AMW Sports, LLC et al

Filing 62

RULING granting 20 Motion in Limine to Exclude Plaintiffs' Expert Report and Expert Testimony. Signed by Magistrate Judge Stephen C. Riedlinger on 1/9/2012. (LSM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

AMW SPORTS, LLC D/B/A THE
ATHLETE’S FOOT

CIVIL ACTION

VERSUS

NUMBER 10-651-SCR

STATE FARM FIRE AND CASUALTY
COMPANY
RULING ON MOTION IN LIMINE
TO EXCLUDE PLAINTIFFS’ EXPERT REPORT AND TESTIMONY
Before the court is defendant State Farm’s Motion in Limine to
Exclude Plaintiffs’ Expert Report and Expert Testimony.
document number 20.

Record

The motion is opposed.1

The admissibility of expert evidence generally is governed by
Rule 702, Federal Rules of Evidence and the standards articulated
in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113
S.Ct. 2786 (1993).
proffered

witness

The district court must be assured that the
is

qualified

to

testify

by

virtue

“knowledge, skill, experience, training or education.”

of

his

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.
(5th Cir. 1999).

1

Wilson v. Woods, 163 F.3d 935, 937

The court should permit only reliable and

Record document number 27.
document number 53.

Defendant filed a reply.

Record

relevant expert testimony to be presented to the trier of fact.2
Rule 702 provides:
If scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the
evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience,
training, or education, may testify thereto in the form
of an opinion or otherwise, if (1) the testimony is based
upon sufficient facts or data, (2) the testimony is the
product of reliable principles and methods, and (3) the
witness has applied the principles and methods reliably
to the facts of the case.
Daubert set forth an illustrative, non-exhaustive list of
factors

that

may

be

considered

by

the

district

court

when

determining whether the expert testimony is sufficiently reliable.
These factors include whether the theory or technique that forms
the basis of the expert’s testimony: (1) can be or has been tested;
(2) has been subjected to peer review and publication; (3) has a
high known or potential rate of error and standards controlling its
operation, and (4) is generally accepted within the relevant
scientific or technical community.
500 (5th Cir. 2003).

Vargas v. Lee, 317 F.3d 498,

Whether Daubert’s specific factors are, or

are not, reasonable measures of reliability in a particular case is
a matter that the law gives the trial judge broad latitude to
determine.

Id.

Plaintiffs, the proponents of the expert evidence

at issue, have the burden of demonstrating that their expert is
qualified to testify in the field that he is offered and that his

2

Daubert, 509 U.S. at 589; 113 S.Ct. at 2795.
2

opinions are both reliable and relevant.
Plaintiffs seek to offer the expert testimony of Kermith
Sonnier.

Sonnier prepared a two-page report, dated June 17, 2011,3

and he was deposed on July 28, 2011.4

Rule 26(a)(2)(B)(1),

Fed.R.Civ.P., required Sonnier to include in his report, among
other things, “a complete statement of all opinions the witness
will express and the basis and reasons for them.”5

His report

includes one statement which may be an opinion and one that clearly
is an opinion. The possible opinion is: “it is important to review
all the facts and information submitted by Claimant,”6

The clear

opinion is: “I find the Proof of Loss that was submitted by
Claimant is correct in accordance with the policy of insurance and
should

be

timely

paid

by

State

Farm.”

In

their

opposition

memorandum the plaintiffs did not identify any particular opinions
from Sonnier’s report which they expect him to offer.

Rather, the

plaintiffs stated “Sonnier has and will opine on the manner in
which State Farm adjusted plaintiffs’ claim and whether, as a

3

Record document number 27-1, Exhibit A.

4

Record document numbers 20-3, Exhibit B, and 27-1, Exhibit
B (deposition excerpts).
5

Record document number 27-1, Exhibit A, p. 1.

6

According to Sonnier’s report, the Claimant is plaintiff
Abdallah Mizyed. Id. The court has already determined that none
of the individual plaintiffs, which includes Abdallah Mizyed, was
an insured under the State Farm policy. This error is not material
to the issue raised by the motion.
3

claims adjuster, he would have recommended that the claim be
paid.”7

But contrary to the plaintiffs’ statement of Sonnier’s

expected testimony, Sonnier explained during his deposition several times - that he was hired “to either show that it [the
claim] was reasonable to deny or not deny.”8
In the circumstances of this case, Sonnier is not qualified to
offer his opinions.

