Koosman v. Liberty Mutual Fire Insurance Company

Filing 155

RULING and ORDER : Motion To Exclude Plaintiffs' Retained Expert, Tommy Tompkins,And Request For Hearing 138 Motion in Limine and Motion for Hearing is DENIED. Signed by Judge Brian A. Jackson on 3/3/2021. (ELW)

Case 3:17-cv-00183-BAJ-EWD

Document 155

03/03/21 Page 1 of 11

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

TEVIN KOOSMAN CIVIL ACTION

VERSUS
LIBERTY MUTUAL FIRE INSURANCE NO. 17-00183-BAJ-EWD

COMPANY

THIS ORDEM PERTAINS TO THE FOLLOWING CASES:
Gregory Alien Perkins, et al. v. Liberty Mutual Fire Insurance Company 3:17-cv-01228-BAJ-EWD
Jason Armstrong, et al. v. Liberty Mutual Fire Insurance Company 3:17-cv-Ol233-BAJ-EWD
Kristy Poynor, et al. u. Liberty M.utnal Fire Insurance Company 3:17-cv-01235-BAJ-EWD
Frederick T. Merritt, et al. v. Liberty Mutual Fire Insurance Company 3:17-cv-01253-BAJ-EWD
Danny Lee Fergnson, et al. v. Liberty Mutual Fire Insurance Company 3:17-cv-01262-BAJ-EWD
Becky Neal v. Liberty M-utual Fire Insurance Company 3:17-cv-01264-BAJ-EWD
Phillip James, Jr., et al. v. Liberty Mutual Fire Insurance Company 3:17-cv-01265-BAJ-EWD
Laura Bresee, et al. v. Liberty M'utua.l Fire Insurance Company 3:17-cv-01266"BAJ-EWD

Shelia. Smith v. Liberty Mutual Fire Insurance Company 3:17-cv-01303-BAJ-EWD
SheliaA. Landry v. Liberty M.utual Fire Insurance Company 3:l7-cv-01308-BAJ-EWD

Richard Jefferson v. Liberty Mutual Fire Insurance Company 3:17"cv-01310-BAJ-EWD
Cynthia Grant, et al. u. Liberty Mutual Fire Insurance Company 3:17-cv-01314-BAJ-EWD
Martha Louise Duvall v. Liberty Mutual Fire Insn,rance Company 3:17"cv-01477-BAJ-EWD
John Ampim, et al. v. Liberty Mutual Fire Insurance Company 3:17-cv-01496-BAJ-EWD
Laura. Barton v. Liberty Mutual Fire Insurance Company 3:17-cv-01497-BAJ-EWD

Paul Sike v. Liberty Mutual Fire Insurance Company 3:17-cv-01498-BAJ-EWD

RULING AND ORDER
Before the Court is Defendant Liberty Mutual Fire Insurance Company's
Motion To Exclude Plaintiffs' Retained Expert, Tommy Tompkins, And
Request For Hearing. (Doc. 138). The Motion is Opposed. (Doc. 145). Defendant
has filed a Reply Memorandum. (Doc. 147). The Court has carefully considered the
law, the facts in the record, and the arguments and submissions of the parties. For

the following reasons, the Motion is DENIED.

1

Case 3:17-cv-00183-BAJ-EWD

Document 155

03/03/21 Page 2 of 11

I. Facts
Between August 13 and 15, 2016, the Baton Rouge area suffered extensive

rainfall resulting in widespread flooding (hereinafter "Flood ). Hundreds of lawsuits
were filed by the owners of homes damaged in the Flood against insurers pursuant

to the National Flood Insurance Act of 1968 ("NFIA"). Certain cases were
consolidated for discovery purposes because the Court determined the cases
presented common questions of law and fact. (Doc. 21; Doc. 34). In these cases,

Plaintiffs seek to recover amounts claimed to be owed for losses caused by the Flood.
II. Legal Standard
Pursuant to Federal Rule of Evidence 702, "[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 the preconditions of the rule are met. Defendant's

Motion is a Rule 702 challenge based on Tompkins lack of qualifications and a
Daubert challenge based on the lack of an adequate factual foundation and his failure
to use an accepted methodology. See Danbert v. Merrell Dow Pharm., Inc.,

