on the issue of
penalties. (Rec. Doc. 28). This matter is scheduled to be tried to a jury on June 30, 2013.
(Rec. Doc. 13).
Scottsdale now moves the Court to exclude Plaintiff's expert, Don Kotter. Scottsdale
argues inter alia that Kotter's report includes charges for unnecessary work and for repairs
not necessitated by hurricane damage. According to Scottsdale Kotter's opinions are simply
too unreliable and should be excluded.

1

Scottsdale's invocation of the Daubert1 reliability standard is unconvincing in light of
the challenges that Scottsdale is making. All of Scottsdale's complaints about Kotter's report
go to the weight of the evidence. If, as Scottsdale suggests, Kotter has used inflated numbers
and attributed repairs to the hurricane that are not causally related to a covered event, then
the trier of fact must reach that conclusion after careful consideration of all of the evidence.
If the trier of fact is persuaded by Scottsdale's contentions regarding the evidence then the
fact-finder will be free to give whatever weight to Kotter's testimony that the trier believes
appropriate under the circumstances. Regarding its relevance argument, Scottsdale's
reliance on rulings in other district court cases, without reference to the specific terms of its
own policy, is likewise unpersuasive.
Accordingly, and for the foregoing reasons;
IT IS ORDERED that the Motion in Limine (Rec. Doc. 20) filed by defendant
Scottsdale Insurance Co. is DENIED;
IT IS FURTHER ORDERED that the Motion to Strike Affidavit of Don
Kotter (Rec. Doc. 32) filed by defendant Scottsdale Insurance Co. is DENIED AS
MOOT.
May 22, 2014
JAY C. ZAINEY
UNITED STATES DISTRICT JUDGE

1

Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).

2