Shepherd v. Geovera Specialty Insurance Services, Inc.

Filing 86

ORDER AND REASONS granting in part 26 Motion to Exclude Expert Testimony of Dan Onofrey, granting in part 31 Motion to Strike Expert Witnesses Moran and Fischer; denying as MOOT 65 Motion in Limine. Defendant shall notify the Court within 15 days of this Order whether it intends to call Mr. Moran or Mr. Fischer at trial. Signed by Judge Jane Triche Milazzo on 3/9/2015. (ecm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

DERRICK SHEPHERD

CIVIL ACTION

VERSUS

NO: 14–862

GEOVERA SPECIALTY
INSURANCE SERVICES, INC.

SECTION: "H"(2)

ORDER AND REASONS
Before the Court are two Motions to Strike experts (Docs. 26, 31) and a
Motion in Limine (Doc. 65). For the following reasons, the Motions to Strike are
GRANTED IN PART, and the Motion in Limine is DENIED AS MOOT.
BACKGROUND
Plaintiff Derrick Shepherd brought this action in Louisiana state court to
recover the proceeds of a homeowners insurance policy issued to him by
Defendant GeoVera Specialty Insurance Company.

Plaintiff claims that

Defendant significantly undervalued the damage sustained by his home during
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Hurricane Isaac and that Defendant is liable for additional damages, penalties,
and attorney's fees under Louisiana law because its decision denying him
additional coverage was arbitrary and capricious. For its part, Defendant
asserts that Plaintiff was adequately compensated for his losses and that the
majority of the damages he claims were not caused by Hurricane Isaac but were
the result of unrepaired damage for which he had been previously compensated.
Additionally, Defendant seeks recession of the insurance policy based on its
allegation that Plaintiff intentionally misrepresented several material facts with
the intent to deceive Defendant.

The Court recently denied motions for

summary judgment filed by both parties.

Presently before the Court are

competing Motions to Strike Experts and a single Motion in Limine.
LAW AND ANALYSIS
There are three Motions presently before the Court. The Court will
address each in turn.
I. Defendant's Motion in Limine (Doc. 65)
Defendant moves the Court to exclude two of Plaintiff's exhibits. Plaintiff
has not filed an opposition to this Motion. After this Motion was filed, the Court
ordered the parties to submit comprehensive objections to exhibits and responses
thereto. The parties have complied with this order. The two exhibits that
Defendant seeks to exclude in this Motion are addressed in Defendant's
objections and Plaintiff's response thereto.