509 U.S. 579 (1993). Defendant also questions whether Tompkins report meets the
requirements of Federal Rule of Civil Procedure 26(a)(2)(B).
When Daubert is invoked, a district court may, but is not required to, hold a
hearing at which the proffered opinion may be challenged. Carlson v. Bioremedi
Therapeutic Sys., Inc., 822 F.3d 194, 201 (5th Cir. 2016). When no hearing is held,
however, "a district court must still perform its gatekeeping function by performing
some type of Daubert inquiry." Id. "At a minimum, a district court must create a

2

Case 3:17-cv-00183-BAJ-EWD

Document 155

03/03/21 Page 3 of 11

record of its Daubert inquiry and 'articulate its basis for admitting expert testimony/"
Id. (quoting Rodriguez v. Riddell Sports, Inc., 242 F.3d 567, 581 (5th Cir. 2001)).
The role of the trial court is to serve as the gatekeeper for expert testimony by
making the determination of whether the expert opinion is sufficiently reliable. As
the United States Court of Appeals for the Fifth Circuit has held:
[W]hen expert testimony is offered, the trial judge must perform a
screening function to ensure that the expert's opinion is reliable and
relevant to the facts at issue in the case. Daubert went on to make
"general observations" intended to guide a district court's evaluation of
scientific evidence. The nonexclusive list includes "whether [a theory or

technique] can be (and has been) tested," whether it has been subjected
to peer review and publication, the known or potential rate of error,"
and the existence and maintenance of standards controlling the
technique's operation, as well as general acceptance. The [Supreme]
Court summarized:

The inquiry envisioned by Rule 702 is, we emphasize, a flexible one. Its
overarching subject is the scientific validity and thus the evidentiary
relevance and reliability—of the principles that underlie a proposed
submission. The focus, of course, must be solely on principles and
methodology, not on the conclusions that they generate.

Watkins v. Telsmith, Inc., 121 F.3d 984, 988-89 (5th Cir. 1997) (internal citations
omitted).
The Supreme Court too has recognized that not all expert opinion testimony
can be measured by the same exact standard. Rather, the Daubert analysis is a
"flexible" one, and "the factors identified in Daubert may or may not be pertinent in
assessing reliability, depending on the nature of the issue, the expert's particular
expertise, and the subject of his testimony." Kumho Tire Co. v. Carmichael,

526 U.S. 137, 150 (cited with approval in Pipitone v. Biomatrix, Inc.,
288 F.3d 239, 244 (5th Cir. 2002)). Cases following Daubert have expanded on these

3

Case 3:17-cv-00183-BAJ-EWD

Document 155

03/03/21 Page 4 of 11

factors and explained that Daubert's listing is neither all-encompassing nor is every
factor required in every case. See, e.g,, Gen. Elec. Co. v. Joiner, 522 U.S. 136, 142

(1997); Guy v. Crown Equip. Corp., 394 F\3d 320, 325 (5th Cir. 2004). Indeed, courts
may look to other factors. Joiner, 522 U.S. at 146.

As this Court has explained:
The admissibility of expert testimony is governed by Federal Rule of
Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., which
provide that the court serves as a gatekeeper, ensuring all scientific

testimony is relevant and reliable. This gatekeeping role extends to all
expert testimony, whether scientific or not. Under Rule 702, the court
must consider three primary requirements in determining the

admissibility of expert testimony: 1) qualifications of the expert witness;
2) relevance of the testimony; and 3) reliability of the principles and
methodology upon which the testimony is based.
Fayard v. Tire Kingdom, Inc.^ No. 09-171, 2010 WL 3999011, at *1 (M.D. La.

Oct. 12, 2010) (internal citations omitted) (citing Kumho Tire Co., 526 U.S. at 147).
This Court has broad discretion in deciding whether to admit expert opinion
testimony. See, e.g., Joiner, 522 U.S. at 138-39 (appellate courts review a trial court's
decision to admit or exclude expert testimony under Danbert under the abuse of

discretion standard); Watkins, 121 F.3d at 988 (District courts enjoy wide latitude in
determining the admissibility of expert testimony. ); Hidden Oaks Ltd. v.
City of Austin, 138 F.3d 1036, 1050 (5th Cir. 1998) ("Trial courts have 'wide
discretion in deciding whether or not a particular witness qualifies as an expert
under the Federal Rules of Evidence.").

