Lear v. Gulfstream Property and Casualty Insurance Company

Filing 13

RULING denying Motion to Exclude the Testimony of Plaintiffs'' Expert Tommy Tompkins. Signed by Chief Judge Shelly D. Dick on 2/1/2021. (EDC)

Case 3:18-cv-00255-SDD-RLB

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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

ALVIN ELTON CORLEY

CIVIL ACTION

VERSUS

17-535-SDD-RLB

GULFSTREAM PROPERTY
AND CASUALTY INSURANCE
COMPANY

RULING ON MOTION TO EXCLUDE THE TESTIMONY OF
PLAINTIFF’S EXPERT TOMMY TOMPKINS

Before the Court is the Motion to Exclude the Testimony of Plaintiffs’ Expert
Tommy Tompkins1 (“Motion”) filed by defendant Gulfstream Property and Casualty
Insurance Company (“Gulfstream” or “Defendant”).2 The Motion is opposed by Plaintiffs
in the consolidated cases (“Plaintiffs”).3 Gulfstream filed a Reply.4 The Court does not
require oral argument. The Court has carefully considered the law, the facts in the record,
and the arguments and submissions of the Parties, and, for the following reasons, the
Motion is denied.
I. BACKGROUND
The captioned matter, and those consolidated herewith for discovery purposes,5
are but a few of the thousands of cases filed as the result of property damages alleged to

1

Rec. Doc. 69.
The subject Motion and this Court’s instant Ruling applies to the matters consolidated for discovery
purposes with the captioned matter, See Rec. Doc. 4.
3
Rec. Doc. 70.
4
Rec. Doc. 73.
5
Rec. Doc. 4.
2

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have resulted from an epic rain event which caused widespread flooding in areas in Baton
Rouge and surrounding areas between August 13 and 15, 2016 (“Flood”).
Gulfstream moves to exclude opinion testimony from the Plaintiff’s loss expert
Tommy Tompkins (“Tompkins”). Gulfstream’s Motion is virtually identical to the Motion in
Limine filed by Allstate Insurance Company in cases which present common questions of
fact and law and which arise out of the Flood.6 Another division of this Court has recently
denied an identical Motion in Limine to exclude Tompkins.7 For similar reasons, this Court
reaches the same conclusion.
Gulfstream, like Allstate, argues that Tompkins is not qualified to render the
opinions he has given; that Tompkins’ opinions lack a sufficient foundation to render them
reliable; that Tompkins’ methodology fails to meet the Daubert8 standard; and that
Tompkins’ reports fail to satisfy the mandatory disclosure requirements proscribed by
Federal Rule of Civil Procedure 26(a)(2)(B). The Court adopts the well-reasoned opinion
of Judge deGravelles in Albert Anderson vs Allstate Insurance Company9 and offers the
following additional observations and rationale.
II. EXPERT QUALIFICATIONS
Gulfstream argues that Tompkins lack the credentials and qualifications to provide
expert opinions, pointing out, inter alia, that by education Tompkins holds a GED and that
he lacks skill, experience or training as plumber, contractor, electrician, engineer, or water
mitigation expert. The plain language of FRE 702 contemplates that an expert may be
qualified by “knowledge, skill, experience, training or education.” The Court finds that

6

See Civil Action 17cv00597-JWD-SJD, Rec Doc. 194.
See Civil Action 17cv00597-JWD-SJD, Rec Doc. 218.
8
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).
9
Civil Action 17cv00597-JWD-SJD, Rec. Doc. 218.
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Tompkins is qualified to render opinion testimony on loss adjustment by virtue of his
designation as a “NFIP Authorized Adjuster who maintains a Flood Control Number (FCN)
issued by the NFIP Bureau & Statistical Agent on behalf of FEMA,”10 19 years’ experience
adjusting residential property claims, including floods, his experience of handling
approximately 2500 claims as a field adjuster, and 1,500 claims as an inside desk
adjuster.11
III.

FOUNDATION OF OPINIONS AND METHODOLOGY
The gravamen of Gulfstream’s argument is that Tompkins’ opinions are unreliable

because his reports are cookie-cutter, and his opinions are not supported by site
inspections and fail to account for repairs that have been made. Notably, these cases are
set for bench trials. As such, the dangers of juror confusion are not present. The Court
can discern and credit evidence of repairs that have been made. Likewise, the Court can
evaluate the claim file materials relied upon by the insurer’s adjusters and Tompkins for
applicability and relevance to the loss in question.

This Court agrees with Judge

deGravelles’ well-reasoned finding that:
Experts are entitled to rely on information obtained from third parties
under Fed. R. Evid. 703 as long as it is “of a type reasonably relied upon
by experts in the particular field in forming opinions or inferences upon
the subject[.]” (Id. (quoting Fed. R. Evid. 703)(other citations omitted).12
* * *
Tompkins was not required to inspect the properties in order to give his
opinions and may base his opinions on the data found in Allstate’s claims
file and the original adjuster’s notes, measurements, photographs and
the like.13

10

Rec Doc. 70.
Id.
12
Civil Action 17cv00597-JWD-SJD, Rec. Doc. 218, p. 9.
13
Id. at p. 25.
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IV.

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REQUIREMENTS OF RULE 26(a)(2)
Piggy-backing on its argument that Tompkins’ opinions lack sufficient foundation

to render them reliable and that his methodology is inadequate, Gulfstream argues that
Tompkins fails to conform to the Rule 26(a)(2) requirement that his reports be “sufficiently
complete, detailed and in compliance with the Rules so that surprise is eliminated,
unnecessary depositions are avoided, and costs are reduced.”14 In a jury case, the
“weaknesses in his report and inconsistencies between his deposition testimony … and
his affidavit on this issue,” as noted by Judge deGravelles,15 may warrant a different
outcome, the Court finds that in the context of a bench trial, exclusion is not warranted.
V.

CONCLUSION
Accordingly, for the reasons assigned above, Gulfstream’s Motion in Limine16 is

DENIED.
IT IS SO ORDERED.
Baton Rouge, Louisiana, this 1st day of February, 2021.

S

________________________________
SHELLY D. DICK
CHIEF DISTRICT JUDGE
MIDDLE DISTRICT OF LOUISIANA

14

Rec. Doc. 69-1, pp. 18-19 (citations omitted).
Civil Action 17cv00597-JWD-SJD, Rec Doc 218, p. 31.
16
Rec. Doc. 69.
15

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