Seahorn Investments, L.L.C. v. Federal Insurance Company et al
Filing
283
MEMORANDUM OPINION AND ORDER Granting 217 Motion to Exclude Testimony of Frank Stuart, Granting in Part and Denying in Part 215 Motion to Exclude Testimony of Michael Gurtler, and Granting in Part and Denying in Part 219 Motion to Exclude Testimony of Richard Lyon. Signed by District Judge Halil S. Ozerden on September 10, 2015. (NM)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
SEAHORN INVESTMENTS, LLC
§
§
v.
§
§
FEDERAL INSURANCE COMPANY, §
MISSISSIPPI FARM BUREAU
§
CASUALTY INSURANCE
§
COMPANY, MAXUM INDEMNITY
§
COMPANY, STEADFAST
§
INSURANCE COMPANY, ALTERRA §
EXCESS & SURPLUS INSURANCE §
COMPANY
§
PLAINTIFF
CIVIL NO. 1:13CV320-HSO-RHW
DEFENDANTS
MEMORANDUM OPINION AND ORDER GRANTING MOTION TO
EXCLUDE TESTIMONY OF FRANK STUART [217], GRANTING IN PART
AND DENYING IN PART MOTION TO EXCLUDE TESTIMONY OF
MICHAEL GURTLER [215], AND GRANTING IN PART AND DENYING IN
PART MOTION TO EXCLUDE TESTIMONY OF RICHARD LYON [219]
BEFORE THE COURT are the Motion to Exclude Testimony of Michael
Gurtler [215], the Motion to Exclude Testimony of Frank Stuart [217], and the
Motion to Exclude Testimony of Richard Lyon [219], filed by Defendants Alterra
Excess & Surplus Insurance Company, Federal Insurance Company, Maxum
Indemnity Company, Mississippi Farm Bureau Casualty Insurance Company, and
Steadfast Insurance Company.1 These Motions are fully briefed. Having considered
the parties’ submissions, the record, relevant legal authorities, and the record of the
hearing held on August 31, 2015, the Court is of the opinion the Motion to Exclude
1
As of the date of this Memorandum Opinion and Order, Plaintiff has settled its claims
against Defendants Alterra Excess & Surplus Insurance Company, Federal Insurance Company,
Maxum Indemnity Company, and Steadfast Insurance Company, and these Motions [215] [217] [219]
remain pending only as to Mississippi Farm Bureau Casualty Insurance Company.
1
Testimony of Frank Stuart [217] should be granted, the Motion to Exclude
Testimony of Michael Gurtler [215] should be granted in part and denied in part,
and the Motion to Exclude Testimony of Richard Lyon [219] should be granted in
part and denied in part.
I. BACKGROUND
Plaintiff Seahorn Investments, LLC (“Seahorn”), owns Waverly Apartments,
which is a residential apartment community consisting of 16 separate residential
apartment buildings located at 100 Waverly Place, Bay St. Louis, Mississippi.
Compl. ¶¶ 3-4 [1]. Prior to August 29, 2012, Seahorn procured flood insurance
through Defendant Mississippi Farm Bureau Casualty Insurance Company
(“Mississippi Farm Bureau”). Compl. ¶ 5 [1]. Seahorn also secured a “Master
Primary Policy” with Defendant Federal Insurance Company insuring Seahorn
against “all risks of physical damage[,]” including flood damages. Compl. ¶ 6 [1].
Seahorn additionally obtained policies providing excess insurance coverage from
Defendants Alterra Excess & Surplus Insurance Company (“Alterra”), Maxum
Indemnity Company (“Maxum”), and Steadfast Insurance Company (“Steadfast”).2
Compl. ¶¶ 7-9 [1].
According to the Complaint [1], on August 29, 2012, Hurricane Isaac made
landfall in the State of Louisiana, and as the storm passed over land, it caused
severe flooding throughout Bay St. Louis, Mississippi, including at Waverly
2
At times, the Court will refer to Mississippi Farm Bureau, Federal, Alterra, Maxum, and
Steadfast collectively as “Defendants.”
2
Apartments. Compl. ¶ 11 [1]. Seahorn claims that as a result of “flooding and
associated damages caused by Hurricane Isaac[,]” the floor joists and sub-floor of
each of the 16 residential apartment buildings at Waverly Apartments have been so
damaged as to constitute a total loss. Id. at ¶ 13. Seahorn also contends that a City
of Bay St. Louis ordinance requires that each of the 16 structures at Waverly
Apartments be raised to comply with the City’s current Base Flood Elevation levels.
Id. at ¶¶ 15-16. After unsuccessfully seeking insurance coverage from Defendants,
Seahorn filed the Complaint in this case on August 7, 2013, asserting claims for
breach of contract and extracontractual damages based on Defendants’ alleged
refusal to tender all amounts due under each policy. Id. at ¶ 32.
A.
Plaintiff’s Expert Frank Stuart, P.E.
At some point in the months immediately following Hurricane Isaac’s landfall
on August 29, 2012, but prior to the Complaint [1] being filed on August 7, 2013,
one of Seahorn’s co-owners, Mike Seago (“Seago”), contacted Mr. Frank Stuart
(“Stuart”), President of Stuart Consulting Group (“SCG”), and asked Stuart to come
to Waverly Apartments and assess the damages caused by Hurricane Isaac. Dep. of
Frank Stuart (“Stuart Dep.”) 13:16-23 [217-7]; see also Ex. 5 to Mot. to Exclude
Test. of Frank Stuart [217-5]. Stuart and Joseph Rickett (“Rickett”), an engineer
employed by SCG, attended the meeting with Seago. Stuart Dep. 14:6-11 [217-7].
At that meeting, Seago asked Stuart and Rickett to determine if each of the
residential apartment buildings at Waverly Apartments were sound and to identify
3
the cause of the “differential settlement . . . in each of the buildings.”3 Id. at 15:2025. At this first meeting, Stuart observed what appeared to him to be differential
settlement on the first floor units and, upon entering the crawl space beneath “three
or four buildings,” Stuart noticed “deflections” in some of the trusses in the crawl
space. Id. at 15:18-16:10, 65:14-66:6, 187:14-18, 189:2-5. Stuart believed that the
deflected trusses were a potential cause of the differential settlement in the first
floor units he observed. Id. at 15:18-16:10, 65:14-66:6, 187:14-18, 189:2-5.