Notwithstanding Danbert, the Court remains cognizant that 'the rejection of
expert testimony is the exception and not the rule/" Johnson v.

4

Case 3:17-cv-00183-BAJ-EWD

Document 155

03/03/21 Page 5 of 11

Samsung Elecs. Am., Inc., 277 F.R.D. 161, 165 (E.D. La. 2011) (citing FED. R. EVID.
702 advisory committees note to 2000 amendments). Further, as explained in
Scordill v. Louisville Ladder Grp., L.L.C.:
The Court notes that its role as a gatekeeper does not replace the

traditional adversary system and the place of the jury within the system.
As the Daubert Court noted, {<[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. The Fifth Circuit has added that, in determining
the admissibility of expert testimony, a district court must defer to <<(the
jury s role as the proper arbiter of disputes between conflicting opinions.
As a general rule, questions relating to the bases and sources of an

expert s opinion affect the weight to be assigned that opinion rather than
its admissibility and should be left for the jury s consideration.
No. 02-2565, 2003 WL 22427981 at *3 (E.D. La. Oct. 24, 2003) CVance, J.) (internal
citations omitted) (relying on, among others, Rock v. Arkansas, 483 U.S. 44, 61 (1987),
and United States u. 14.38 Acres of Land, More or Less Sit. In Leflore County, Miss.,

80 F.3d 1074, 1077 (5th Cii\ 1996)).
As one Court of Appeals has stated, trial judges are gatekeepers, not armed

guards. 29 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure
6268.2 (2d ed. 1987) (citing Ruis-Troche v. Pepsi Cola of Puerto Rico Bottling Co.,
161 F.3d 77, 86 (1st Cir. 1998)); see a?so Gut/d v. Gen. Motors Corp.,
53 F. Supp. 2d 363 (W.D.N.Y. 1999) C([T]rial judges acting as gatekeepers under
[Daubert] must not assume 'the role of St. Peter at the gates of heaven, performing a
searching inquiry into the depth of an expert witness's souF and thereby usurp 'the

ageless role of the jury' in evaluating witness credibility and weight of the evidence.")
(quoting McCullock v. KB. Fuller Co., 61 F.3d 1038, 1045 (2d Cir. 1995)).

5

Case 3:17-cv-00183-BAJ-EWD

Document 155

03/03/21 Page 6 of 11

As the Court in General Electric Capital Business Asset Funding Corp. v.

S.A.S.E. Military Ltd., stated, Experts should be excluded only if their testimony is
so fundamentally unsupported that it cannot possibly help the factfind-er."
No. SA-03-CA-189-RF, 2004 WL 5495590, at *5 QV.D. Tex. Oct. 21, 2004) (citing
Viterbo v. Dow Chemical Co., 826 F.2d 420, 422 (5th Cir. 1987)); see also Trinity Mod.
Servs., L.L.C. v. Merge Healthcare Sols., Inc., No. 17-592, 2020 WL 1309892, at *7
(M.D. La. Mar. 19, 2020) (deGravelles, J.).

For purposes of the Daubert analysis here, it is also important to note that
these cases will be tried to the Court, not a jury. [S]ince Rule 702 is aimed at
protecting jurors from evidence that is unreliable for reasons they may have difficulty
understanding, in a bench trial there is greater discretion regarding procedure and

even the stringency of gatekeeping. 29 Victor J. Gold, Federal Practice & Procedure

§ 6270 (2ded. 2020).
In a bench trial, the principal reason for the Court's gatekeeping
function is not implicated, namely to guard against jury confusion which
may result from irrelevant and/or unreliable expert opinion testimony.

The purpose of the Court's gatekeeping function required by Daubert is
to ensure that only reliable and relevant expert testimony is presented

to the jury. Most of the safeguards provided for in Daubert are not as
essential in a case such as this where a district judge sits as the trier of
fact in place of a jury.
Hunters Run Gun Club, LLC v. Baker, No. 17-176, 2019 WL 2516876, at *1
CM.D. La. June 18, 2019) (Dick, J) (citations and quotations omitted);
see also Nassri v. Inland Dredging Co., No. 11-853, 2013 WL 256747, at *1
(M.D. La Jan. 23, 2013).