Thus, Plaintiff has presented

arguments related to the relief sought in this Motion, albeit in a different
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procedural posture. Because the relief sought in this Motion is fully briefed in
the objections and responses, the Court denies this Motion as moot. The Court
will address the admissibility of the two challenged exhibits when it rules on all
of the objections to exhibits.
II. Motion to Exclude Expert Testimony of Dan Onofrey (Doc. 26)
In this Motion, Defendant asks the Court to preclude Mr. Dan Onofrey,
one of Plaintiff's witnesses, from offering any expert opinions in this matter.
Defendant has no objection to Mr. Onofrey testifying as a fact witness but argues
that he should be precluded from offering expert testimony because his expert
report does not comply with Rule 26.
Federal Rule of Civil Procedure 26 requires that all retained experts
submit written reports that are prepared and signed by the witness. The Rule
specifically requires that the report contain all of the following information:
(i) a complete statement of all opinions the witness will
express and the basis and reasons for them;
(ii) the facts or data considered by the witness in
forming them;
(iii) any exhibits that will be used to summarize or
support them;
(iv) the witness's qualifications, including a list of all
publications authored in the previous 10 years;
(v) 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
(vi) a statement of the compensation to be paid for the
study and testimony in the case.
Mr. Onofrey has not prepared a formal expert report. Rather, he has
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prepared what appears to be a construction estimate. This document sets forth
a detailed estimate of the cost to perform certain construction work at Plaintiff's
home. It does not contain any statement of Mr. Onofrey's opinions, the basis of
those opinions, or the facts or data upon which the report is based. The estimate
has been supplemented by two documents: Mr. Onofrey's curriculum vitae and
a letter from Plaintiff's counsel. The letter reads, in full:
Please include the following paragraph at the beginning
of Mr. Daniel Onofrey's expert report in the above
matter which has previously been provided to you:
[Plaintiff's home] was reportedly damaged during the
passing of Hurricane Isaac.
Able Commercial
Contractors was retained to provide a wind damage
assessment of the subject building, specifically to
determine the extent of damage due to high winds and
subsequent water intrusion during the passing of
Hurricane Isaac. Mr. Daniel Onofrey performed a site
inspection on April 12, 2013 to evaluate visibly existing
conditions at the subject property. On this date Mr.
Onofrey interviewed the insured, Derrick Shepherd.
Mr. Onofrey used his knowledge and experience to
compute the attached itemization of damages as a
result of Hurricane Isaac.
The Court declines to consider the letter as part of Mr. Onofrey's report
because the letter was not prepared or signed by Mr. Onofrey, as required by
Rule 26. Additionally, even if the Court were to consider the letter, it does not
clearly set out what opinions, if any, Mr. Onofrey will offer in this matter.
Because the Court has not been presented with a report from Mr. Onofrey that
clearly articulates the opinions he will offer at trial, the Court concludes that Mr.
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Onofrey has failed to provide a report in compliance with Rule 26(a)(2)(B).
Plaintiff, however, contends that any deficiencies in Mr. Onofrey's report
were remedied when he clearly explained his opinions in his deposition. The
Court disagrees. An expert cannot remedy deficiencies in his report by clearly
articulating his opinions in a deposition.1 Indeed, if the Court were to permit an
expert who submits a deficient report to cure the deficiencies in his deposition,
the disclosure requirements of Rule 26 would be rendered meaningless.
Having concluded that Mr. Onofrey's report does not comply with Rule 26,
the remaining question is the appropriate remedy. Rule 37(c)(1) provides that
"If a party fails to . . . identify a witness as required by Rule 26(a) or (e), the
party is not allowed to use that . . . witness to supply evidence . . . at a trial,
unless the failure was substantially justified or is harmless." Thus, it would
appear that the appropriate remedy is to preclude Mr. Onofrey from testifying
as an expert. Nonetheless, this Court has considerable discretion to fashion an
appropriate remedy.2
In light of Mr. Onofrey's failure to submit a complete report, the Court will
limit his testimony at trial. Mr. Onofrey will be permitted to offer testimony
regarding the damage he observed at Plaintiff's home and the cost to repair that
damage as outlined in his estimate. Mr. Onofrey will not, however, be permitted
to offer any opinions regarding the cause of the damage because those opinions
1

Ciomber v. Coop. Plus, Inc., 527 F.3d 635, 642 (7th Cir. 2008); see also Sierra Club,
Lone Star Chapter v. Cedar Point Oil Co. Inc., 73 F.3d 546, 571 (5th Cir. 1996) (holding that
untimely supplement to expert report could not cure deficiencies in original report).
2

Sierra Club, 73 F.3d at 572.

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were not timely disclosed as required by Rule 26.
III. Motion to Strike Expert Witnesses Moran and Fischer (Doc. 31)
Plaintiff moves the Court to strike two of Defendant's expert witnesses
because their opinions are unreliable and, alternatively, cumulative.
The admissibility of expert testimony is governed by Federal Rule of
Evidence 702, which provides as follows:
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 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.3
The current version of Rule 702 reflects the Supreme Court's decisions in
Daubert v. Merrell Dow Pharmaceuticals4 and Kumho Tire Company v.
Carmichael.5

The threshold inquiry is whether the expert possesses the

requisite qualifications to render an opinion on a particular subject matter.6
Having defined the permissible scope of the expert's testimony, a court next
3

Fed. R. Evid. 702.