According to Stuart, he “made the determination very early on” that the problems
with the buildings at Waverly Apartments “had to be something . . . from the
subfloor down.” Id. at 53:3-19. After the meeting concluded, Stuart and Rickett
returned to the SCG offices, and while driving back, Stuart “explained to [Rickett]
what [Stuart] wanted [Rickett] to do[,]” Rickett “told [Stuart] what [Rickett]
thought needed to be done[,]” and the pair “made a course of action.” Id. at 18:7-13.4
On December 19, 2012, Rickett went to Waverly Apartments and measured
3
Stuart described “differential settlement” as occurring when “different points [of a slab] are
settling at . . . different rates.” Stuart Dep. 16:12-25 [217-7]. Although he referred to “a slab,” Stuart
clarified that the differential settlement he believed was occurring at Waverly Apartments was
occurring “above the foundation, but below the sub-floor” and further noted that “all the settlement
we’re talking about is occurring in the joists themselves, not the sub-floor and not below.” Id. at
16:24-25, 17:4-6.
4
Stuart recalled returning to Waverly Apartments “probably some months after that initial
meeting” when he “went back to look at some of the issues that [Rickett] had found on the floor joists
so [Stuart] could verify what [Rickett] was telling [him].” Stuart Dep. 18:14-19:3 [217-7]. Stuart did
not elaborate on how he verified the information Rickett was telling him, and other than this return
trip, Stuart could not recall returning to Waverly Apartments any other time. Id. at 19:1-3.
4
the deflection in joists beneath the apartment buildings.5 Id. at 189:2-13; 47:4-19.
Rickett obtained measurement readings using a micrometer which Stuart stated
did “not work[] out very well” because the micrometer did not produce accurate
readings. Id. at 46:7-47:19; Original Report dated Feb. 7, 2013 [217-1] (“Original
Report”). Stuart does not know whether Rickett took any photos during this
inspection. Stuart Dep. 67:25-68:3 [217-7].
After the inspection, Rickett prepared the February 7, 2013, Original Report,
which was later submitted in these proceedings as Stuart’s original expert report.
Id. at 29:13-19. The Original Report included a table from the readings Rickett
obtained. Id. at 46:7-47:8. Stuart stated that Rickett “did all the technical work”
underlying the Original Report. Id. at 28:7-12. After the Original Report was
drafted by Rickett, the Original Report “c[ame] to [Stuart], and then [Stuart] ma[de]
whatever changes, discuss[ed] with [Rickett] why [Rickett] said what he said. . . .
[Stuart and Rickett went] through [the Original Report]. . . . [Rickett] ma[de]
whatever changes that [Stuart] want[ed] in it, and then, . . . we issue[d] it.” Id. at
25:22-26:6; 29:13-25. Stuart was unaware of whether Rickett made any
assumptions regarding the City of Bay St. Louis’ inspection of Waverly Apartments
prior to issuing a certificate of occupancy after Hurricane Katrina. Id. at 32:21-
5
There is insufficient evidence in the record to indicate whether Stuart accompanied Rickett
to the Waverly Apartments for the December 19, 2012, inspection. Compare Stuart Dep. 67:6-10
[217-7] (responding in the affirmative when asked if he was present at the December 19, 2012,
inspection), with Stuart Dep. 101:25-102:3 [217-7] (stating that he did not know if he was present at
the December 19, 2012, inspection), and Stuart Dep. 189:2-13 [217-7] (indicating Stuart did not
accompany Rickett on the December 19, 2012, inspection).
5
33:4. Stuart agreed that he acted in the role of a “peer reviewer” with respect to the
Original Report. Id. at 26:7-12. According to Stuart, the Original Report was
merely intended to identify a problem as opposed to a cause of that problem:
Q.
A.
Do you think this first report, just your visual, complies with
reliable engineering standards?
When this report was put together, it was to tell him what we saw,
what we observed and what the problem was. It was not in any
attempt [sic] to go beyond that.
Id. at 191:23-192:4.
Nevertheless, the Original Report was produced by Seahorn to Defendants on
May 16, 2014, as the Rule 26(a)(2)(B) report of Seahorn’s expert designated for
establishing causation with respect to “structural damages . . . to the truss systems
of the buildings at the Waverly Apartments . . . sustained from Hurricane Isaac.”
Pl.’s Rule 26(a)(2) Initial Expert Disclosures 2 [215-2]; Notice of Service of Pl.’s
Initial Expert Disclosures Pursuant to Rule 26(a)(2) [72]. Despite the fact that
Rickett prepared the Original Report based on his own observations and readings,
that Stuart merely acted as the “peer reviewer” of the Original Report, and that
Stuart had not verified information in the Original Report, Stuart signed the
Original Report as its author. Original Report 3 [217-1]. Although listed in the
Original Report as information he reviewed, Stuart acknowledged in his deposition
that he did not review correspondence from the Bay St. Louis building inspector,
building permits from the City of Bay St. Louis, or email correspondence regarding
costs of repairs to Waverly Apartments. Stuart Dep. 34:11-22; 34:23-35:1, 35:5-14
[217-7]. The Original Report noted that “damage from Hurricane Katrina was
6
documented to be between 38.3% and 46.9% of the value of the units” and reasoned
that “the significant repairs necessary to the support systems due to Hurricane
Isaac damage will exceed the 50% threshold in Bay St. Louis [O]rdinance 521.”
Original Report 3 [217-1]. However, Stuart later admitted that he did not know
where Rickett obtained the percentages that he attributed to Hurricane Katrina
damages, and he simply assumed without verifying that Rickett was correct in
claiming that Bay St. Louis Ordinance 521 would be triggered. Stuart Dep. 106:7108:8 [217-7].