Stated another way, <([t]here is less need for the gatekeeper to keep the gate

Case 3:17-cv-00183-BAJ-EWD

Document 155

03/03/21 Page 7 of 11

when the gatekeeper is keeping the gate only for himself." United States v. Brown,

415 F.3d 1257, 1269 (llth Cir. 2005); see also Gibbs v. Gibbs, 210 F.3d 491, 500
(5th Cir. 2000) ("Most of the safeguards provided for in Daubert are not as essential
in a case such as this where a district judge sits as the trier of fact in place of a jury.")
III. Discussion
Defendant moves to exclude Plaintiffs' designated expert, Tommy Tompkins,

from testifying. (Doc. 138, p. 2). In a similar case arising out of the Flood,
Judge deGravelles issued a Ruling regarding an insurer s nearly identical motion to
exclude plaintiffs' expert, Tompkins. (No. 17-CV-01094-JWD-EWD, Doc. 117;

Doc. 125). Because Judge deGravelles fully addressed each argument Defendant
raises here, the Court adopts Judge deGravelles reasoning herein.
(No. 17-CV-01094-JWD-EWD, Doc. 125).

First, Defendant argues that Tompkins lacks the requisite experience to assist
the trier of fact as to damages, the causation of damages, as well as repairs."1

(Doc. 138-1, p. 2). Judge deGravelles concluded that Tompkins is sufficiently qualified
to testify as a flood claims adjuster because he has 19 years of experience as an

insurance adjuster of residential property for various types of losses, including flood,
wind, hail, and hurricane damages. (No. 17-CV-01094-JWD-EWD, Doc. 125,
p. 17-18). Tompkins has handled more than 1,500 insurance claims as an inside

desk adjuster, and 2,500 claims as an adjuster in the field. (Id. at p. 18). The fact

1 Judge deGraveIles addressed the argument that Tompldns "lacks the requisite expertise to
assist the trier of fact as to damages, the causation of damages, as well as repairs."

(No. 17-CV-01094-JWD-EWD, Doc. 125, p. 5 (addressing Tompldns' qualifications)).

Case 3:17-cv-00183-BAJ-EWD

Document 155

03/03/21 Page 8 of 11

that he has no hands-on experience in repairing homes or doing general contracting,

plumbing or electrical work does not disqualify him. (Id.}. Rather, the Court will
"leave to the [finder of fact] the extent of those qualifications." (Id. at p. 17).
Second, Defendant argues that Tompkins* 400 reports are virtually the same,
and consist ofboilerplate, generalized, formulate statements and opinions regarding

purported errors or deficiencies in the original adjuster's estimate, which Tompkins
admits do not apply to the specific case for which the report was generated.2
(Doc. 138-1, p. 4). Judge deGravelles determined that while [i]t is true that
Tompkins' failure to personally inspect each of the 400 or so properties involved
represents data presumably available to him which he did not consider," " this goes
to the weight, not admissibility of his testimony." (17-CV-01094-JWD-EWD, Doc. 125,
p. 23). Judge deGravelles recognized inconsistencies between Tompldns' reports,

deposition testimony, and affidavit, but found that these inconsistencies are not
grounds for excluding the testimony altogether. {Id. at p. 25). Rather, the
inconsistencies will undoubtedly be the subject of vigorous cross examination at trial
and may well have an impact on the credibility of this witness and the weight to be
given to his evidence." {Id. at p. 24-25).

Third, Defendant argues that Tompkins proposed testimony is not the product

2 Judge deGravelles addressed the argument that "Tompkins issued some 400 reports which
are 'virtually the same, and consist[ ] of boilerplate, generalized,, formulaic statements and
opinions regarding purported errors or deficiencies in the original adjuster s estimate which
([Tompldns] admits) do not apply to the specific case for which the report was generated/"
(No. 17-CV-01094-JWD-EWD, Doc. 125, p. 5 (addressing the sufficiency of foundation for
Tompkins opinions)).