4

509 U.S. 579 (1993).

5

526 U.S. 137 (1999).

6

Wagoner v. Exxon Mobil Corp., 813 F.Supp.2d 771, 799 (E.D.La.2011); see also Wilson
v. Woods, 163 F.3d 935, 937 (5th Cir. 1999) ("A district court should refuse to allow an expert
witness to testify if it finds that the witness is not qualified to testify in a particular field or
on a given subject.").

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inquires whether the opinions are reliable and relevant.7 In undertaking this
tripartite analysis, courts must give proper deference to the traditional
adversary system and the role of the jury within that system.8 "Vigorous
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."9 As the "gatekeeper" of expert testimony,10 the trial
court enjoys broad discretion in determining admissibility.11
Both Mr. Moran and Mr. Fischer are civil engineers. They inspected the
roof of Plaintiff's home on May 23, 2013. Mr. Moran and Mr. Fischer were
retained by Plaintiff's then-insurer to evaluate a claim for hail damage.
Defendant intends to call Mr. Moran and Mr. Fischer in this suit to offer
opinions regarding the age and condition of Plaintiff's roof at the time of their
inspection. Plaintiff contends that Mr. Moran and Mr. Fischer should not be
permitted to testify at trial because their opinions are unreliable.
Plaintiff does not dispute that Mr. Moran and Mr. Fischer are qualified to
render expert opinions regarding the age of his roof. Indeed, both Mr. Moran
and Mr. Fischer are registered professional civil engineers with substantial
education and experience in their fields of expertise. As such, the Court has no
difficulty concluding that they are qualified to render opinions regarding the age
7

See United States v. Valencia, 600 F.3d 389, 424 (5th Cir. 2010).

8

See Daubert, 509 U.S. at 596.

9

Id.

10

Id. at 597.

11

Wellogix, Inc. v. Accenture, L.L.P., 716 F.3d 867, 881 (5th Cir. 2013).

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of Plaintiff's roof.
The opinions are also relevant. One of Defendant's defenses is that much
of the damage claimed by Plaintiff in this suit actually pre-existed Hurricane
Isaac. Plaintiff admits that he made a homeowner's claim in 2011 for roof
damage and that his then-insurer paid for a new roof at that time. Defendant
claims that Plaintiff never replaced his roof and that he is attempting, through
this litigation, to be paid to replace the same roof for a second time. Mr. Moran
and Mr. Fischer's opinions support Defendant's claim.

They opine that

Plaintiff's roof was between five and seven years old at the time of their
inspection. Thus, according to Defendant's experts, the roof was last replaced
sometime between 2006 and 2008, well before Plaintiff was compensated for a
new roof in 2011. Therefore, the opinions are relevant.
Much of Plaintiff's argument, however, is devoted to the third and final
step of the Court's Daubert analysis. Plaintiff argues that Mr. Moran and Mr.
Fischer's method for estimating the age of his roof is not generally accepted in
the scientific community and is thus unreliable. The Court is not convinced. Mr.
Moran and Mr. Fischer performed a detailed inspection of Plaintiff's roof. They
specifically observed the condition of the shingles and the amount of damage
apparent on the roof. Based upon this inspection, they were able to estimate the
age of the roof. This Court is not convinced that a detailed inspection is an
unreliable method of determining the age of a roof, nor has Plaintiff offered any
evidence to the contrary. Accordingly, the Court concludes that Mr. Moran and
Mr. Fischer's opinions are sufficiently reliable.
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Finally, Plaintiff argues that the opinions of Mr. Moran and Mr. Fischer
are indistinguishable and, therefore, cumulative. The Court agrees. Defendant
may call, at its option, either Mr. Moran or Mr. Fischer. Defendant shall notify
the Court of its decision within 15 days of this Order.
CONCLUSION
For the foregoing reasons, Defendant's Motion to Strike Mr. Onofrey is
GRANTED IN PART, Plaintiff's Motion to Strike Mr. Moran and Mr. Fischer is
GRANTED IN PART, and Defendant's Motion in Limine is DENIED AS MOOT.
Defendant shall notify the Court within 15 days of this Order whether it intends
to call Mr. Moran or Mr. Fischer at trial.
New Orleans, Louisiana, this 9th day of March, 2015.

___________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE

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