On February 19, 2015, Seahorn produced a Supplement to the Expert Report
of Frank M. Stuart [217-2] (“Supplemental Report”), which was dated February 6,
2015. Notice of Service [190]. The Supplemental Report was based on an
inspection of six randomly selected trusses in each of the buildings at Waverly
Apartments, with the exception of Building Eight, in which 12 trusses were
randomly selected. Stuart Dep. 54:23-55:5; 63:21-64:3 [217-7]. This inspection was
performed by Rickett and Chris Blazo (“Blazo”), another employee of SCG, on
December 12, 2014, and December 16, 2014. Id. at 59:15-18. According to Stuart,
Rickett and Blazo were sent back to Waverly Apartments because Rickett had
contacted the engineer who originally designed the trusses and received information
related to the “allowables . . . on the trusses for deformation[,]” and Stuart wanted
to “make sure that we really do have a problem or we really do[ not] have a
problem.” Id. at 59:19-60:8; 62:8-63:10. For each truss inspected, Rickett and Blazo
used a laser at the bottom chord where the support for each truss is located and
7
“shot” the laser down the truss and measured at points to determine whether each
truss exhibited deflection. Id. at 64:4-9. Stuart was not present on either December
12 or December 16 when these inspections were performed. Id. at 64:20-22. Rickett
prepared a chart of observations made after this inspection, and the chart is
included in the Supplemental Report. See Suppl. Report 3-6 [217-2]. Stuart’s
involvement with the Supplemental Report was to read through the report, meet
with Rickett and Blazo, discuss the findings, and make “a few corrections . . . .”
Stuart Dep. 64:23-65:5 [217-7]. Stuart acknowledges that the “actual engineering
work” related to the Supplemental Report was performed by Rickett. Id. at 65:6-8.
Stuart discussed the reasoning behind SCG’s decision to only test 15 percent
of the trusses at Waverly Apartments during the December 2014 inspection. See id.
at 177:1-181:7. Rickett randomly selected six trusses from each building except for
Building Eight, at which 12 trusses were selected. Id. at 178:3-5. Once Rickett
randomly selected six trusses in Building One, he tested those same randomly
selected trusses on each of the other 15 buildings, with the exception of Building
Eight. Id. at 178:6-11. SCG did not “do anything to weed out trusses that had
[prior] repairs made to them[,]” and Stuart acknowledged that some of the trusses
that previously underwent repairs were not successfully repaired. Id. at 183:11184:18. According to Stuart, randomly selecting six trusses in each building “was
as good as any” a method “to validate whether” the trusses in the floor framing
systems of each building “were bad or good.” Id. at 178:23-179:3. When asked what
8
would constitute “a meaningful sample size to test the floor framing system” of each
building, Stuart testified “[t]hat depends on what you[ are] after. We were not after
a statistical percentage of these, nor were we trying to find statistically something
that yielded a 99.5 or whatever percentage of accuracy. We simply wanted to see
whether the theory held out over these.” Id. at 179:4-11. Stuart did not know what
a “meaningful percentage” of trusses would be, and explained that SCG “did not go
after anything that was statistically accurate in this endeavor. We went after
something merely to see whether the theory held, and it did.” Id. at 180:14-18.
Stuart believes that SCG’s sample of 15 percent of the trusses under each of the
buildings “definitively supports” his conclusion that the deflection in the trusses
was caused by Hurricane Isaac. Id. at 181:5-7.
Defendants, including Mississippi Farm Bureau, filed their Motion to
Exclude Testimony of Frank Stuart [217] on April 30, 2015, asserting that the
Report was impermissibly “ghostwritten” by Rickett, and that Stuart is not aware of
the extent of the data upon which Rickett relied or how much significance Rickett
placed on various data. Mem. in Supp. of Mot. to Exclude Test. of Frank Stuart 912 [218]. Mississippi Farm Bureau also contends that the Report is based on
incorrect assumptions, unreliable information, and inaccurate calculations. Id. at
4-5, 12-14. According to Mississippi Farm Bureau, Stuart applies post hoc ergo
proper hoc reasoning to reach his conclusions. Id. at 14-18. Plaintiff responds that
Stuart actively participated in directing the investigation underlying the Original
9
Report and Supplemental Report and in the preparation of both Reports. Mem. in
Opp’n to Mot. to Exclude Test. of Frank Stuart 1-8 [248]. Plaintiff maintains that
the facts and data upon which Stuart relied, including the statistical sampling of
trusses, were reliable, and that Stuart did not apply post hoc ergo proper hoc
reasoning because Stuart “identified the potential causes for the Waverly
damages[,] systematically examined” those potential causes, “and ruled them out.”
Id. at 12-18.
B.
Plaintiff’s Expert Michael Gurtler
On May 16, 2014, Seahorn identified Michael Gurtler (“Gurter”) as an expert
in the area of construction “who will opine regarding the flood damages at the
Waverly Apartments caused by Hurricane Isaac.” See Initial Rule 26(a)(2) Expert
Disclosures 1 [215-2]; see also Mem. in Supp. of Opp’n to Mot. to Exclude Test. of
Michael Gurtler 8 n.27 [254]. Gurtler prepared a report dated February 22, 2013,
which summarized “numerous inspections of [Waverly Apartments] between August
29, 2012[,]” and February 22, 2013. Feb. 22, 2013, Report of Gurtler [215-3, 9 of
341]. As early as September 2, 2010, Gurtler had inspected the residential
buildings at Waverly Apartments and investigated moisture problems related to the
buildings. See id.; see generally Sept. 8, 2010, Gurtler Report [215-8].
Shortly after Hurricane Isaac’s August 29, 2012, landfall, Gurtler returned to
the Waverly Apartments on September 6, 2012, to “conduct[ an] inspection
specifically to determine what wind damages occurred at [Waverly Apartments]
during Hurricane Isaac.” Sept. 16, 2012, Gurtler Report [215-3, 71 of 341]. Gurtler
10
also conducted an inspection to evaluate the findings of Seahorn’s “flood insurance
adjuster,” and concluded from this inspection that “[f]lood waters entered all crawl
spaces and saturated the under floor framing systems[, s]ome of these framing
systems have failed[,] and water intrusion resulted in damage to bamboo and
ceramic flooring in some of the residential buildings.” Sept. 11, 2012, Gurtler
Report [215-4, 136-94 of 257].
Gurtler returned again on September 8, 2012, and performed a moisture
analysis by way of a thermal scan of the interior of the residential buildings one
through nine, which purportedly revealed that Waverly Apartments “incurred
significant moisture penetration and damages on the first and second floors, as a
result of Hurricane Isaac.” Sept. 13, 2012, Gurtler Report [215-3, 147-49 of 341].
Gurtler performed a similar moisture analysis on residential buildings ten through
sixteen on September 14, 2012, and reported that the “inspection revealed
numerous leaks throughout” the residential buildings, which incurred “significant
moisture penetration and damages on the first and second floors, as a result of
Hurricane Isaac.” Sept. 18, 2012, Gurtler Report [215-4, 59-135 of 257]. Gurtler
also appears to have prepared a September 24, 2012, report detailing
“supplementary on-site observations regarding flood damages” which contained
numerous pictures purporting to depict the uneven flooring in the residential
buildings and captioned with, among other information, the statement that “[t]he
floor framing system failed as a direct result of flood damage.” See generally Sept.