Case 3:17-cv-00183-BAJ-EWD

Document 155

03/03/21 Page 9 of 11

of reliable principles or methods, and as demonstrated by his cookie-cutter reports,

Tompkins has not reliably applied any principles or methods to the facts of any one
case.3 (Doc. 138-1, p. 5). Judge deGravelles found that the alleged "cookie-cutter

styled reports including boilerplate language constitutes a matter of weight rather
than admissibility and may be explored by Defendant on cross-examination.
(17-CV-01094-JWD-EWD, Doc. 125, p. 32).
Fourth, Defendant argues that Tompkins' expert reports are woefully

incomplete and fall short of the mandatory disclosure requirements prescribed by
Federal Rule of Civil Procedure 26(a)(2)(B) because his reports do not quantify the
value of the alleged damages Plaintiff seeks in each individual case.4
(Doc. 138-1, p. 3, 5). Judge deGravelles stated: Tompldns affidavit explains that
each paragraph in a given report, although identical in language to that in other
reports, applies to that specific property." (17-CV-01094-JWD-EWD, Doc. 125, p. 33).

The reports are "sufficiently complete and clear to give adequate notice to [the
insurer] regarding [Tompkins] opinions as to a given property, the facts and data
upon which he relied, along with his qualifications, prior testimony and
compensation." {Id. (citing Nkansah v. Martines, No. 15-646, 2017 WL 2812733,at *8

3 Judge deGravelles addressed- the following argument: "Because Tompldns has submitted
cookie-cutter styled reports, including boilerplate language that may or may not apply to a
given property, there is no evidence that he has reliably applied the principles and methods
to the facts of each individual case." (No. 17-CV-01094-JWD-EWD, Doc. 125, p. 7 (addressing
Tompkins' methodology)).
4 Judge deGraveUes addressed the following argument: Because the report does not comply
with the completeness requirement of Rule 26(a)(2)(B)(i), Tompkins should not be permitted
to testify." (No. 17-CV-01094-JWD-EWD, Doc. 125, p. 7 (addressing the requirements of

Rule 26(a)(2)(B)).

Case 3:17-cv-00183-BAJ-EWD

Document 155

03/03/21 Page 10 of 11

(M.D. La. June 28, 2017) ("While the report is bare bones, to say the least, especially
when viewed together with her deposition and supplemental affidavit, the opinions
in the report can be ascertained. ); Am. Gen. Life Ins. Co. v. Russell, No. 16-851,

2019 WL 4411819, at *5 (M.D. La. Sept. 16, 2019) ("When the report is combined with
the deposition, it is clear that sufficient information has been provided regarding
Bacon's opinions, data relied upon and reasons supporting it. )). Ultimately,

Judge deGravelles concluded that:
While inconsistencies between his deposition testimony and his affidavit
are apparent and raise issues of credibility and competence, these are

matters which go to the weight of his testimony and can be developed
during his trial testimony, both on direct and cross examination. This is
especially true given the fact that the trial of this matter will be to the
bench.

(17-GV-01094-JWD-EWD, Doc. 125, p. 33).
While there are concerns regarding certain aspects of Tompkins testimony, in

the context of a bench trial, "the trial judge is in a unique position to hear the evidence
and decide whether to disregard it altogether or to just consider the criticisms of the
testimony as relevant to th-e weight the evidence is ultimately given. Schmidt v.

United States, No. A-18-CV-00088-DAE, 2019 WL 2090695, at *6 (W.D. Tex.
May 10, 2019). Accordingly, and for the reasons previously addressed by Judge
deGravelles in response to the insurer s virtually identical arguments, Defendant's
Motion is denied. (No. 17-CV-01094-JWD-EWD, Doc. 125).

10

Case 3:17-cv-00183-BAJ-EWD

Document 155

03/03/21 Page 11 of 11

IV. Conclusion

Accordingly,
IT IS ORDERED that Defendant Hartford Insurance Company of the
Midwest's IMotion To Exclude Plaintiffs' Retained Expert, Tommy Tompkins,
And Request For Hearing (Doc. 138) is DENIED.

Baton Rouge, Louisiana, this ^ "day of March, 2021

JUDGE BRIAN(,A. JACKSON
UNITED STATE^-WSTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

11