His first (possible) opinion does not require

any expert testimony at all – there is no apparent dispute that it
is important for an insurance adjuster to review all of the
information submitted by the claimant.
As to his second opinion, the methodology he used to support
it is fatally flawed.

Sonnier essentially reached his ultimate

opinion by ignoring the insured’s, i.e. plaintiff AMW Sports,
LLC’s, business records.

Sonnier simply concluded that the Proof

of Loss statement was sufficient.

Unlike the example cited by

Sonnier in his report (a tornado destroyed a home), there is no
basis to conclude that plaintiff AMW’s relevant business records
were destroyed during the alleged theft.

Indeed, the evidence

shows they were not.
During his deposition, Sonnier stated that he has had special
training regarding handling property loss claims, “And when it gets

7

Record document number 27, p. 8.

8

Record document numbers 20-3 and 27-1, Exhibit B, Sonnier
depo. pp. 24-25. This is the first time during the deposition that
Sonnier described what he was retained to do.
4

down

to

the

accountant.”9
this case.

accounting

parts,

we

always

send

them

to

an

But Sonnier did not work with an accounting firm in
Rather, he testified, “I just reviewed documents.”

When questioned about the methodology used to reach his ultimate
opinion in this case, Sonnier testified essentially that plaintiff
AMW did give the defendant different amounts two or three times on
the Proof of Loss, but he did not question why the amounts were
different.

When asked whether he should have, Sonnier explained:

“Because my job wasn’t to be asking him a lot of questions.
was to review this.”10

My job

His statement was not an offhand comment.

Sonnier was later questioned about whether he matched up the
invoices

and

receipts

with

the

allegedly

missing

items.

A.

He

No. I wasn’t asked to do all that.
My –- My job was to look at this here and see
how it would be handled if I was the claims
adjuster, what kind of things would I ask for,
what would I –- and if I thought State Farm
did the right thing or not do the right
thing.11

answered:

If it is not already apparent that Sonnier reached his
ultimate opinion essentially by just accepting the Proof of Loss,
Sonnier confirmed this in his response to a series of questions:
Q.

9

Okay. So that’s based on what the claimant told

Id. at 48.

10

Id. at 81-82.

11

Id. at 95-96.
5

A.

Q.
A.
A.

you, not necessarily what you verified through the
records; is that true?
That’s correct.
And plus, you had this here. You had backup here.
I was looking at it, if I was an adjuster, if I
would have looked at this here and that there, with
a Proof of Loss, what I would have done.
Then I would have started looking to compare
numbers.
Okay. But you would have –- as an adjuster, you
would compare numbers, but you didn’t do that –I wasn’t asked to do that here.
Q.
Okay.
I was –- I was asked to give my []12

Sonnier later again admitted that he did not go through all of
the documents submitted to State Farm, line by line, to determine
the amount of the loss.

He stated he could have done that, but

again stated, “I wasn’t asked to do that.”13
Plaintiffs

have

not

shown

that

Sonnier’s

methodology

is

generally accepted in the insurance industry to determine whether
to pay a substantial business or commercial loss claim when the
insured has invoices and receipts which can be compared to what is
listed in the Proof of Loss. Defendant has convincingly shown that
the methodology Sonnier actually used to reach his ultimate opinion
is fatally flawed in the circumstances of this case, because his
methodology

excluded

available information.

evaluation

of

significant

relevant

and

He essentially relied only on what was in

12

Id. at 97. The end of Sonnier’s answer would be on p. 98,
but that deposition page was not submitted by either the plaintiffs
nor the defendant.
13

Id. at 106.
6

the Proof of Loss even though the invoices and receipts were
available to compare with what was listed in the Proof of Loss.
Accordingly,

State

Farm’s

Motion

in

Limine

to

Exclude

Plaintiffs’ Expert Report and Expert Testimony is granted.
Baton Rouge, Louisiana, January 9, 2012.

STEPHEN C. RIEDLINGER
UNITED STATES MAGISTRATE JUDGE

7