24, 2012, Gurtler Report [215-4, 1-56 of 257].
11
When he inspected the Waverly Apartments, Gurtler “did not do anything
under the [residential buildings at Waverly Apartments] to measure floor truss
deflection[,]” and Gurtler’s observation of deflection in the trusses was limited to
what he visually observed and felt as he walked through the residential buildings.
Dep. of Michael Gurtler (“Gurtler Dep.”) 225:6-10; 223:8-21 [215-5]. Gurtler relied
entirely on Stuart to measure deflection in the trusses beneath the residential
buildings. Id. at 223:23-224:17. In fact, Gurtler acknowledged that the
determination of the impact that flooding may have caused to the trusses was not
his area of expertise. Id. at 302:10-13. Nevertheless, Gurtler attributes truss
deflection as the cause of damages at the Waverly Apartments based on Stuart’s
reports and Gurtler’s visual inspection of the interior of the residential units. Id. at
296:10-297:4.
Seahorn notes that Gurtler is being offered as an expert in the area of
construction and has the following six opinions: (1) Mississippi Farm Bureau’s claim
adjuster performed an inadequate inspection of flood damages to the 16 residential
buildings at Waverly Apartments which prevented the adjuster from discovering
damage to the floor framing system; (2) because the floor truss system beneath each
of the 16 residential buildings at Waverly Apartments failed due to deflection of the
floor trusses outside of the allowed tolerances, the entire floor system will require
replacement; (3) the repairs to the floor truss system will require jacking of each of
the buildings; (4) the cost of performing the repairs necessitated by the failure of the
floor truss system is $5,883,261.00; (5) City of Bay St. Louis Ordinance 521 applies
12
and requires the demolition and reconstruction of all 16 residential buildings at
Waverly Apartments; and (6) the project will cost approximately $25,000,000.00.
See Mem. in Supp. of Opp’n to Mot. to Exclude Test. of Michael Gurtler 8 [254].
Defendants collectively filed their Motion to Exclude Testimony of Michael
Gurtler [215] on April 30, 2015. Mississippi Farm Bureau asserts that Gurtler’s
“opinions regarding the cause of floor [truss] deflection and interior floor damage
are not based upon ‘sufficient facts or data’ and are not the product of ‘reliable
principles or methods.’” Mem. in Supp. of Mot. to Exclude Test. of Michael Gurtler
6-7 [216]. According to Mississippi Farm Bureau, Gurtler’s causation opinions rely
on the fallacy of post hoc ergo propter hoc, the discredited investigation and opinion
of Stuart, and Gurtler’s own ipse dixit. Id. at 7-12. Mississippi Farm Bureau
further contends that the methodology underlying Gurtler’s damages estimate
opinions is unhelpful, misleading, and unreliable. Id. at 12-16.
C.
Plaintiff’s Expert Richard Lyon
On May 16, 2015, Seahorn designated Richard Lyon (“Lyon”), a public
adjuster, as “a construction and insurance restoration expert who will opine
regarding the scope of damages at the Waverly Apartments caused by Hurricane
Isaac.” Initial Rule 26(a)(2) Expert Disclosures 1 [215-2]. Gurtler, in addition to
inspecting the residential buildings at Waverly Apartments, supplied Lyon with
information regarding the scope of damages Gurtler claimed to observe at the
apartments so that Lyon could generate an estimate of Seahorn’s damages. Gurtler
Dep. 38:15-39:11 [215-5]. According to Gurtler, he did not hire Lyon as a public
13
adjuster but rather as an “estimator,” and this distinction meant that Lyon was
retained by Gurtler to receive damages information from Gurtler and prepare a
damages estimate based only on the information provided by Gurtler. Id. at 39:1217; Dep. of Richard Lyon (“Lyon Dep.”) 72:3-25 [219-3]. Lyon confirmed that he did
not “make any decisions at all as to what needed to be replaced and what did not
need to be replaced[,]” and that he “was simply asked to estimate the damages as
dictated by Michael Gurtler.” Lyon Dep. 72:19-73:7 [219-3]. Gurtler supplied Lyon
with the information in each of Gurtler’s reports, had Lyon “take dimensions” on
the property at Waverly Apartments, and “generate an estimate for repairs.”
Gurtler Dep. 39:23-40:8 [215-5]. In preparing an estimate for repairs to the interior
flooring, Gurtler acknowledges that he instructed Lyon to “gut everything four feet
up.” Id. at 40:9-41:12. Gurtler explained that he based this determination on his
opinion that the flooring needed to be replaced, which necessitated damages to the
interior and exterior walls as the flooring was removed from beneath those walls.
Id. Gurtler admitted that he made no determination as to whether the Standard
Flood Insurance Policy would cover such repairs. Id. at 41:13-17.
Defendants collectively filed a Motion to Exclude Testimony of Richard Lyon
[219], seeking Lyon’s exclusion on grounds that his opinions are unreliable and not
the subject of any “expert adjusting work.” Mem. in Supp of Mot. to Exclude Test.
of Richard Lyon 6 [220]. Mississippi Farm Bureau contends that Lyon’s opinions
are unreliable and irrelevant because he has no knowledge of the accuracy of the
data underlying his opinions. Id. at 7. Mississippi Farm Bureau concludes that
14
Lyon’s proffered expert testimony should be excluded because Lyon “did not do any
expert work” and simply input Gurtler’s damage assessments “into a software
program.” Id. at 8-9.
II. DISCUSSION
A.
Legal Standard
“Preliminary questions concerning the qualification of a person to be a
witness, the existence of a privilege, or the admissibility of evidence shall be
determined by the court . . . .” Fed. R. Evid. 104(a). “Before certifying an expert
and admitting his testimony, a district court must ensure that the requirements of
Federal Rule of Evidence 702 have been met.” Roman v. Western Mfg., Inc., 691
F.3d 686, 692 (5th Cir. 2012) (citations omitted). “The party offering the expert
must prove by a preponderance of the evidence that the proffered testimony
satisfies the Rule 702 test.” Mathis v. Exxon Corp., 302 F.3d 448, 459-60 (5th Cir.
2002) (citing Bourjaily v. United States, 483 U.S. 171, 173 (1987)). Rule 702
provides
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.
Fed. R. Evid. 702.
15
The Court functions as a gatekeeper to ensure that an expert is properly
qualified and that his testimony is both reliable and relevant. Curtis v. M&S
Petroleum, Inc., 174 F.3d 661, 668 (5th Cir. 1999) (relying on Daubert v. Merrell
Dow Pharm., Inc., 509 U.S. 579, 590-93 (1993)); see United States v. McMillan, 600
F.3d 434, 456 (5th Cir. 2010); see also Smith v. Goodyear Tire & Rubber Co., 495
F.3d 224, 227 (5th Cir. 2007) (citation omitted). Expert testimony is relevant when
it relates to any issue in the case. Daubert, 509 U.S. at 591. Reliability is
determined by assessing “whether the reasoning or methodology underlying the
testimony is scientifically valid.” Id. at 592-93.
“[T]he proponent of expert testimony . . . has the burden of showing that the
testimony is reliable[] . . . and must establish the admissibility requirements by a
preponderance of the evidence . . . .” Previto v. Ryobi N. Am., Inc., 766 F. Supp. 2d
759, 765 (S.D. Miss. 2010) (citations and internal marks omitted). An expert
opinion is deemed reliable if it is based upon sufficient facts and data, and it is the
product of reliable principles and methods. Fed. R. Evid. 702(b) and (c). Otherwise,
it constitutes “‘unsupported speculation or subjective belief.’” Johnson v. Arkema,
Inc., 685 F.3d 452, 459 (5th Cir. 2012) (quoting Daubert, 509 U.S. at 590). “The
court should ‘make certain that an expert, whether basing testimony upon
professional studies or personal experiences, employs in the courtroom the same
level of intellectual rigor that characterizes the practice of an expert in the relevant
field.’” Hodges v. Mack Trucks, Inc., 474 F.3d 188, 194 (5th Cir. 2006) (quoting
16
Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152 (1999)). Daubert “provides
an illustrative list of factors that may aid a court in evaluating reliability.” Mathis,
302 F.3d at 460. These factors include
(1) whether the theory or technique has been tested; (2) whether the
theory or technique has been subjected to peer review and publication; (3)
the known or potential rate of error of the method used and the existence
and maintenance of standards controlling the technique’s operation; and
(4) whether the theory or method has been generally accepted in the
scientific community.
Kumho, 526 U.S. at 149-50 (citing Daubert, 509 U.S. at 592-94). “These factors are
not mandatory or exclusive; the district court must decide whether the factors
discussed in Daubert are appropriate, use them as a starting point, and then
ascertain if other factors should be considered.” Hathaway v. Bazany, 507 F.3d 312,
318 (5th Cir. 2007). “But the existence of sufficient facts and a reliable methodology
is in all instances mandatory.” Id. “[W]ithout more than credentials and a
subjective opinion, an expert’s testimony that ‘it is so’ is not admissible.” Previto,
766 F. Supp. 2d at 771 (quoting Hathaway, 507 F.3d at 318 (internal marks
omitted)).
In addition to mandating the disclosure of the identities of witnesses a party
may use to present expert testimony, Federal Rule of Civil Procedure 26(a) requires
that
this disclosure must be accompanied by a written report--prepared and
signed by the witness--if the witness is one retained or specially employed
to provide expert testimony in the case . . . . The report must contain:
(i)
a complete statement of all opinions the witness will express
and the basis and reasons for them;
17
(ii)
(iii)
(iv)
(v)
(vi)
the facts or data considered by the witness in forming them;
any exhibits that will be used to summarize or support
them;
the witness’s qualifications, including a list of all
publications authored in the previous 10 years;
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
a statement of the compensation to be paid for the study
and testimony in the case.
Fed. R. Civ. P. 26(a)(2)(B). “The purpose of supplementary disclosures is just
that
to supplement. Such disclosures are not intended to provide an extension of
the expert designation and report production deadline.” Metro Ford Truck Sales,
Inc. v. Ford Motor Co., 145 F.3d 320, 324 (5th Cir. 1998).
B.
Stuart Should Be Excluded From Testifying
1.
Seahorn’s Rule 26(a) Expert Disclosure of Stuart was Insufficient
The Court finds that neither Stuart’s Original Report nor the Supplemental
Report comply with expert disclosure requirements set forth in Rule 26(a)(2)(B). As
a threshold matter, the record supports the conclusion that the Original Report,
notwithstanding the fact that Stuart signed it as his own, was “ghost written” by
Rickett. “Ghost writing a testifying expert’s report is the preparation of the
substance writing of the report by someone other than the expert purporting to have
written it.” Trigon Ins. Co. v. United States, 204 F.R.D. 277, 291 (E.D. Va. 2001).
“To prove ghost writing, [Mississippi Farm Bureau] must use the available
documents to show that [Rickett] provided the substance of the opinions of the
testifying expert[, Stuart], not just editorial assistance.” Id. at 295.
18
Seahorn relies upon Estate of Lafarge ex rel. Blizzard v. Kyker, No. 1:08cv185,
2011 WL 6151595, at *6 (N.D. Miss. Dec. 12, 2011), to contend that Mississippi
Farm Bureau has not met its burden on this issue. The pertinent facts in Estate of
Lafarge, however, are distinguishable in that the attorney who had retained the
expert and allegedly drafted the expert’s report had instead merely provided to the
expert, for the expert’s review and signature, an amended version of text which the
expert had earlier submitted to the attorney. 2011 WL 6151595, at *7. In finding
that the expert’s report was not “ghost written” by the attorney, the United States
District Court for the Northern District of Mississippi relied in part on the Advisory
Committee Note pertaining to Rule 26, which provides that “Rule 26(a)(2)(B) does
not preclude counsel from providing assistance to experts in preparing the reports . .
. . Nevertheless, the report, which is intended to set forth the substance of the direct
examination, should be written in a manner that reflects the testimony to be given
by the witness . . . .” Id.
Here, the record makes clear that Rickett not only prepared the draft of the
Original Report for Stuart’s review and edit, but there is no dispute that Rickett
provided the actual substantive content and engineering calculations central to the
conclusions in the Original Report. See Stuart Dep. 25:22-26:6, 28:7-12, 29:13-25
[217-7] (Original Report). Unlike the facts in Estate of Lafarge, this is not a case of
an attorney providing editing assistance to a retained expert.6 Nor is this a case
6
While the parties have not addressed the precise question of what impact, if any, Rickett’s
signature on the Supplemental Report would have on the “ghost writing” issue, the Court is of the
19
where the report “set[s] forth the substance of the [expert’s] direct examination” or
where the report has been “written in a manner that reflects the testimony to be
given by the witness . . . .” Rule 26, Advisory Committee Notes; see also Stuart Dep.
72:17-73:3, 78:24-79:7, 80:3-19, 93:16-94:8, 106:7-18, 107:12-108:8, 110:11-19,
132:4-8, 172:17-176:6 [217-7]. If anything, the record reveals that it was actually
Stuart, the disclosed expert, who provided editorial assistance to Rickett, the
undisclosed structural engineer, who prepared and wrote the Original Report.
Stuart Dep. 25:22-26:6; 26:7-12; 29:13-25 [217-7]. The fact that Stuart’s Original
Report was ghost written by Rickett militates in favor of finding that the Original
Report did not comply with the disclosure requirements of Rule 26(a)(2)(B).
By his own testimony, Stuart acknowledges that the Original Report was
incomplete and lacking in critical detail and thus contravened the requirements of
Rule 26(a). Rule 26(a) mandates that initial disclosures of expert reports be
“complete and detailed.” Sierra Club, Lone Star Chapter v. Cedar Point Oil Co. Inc.,
73 F.3d 546, 571 (5th Cir. 1996). Insofar as Stuart seeks to offer expert opinion as
to the cause of the deflection in trusses at Waverly Apartments, Stuart’s own
testimony makes clear that the Original Report was incomplete in this crucial
regard. According to Stuart, when the Original Report “was put together, it was to
tell [Seahorn] what we saw, what we observed and what the problem was[; i]t was
not . . . any attempt to go beyond that.” Stuart Dep. 1991:23-192:4 [217-7]. Stuart
view it would not alter the outcome here because Seahorn never properly disclosed or designated
Rickett as either a testifying or non-testifying expert. See Pl.’s Initial Expert Disclosures [72].
20
added that the reason he sent Rickett back to the Waverly Apartments to conduct
the investigation made the basis of the Supplemental Report was to use laser
measurements to obtain “an accurate depiction” of the deflection previously
observed. Id. at 193:6-194:3. Thus, the Original Report cannot be viewed as
offering anything beyond speculation and conjecture on the issue of causation. See
Black v. Food Lion, Inc., 171 F.3d 308, 313 (5th Cir. 1999) (finding that where an
expert explained that she did not “find the cause” of the plaintiff’s fibromyalgia but
rather that she “found an event that contributed to the development of the
symptom[,]” the expert’s opinion as to causation “[o]n its own terms . . . includes
conjecture”). Consequently, the Original Report was incomplete and lacked
sufficient detail to serve the purposes for which it was intended, making it
insufficient under Rule 26(a)(2).
Seahorn’s reliance on the Supplemental Report to cure this insufficiency is
unavailing. Supplemental disclosures “are not intended to provide an extension of
the deadline by which a party must deliver the lion’s share of its expert
information.” Cedar Point Oil, 73 F.3d at 571. The Supplemental Report was
disclosed on February 19, 2015, after the expert deadline had passed in this case,
and only four weeks before the April 15, 2015, discovery deadline. The record
makes evident that Stuart’s Supplemental Report contains the “lion’s share” of his
expert testimony related to the deflection present in trusses at Waverly
Apartments. Stuart even testified that the methodology underlying the
measurements detailed in the Supplemental Report renders the Supplemental
21
Report “lots more accurate” and makes the Supplemental Report the report which
“we would stand behind” while the Original Report “was merely an attempt to see
what we had.” Stuart Dep. 194:11-18; 195:7-12 [217-7]. Although the
Supplemental Report provides more specific information regarding the deflection
observed by Rickett, this information undoubtedly should have been produced at
the time Seahorn’s initial expert disclosures under Rule 26(a) were due, and
certainly by the original expert designation deadline. Therefore, the information
provided in the Supplemental Report was not properly disclosed and violates the
disclosure requirements of Rule 26. U.S. ex rel. Dekort v. Integrated Coast Guard
Sys., No. 3:06-cv-1792-O, 2010 WL 8367619, at *3 (N.D. Tex. Oct. 8, 2010)
(declining to consider supplemental report of proffered expert on opposing party’s
motion to exclude the expert where it was apparent that the “lion’s share” of
expert’s testimony was offered in the supplemental disclosure).
The facts underlying the Original Report further illuminate its insufficient
nature. “An expert witness is permitted to use assistants in formulating his expert
opinion, and normally they need not themselves testify.” Dura Auto. Sys. of
Indiana, Inc. v. CTS Corp., 285 F.3d 609, 612 (7th Cir. 2002) (citing United States v.
Bramlet, 820 F.2d 851, 855-56 (7th Cir. 1987)). The “[a]nalysis becomes more
complicated if the assistants aren’t merely gofers or data gatherers but exercise
professional judgment that is beyond the expert’s ken.” Id. Here, Rickett was more
than a “gofer or data gatherer” and exercised his own professional judgment in
22
preparing both the Original Report and the Supplemental Report based on
information which Rickett alone perceived. Stuart acknowledged that the
observations contained in the Original Report regarding the trusses beneath each of
the 16 residential buildings were not his observations but, instead, were Rickett’s.
Stuart Dep. 187:14-188:11 [217-7]. Rickett, not Stuart, spoke to the manufacturer
of the trusses. Id. at 158:11-18. Stuart would need to know what the manufacturer
told Rickett regarding the trusses’ allowable deflection, and Stuart claimed to have
no opinion whether Waverly Apartments were required “to upgrade to code” under
Bay St. Louis Ordinance 521, despite the fact that the Original Report opined that
such an upgrade was required. Id. at 163:7-165:11, 197:10-198:20, 199:11-200:20.
Stuart agreed that in order to independently verify the purported opinions in
the Supplemental Report, Mississippi Farm Bureau would need information within
Rickett’s possession such as Rickett’s field notes, drawings, and data. Id. at 176:1425. Most telling, Stuart was not familiar with each of the columns of data in the
Supplemental Report, he realized for the first time during his deposition that one of
the columns contained Rickett’s measure of truss elevation when the column should
have contained a measure of the unsupported length of each truss, and, according to
Stuart, Mississippi Farm Bureau had no way of verifying the calculated deflection
because Rickett did not include the unsupported length of the trusses in the
Supplemental Report.7 Id. at 172:17-176:6. This record makes clear that Rickett
7
According to Stuart, a truss has “failed” when the truss’s deflection “exceeds the allowable
deflection” as provided by the manufacturer of the truss. Stuart Dep. 197:10-198:6 [217-7]. The
23
was more than a mere gofer upon whom Stuart relied in formulating Stuart’s
purported opinions. See also Malletier v. Dooney & Bourke, Inc., 525 F. Supp. 2d
558, 664 (S.D.N.Y. 2007) (“[E]xperts are permitted to rely on opinions of other
experts to the extent that they are of the type that would be reasonably relied upon
by other experts in the field. But in doing so, the expert witness must in the end be
giving his own opinion. He cannot simply be a conduit for the opinion of an
unproduced expert.”). Based on the foregoing, Stuart should be precluded from
testifying as an expert in this case.
2.
There is Too Great an Analytical Gap Between the Investigation
Performed by Rickett and Stuart’s Conclusion as to Causation
In addition, Stuart should be excluded because there is too great an
analytical gap between the deflections in the trusses observed by Rickett and
Stuart’s conclusion that the deflections were caused by flooding brought about by
Hurricane Isaac. The Fifth Circuit has emphasized “the important test of analytical
‘fit’ between [an expert’s] methodology . . . and the conclusions drawn” by the
expert. Johnson v. Arkema, Inc., 685 F.3d 452, 461 (5th Cir. 2012) (quoting Rider v.
Sandoz Pharm. Corp., 295 F.3d 1194, 1197 (11th Cir. 2002)) (internal marks
omitted). “[J]ust because a methodology is acceptable for some purposes, it may not
be acceptable for others, and a court may not admit evidence when there is simply
too great an analytical gap between the data and the opinion proffered.” Id. Even
calculated deflection, therefore, is central to this case because it is the calculated deflection which
must be compared to the allowable amount of deflection. Id. at 177:9-178:2.
24
Stuart acknowledges that the measurements obtained by Rickett during his
December 19, 2012, inspection do nothing to identify a conclusion as to the cause of
the deflections. See Stuart Dep. 191:23-192:4 [217-7]. The Original Report offers
only the conclusory statement that “[the] deflection occurred as a result of being
saturated by flood[]waters while under load following Hurricane Isaac.” Original
Report 2 [217-1]. The Original Report does not make any attempt to bridge the
expansive gap between this conclusion and the actual cause of the deflection in the
trusses measured by Rickett, and this gap renders Stuart’s opinion inadmissible.8
Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997) (noting that “conclusions and
methodology are not entirely distinct from one another” and that while “[t]rained
experts commonly extrapolate from existing data[,]” district courts may find “that
there is simply too great an analytical gap between the data and the opinion
proffered”).
Seahorn has not established that Stuart’s opinion that the cause of the
deflections Rickett observed at Waverly Apartments was anything more than
Stuart’s own ipse dixit, which is an insufficient basis upon which to predicate
admissible expert opinion. “[N]othing in either Daubert or the Federal Rules of
Evidence requires a district court to admit opinion evidence that is connected to
existing data only by the ipse dixit of the expert.” Black, 171 F.3d at 313 (citing
8
Because the Supplemental Report adds nothing further on the issue of causation, this
outcome would be unaltered even if the Court were to consider the Supplemental Report at this
point.
25
Kumho Tire, 119 S. Ct. at 1179). In his Original Report, Stuart notes that
inspection of the trusses beneath some of the buildings at Waverly Apartments
“showed deflection in the trusses of approximately [two inches,]” and he makes the
conclusory statement that “[t]his deflection occurred as a result of being saturated
by flood[]waters while under load following Hurricane Isaac.” Original Report 2
[217-1]. In his Supplemental Report, Stuart produces a more detailed analysis of
trusses in the 16 buildings at Waverly Apartments, but again states without
further explanation “[t]he deflection in all trusses is related to the flood of the site
caused by Hurricane Isaac.” Suppl. Report 3 [217-2]. In neither the Original
Report nor the Supplemental Report does Stuart offer anything more than his own
conclusory statements that the deflection Rickett observed was caused by Hurricane
Isaac.
At bottom, the record makes clear that Stuart’s proffered expert testimony in
this case is unreliable. The “reliability of expert testimony turns upon its nature
and the purpose for which its proponent offers it.” United States v. Valencia, 600
F.3d 389, 424 (5th Cir. 2010) (citations omitted). Seahorn offers Stuart as an expert
in the area of causation, in particular the cause of what Seahorn contends are
deflected trusses which purportedly require reconstruction of each of the 16
residential buildings located at Waverly Apartments. While both the Original
Report and Supplemental Report may identify a problem, neither report sufficiently
explains the method by which Stuart can reasonably or reliably conclude that the
cause of that problem was flood water associated with Hurricane Isaac. In view of
26
the record of this case and the purpose for which Seahorn seeks to use Stuart’s
opinions, those opinions are unreliable and must be excluded.
C.
Mississippi Farm Bureau’s Motion to Exclude Testimony of Michael Gurtler
Should be Granted in Part and Denied in Part
Seahorn appears to rely on Gurtler to offer expert testimony in the areas of
the damage to the interior flooring of the residential units caused by moisture
resulting from the flooding during Hurricane Isaac, and the cost to remediate the
damages at Waverly Apartments.9 To the extent that Gurtler relies on Stuart’s
reports to offer opinions related to the replacement of the floor truss system in each
of the residential buildings at Waverly Apartments, Gurtler must be precluded from
offering such testimony. “With respect to the admissibility of expert testimony, the
district court is ‘to ensure that an expert testimony rests upon a reliable
foundation.’” Primrose Operating Co. v. Nat’l Am. Ins. Co., 382 F.3d 546, 561 (5th
Cir. 2004) (quoting Guillory v. Domtar Indus. Inc., 95 F.3d 1320, 1331-32 (5th Cir.
1996)). The Court has excluded Stuart’s Original Report and Supplemental Report,
both of which purport to assign the cause of truss deflection observed at Waverly
Apartments to the flood waters of Hurricane Isaac. As a consequence of this
9
Seahorn claims in opposition to Defendants’ Motion to Exclude Testimony of Michael
Gurtler [215] that Gurtler will offer expert opinion that Mississippi Farm Bureau’s claim adjuster
performed an inadequate inspection of flood damages at the Waverly Apartments, which prevented
the adjuster from discovering damage to the floor framing system. The Court finds that such an
opinion is beyond the scope of Seahorn’s Rule 26(a)(2) expert designation of Gurtler, and the Court
will not allow Gurtler to testify beyond the scope of his designation. See, e.g., Powell v. Dallas
Morning News L.P., 776 F. Supp. 2d 240, 247 (N.D. Tex. 2011) (refusing to allow expert to testify
beyond the scope of his designation), aff’d sub nom., Powell v. Dallas Morning News, LP, 486 F.
App’x 469 (5th Cir. 2012).
27
finding, Gurtler lacks a reliable foundation upon which to offer opinions related to
the alleged failure of the truss systems in each of the residential buildings because,
even assuming those truss systems have failed, Gurtler has acknowledged that a
determination of the impact of trusses being submerged in water is beyond the
realm of his expertise. Gurtler Dep. 302:10-13 [215-5].
Insofar as Gurtler relies upon visual inspection of the condition of the interior
flooring of the first floor apartment units as support for any opinion that the failure
of the truss systems is due to flooding caused by Hurricane Isaac, such an opinion is
the product of speculation and conjecture. See Stuart Dep. 194:4-6 [217-7] (agreeing
that a “sight measurement” of the trusses would not comply with best engineering
practices); 194:21-195:12 [217-7] (indicating that visual measurements of the
trusses lack in accuracy). Gurtler will be precluded from offering expert opinion
related to damages Seahorn contends are the result of the purportedly failed truss
systems beneath the residential buildings at Waverly Apartments.
With respect to the remaining areas in which it appears Seahorn seeks to
have Gurtler offer expert testimony, the Court finds that the Motion [217] should be
denied at this time because Mississippi Farm Bureau’s objections in this regard go
more to the weight of the evidence Seahorn seeks to offer as opposed to its
admissibility. “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.” United States v. 14.38
Acres of Land, More or Less Situated in Leflore Cnty., State of Miss., 80 F.3d 1074,
28
1077 (5th Cir. 1996). Mississippi Farm Bureau’s contention that “Gurtler’s
conclusion is supported by his data, at most, only 14 [percent] of the time” goes to
the weight of Gurtler’s proposed testimony rather than its admissibility. Mem. in
Supp. of Mot. to Exclude Test. of Michael Gurtler 12-15 [216]. The same holds true
for Mississippi Farm Bureau’s objection to Gurtler’s damages estimates, which
objection is predicated on apparent discrepancies between Gurtler and Lyon’s
testimony regarding how the damages estimates were created. Id.; see also
Primrose Operating Co., 382 F.3d at 562 (“It is the role of the adversarial system,
not the court, to highlight weak evidence.”). The Motion [215] will be denied in part
to the extent it seeks exclusion of Gurtler’s opinions related to the cause and cost of
damages to the interior flooring (as opposed to the trusses) at Waverly Apartments.
D.
Mississippi Farm Bureau’s Motion to Exclude Testimony of Richard Lyon
Should be Granted in Part and Denied in Part
Mississippi Farm Bureau does not appear to contest Lyon’s qualifications to
the extent he seeks to opine as to the cost of repairs allegedly sustained by Seahorn.
See Rebuttal in Supp. of Mot. to Exclude Test. of Richard Lyon 3-6 [265]. Instead,
Mississippi Farm Bureau contends that Lyon did not use his qualifications in this
case. Id. Implicit throughout the Motion [219] is the claim that Lyon did nothing
more than input disputed damages assessments supplied by Gurtler, and in doing
so, did not employ the “intellectual rigor” characteristic of an expert in the field of
adjusting and damages estimation. Mem. in Supp. of Mot. to Exclude Test. of
Richard Lyon 5, 8-9 [220].
29
While Mississippi Farm Bureau contests the reliability of the damages
assessments provided by Gurtler with respect to the interior flooring in each
residential building at Waverly Apartments, the Court has found that Gurtler’s
opinions in that limited regard are sufficiently reliable and that Mississippi Farm
Bureau’s challenges go more to the weight of that evidence rather than its
admissibility. Because the Court at this stage is not concerned with the correctness
of any opinion offered by Lyon, it is permissible for Lyon to rely on Gurtler’s
damages assessments on the flooring (but not the trusses), notwithstanding the
disputed nature of those assessments as limited by this Order, in using the
Xactimate computer software to arrive at a damages estimation. Moore v. Ashland
Chem. Inc., 151 F.3d 269, 276 (5th Cir. 1998); see also Arnold v. Canal Barge Co.,
No. Civ. A. 13-4966, 2014 WL 2465313, at *2 (E.D. La. June 2, 2014) (“[E]xperts
may rely on one version of a disputed fact, and ‘reliable expert testimony often
involves estimation and reasonable inferences from a sometimes incomplete
record.’”) (quoting Moore v. Int’l Paint, L.L.C., 547 F. App’x 513, 515 (5th Cir.
2013)). The Court finds that because the record supports the conclusion that the
damages assessments related to the interior flooring in each of the residential units
provided by Gurtler to Lyon are sufficiently reliable to pass Daubert scrutiny, the
Motion [219] should be granted in part and denied in part.
30
III. CONCLUSION
IT IS, THEREFORE, ORDERED AND ADJUDGED that the Motion to
Exclude Testimony of Frank Stuart [217] is GRANTED, and Frank Stuart is
EXCLUDED from offering expert testimony or opinion in this civil action.
IT IS, FURTHER, ORDERED AND ADJUDGED that the Motion to
Exclude Testimony of Michael Gurtler [215] is GRANTED IN PART and DENIED
IN PART, such that Gurtler will be permitted to offer expert testimony and opinion
limited to the damages allegedly caused by Hurricane Isaac to the interior flooring
of each of the residential buildings at Waverly Apartments.
IT IS, FURTHER, ORDERED AND ADJUDGED that the Motion to
Exclude Testimony of Richard Lyon [219] is GRANTED IN PART and DENIED
IN PART, such that Lyon will be permitted to offer expert testimony and opinion
limited to the estimated damages allegedly caused by Hurricane Isaac to the
interior flooring of each of the residential buildings at Waverly Apartments.
SO ORDERED AND ADJUDGED, this the 10th day of September, 2015.
s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE
31
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