TONY GERARD ASSOCIATES, LLC v. QBE SPECIALTY INSURANCE COMPANY

Filing 38

OPINION. Signed by Judge Renee Marie Bumb on 5/9/2016. (tf, )

NOT FOR PUBLICATION

[Docket No. 29]

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

TONY GERARD ASSOCIATES, LLC,
Plaintiff,

Civil No. 14-2412 (RMB/AMD)
OPINION

v.
QBE SPECIALTY INSURANCE
COMPANY,
Defendant.

APPEARANCES:
John C. Penberthy III
Penberthy & Penberthy, PC
2020 Springdale Road
Suite 400
Cherry Hill, NJ 08003
Attorney for Plaintiff
Michael S. Saltzman
Goldberg Segalla LLP
1700 Market Street
Suite 1418
Philadelphia, PA 19103-3907
Ronald D. Puhala
Goldberg Segalla LLP
902 Carnegie Center
Suite 100
Princeton, NJ 08540
Attorneys for Defendant
BUMB, UNITED STATES DISTRICT JUDGE:
This matter comes before the Court upon the Motion for
Summary Judgment and to Strike the Report of Plaintiff’s Expert
Robert Bouhon, or in the alternative, to Bar Plaintiff’s Expert

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from Testifying at Trial (the “Motion for Summary Judgment”)
filed by Defendant QBE Specialty Insurance Company (“QBE” or the
“Defendant”) [Docket No. 29].
parties’ submissions.

The Court has reviewed the

For the reasons set forth below, the

Motion for Summary Judgment will be denied without prejudice and
the Court shall conduct a Daubert hearing regarding the
admissibility of Mr. Bouhon’s expert report and testimony,
pursuant to Daubert v. Merrill Dow Pharmaceutical, Inc., 509
U.S. 579 (1993).
I.

FACTUAL AND PROCEDURAL BACKGROUND
This dispute stems from damage to Plaintiff’s property

allegedly caused by wind and wind driven rain during Hurricane
Sandy.

Plaintiff contends that Defendant QBE is required to

cover the full extent of its property damage under Plaintiff’s
insurance policy with Defendant QBE.

[Docket No. 14 Ex. A].

The insurance policy has a $25,000 deductible for wind-related
damage.

[Docket No. 14 Ex. B, C].

Defendant argues that

Plaintiff’s damages amount to less than $25,000 and, therefore,
the damage to Plaintiff’s property is not covered by the
insurance policy, given the deductible.

Defendant also argues

that Plaintiff cannot causally trace all the damage to its
property to Hurricane Sandy.

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Defendant QBE urges the Court to strike the report of
Plaintiff’s expert Robert Bouhon [Docket No. 14 Ex. E] for
failure to comply with the requirements of Federal Rule of
Evidence 702 regarding expert testimony.1

Mr. Bouhon opined that

the damage to Plaintiff’s property was caused by wind and wind
driven rain during Hurricane Sandy and that the damage amounts
to well over $25,000.

Defendant, however, objects to Mr.

Bouhon’s report and testimony on the grounds that Mr. Bouhon is
not qualified to testify as to the causation and amount of
damages to Plaintiff’s property.

Defendant also claims that Mr.

Bouhon’s opinions are unsupported and speculative and, as a
result, inadmissible.

Without the improper expert opinions of

Mr. Bouhon, Defendant argues, it is entitled to summary
judgment, as the only admissible evidence regarding the
causation and amount of damages comes from its own expert’s

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Federal Rule of Evidence 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.
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assessment of the property, which found certain damage to be
pre-existing and, in any case, determined that the total damage
was less than $25,000.
II.

LEGAL STANDARDS
A. New Jersey Local Rule 56.1(a)

As preliminary matter, the Court notes that neither party
has strictly complied with New Jersey Local Rule of Civil
Procedure 56.1(a), which provides in relevant part:
On motions for summary judgment, the movant shall
furnish a statement which sets forth material facts as
to which there does not exist a genuine issue, in
separately numbered paragraphs citing to the
affidavits and other documents submitted. A motion
for summary judgment unaccompanied by a statement of
material facts not in dispute shall be dismissed. The
opponent of summary judgment shall furnish, with its
opposition papers, a responsive statement of material
facts, addressing each paragraph of the movant’s
statement, indicating agreement or disagreement and,
if not agreed, stating each material fact in dispute
and citing to the affidavits and other documents
submitted in connection with the motion; any material
fact not disputed shall be deemed undisputed for
purposes of the summary judgment motion. . . . Each
statement of material facts shall be a separate
document (not part of a brief) and shall not contain
legal argument or conclusions of law.
While neither party has requested leave from this Court to
be excused from the requirements of Local Rule 56.1(a), this
Court will nonetheless overlook the parties’ non-compliance as
it relates to this motion.

The Court anticipates full

compliance with all applicable rules in the future.

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B. Summary Judgment Standard
The Court now addresses Defendant’s motion for summary
judgment and request to strike the expert report of Mr. Bouhon.
Summary judgment shall be granted if “the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Civ. P. 56(a).

Fed. R.

A fact is “material” if it will “affect the

outcome of the suit under the governing law[.]”

Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

A dispute is

“genuine” if it could lead a “reasonable jury [to] return a
verdict for the nonmoving party.”

Id.

When deciding the existence of a genuine dispute of
material fact, a court’s role is not to weigh the evidence; all
reasonable “inferences, doubts, and issues of credibility should
be resolved against the moving party.”

Meyer v. Riegel Prods.

Corp., 720 F.2d 303, 307 n. 2 (3d Cir. 1983).

However, a mere

“scintilla of evidence,” without more, will not give rise to a
genuine dispute for trial.

Anderson, 477 U.S. at 252.

The movant “always bears the initial responsibility of
informing the district court of the basis for its motion, and
identifying those portions of ‘the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any,’ which it believes demonstrate the
absence of a genuine issue of material fact.”

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Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P.
56(c)).

Then, “when a properly supported motion for summary

judgment [has been] made, the adverse party ‘must set forth
specific facts showing that there is a genuine issue for
trial.’”
56(e)).

Anderson, 477 U.S. at 250 (quoting Fed. R. Civ. P.
The non-movant’s burden is rigorous: it “must point to

concrete evidence in the record”; mere allegations, conclusions,
conjecture, and speculation will not defeat summary judgment.”
Orsatti v. N.J. State Police, 71 F.3d 480, 484 (3d Cir. 1995);
accord Jackson v. Danberg, 594 F.3d 210, 227 (3d Cir. 2010)
(citing Acumed LLC v. Advanced Surgical Servs., Inc., 561 F.3d
199, 228 (3d Cir. 2009)) (“[S]peculation and conjecture may not
defeat summary judgment.”).
III. ANALYSIS
Defendant argues that Mr. Bouhon is not a qualified expert
under Federal Rule of Evidence 702 and that his opinions are
merely speculative and subject to exclusion.

“Rule 702 embodies

a trilogy of restrictions on expert testimony: qualification,
reliability and fit.”

Schneider ex rel. Estate of Schneider v.

Fried, 320 F.3d 396, 404 (3d Cir. 2003) (internal citations
omitted).

The Third Circuit has “long stressed the importance

of in limine hearings under Rule 104(a) in making the
reliability determination under Rule 702 and Daubert.”

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Padillas

v. Stork-Gamco, Inc., 186 F.3d 412, 417 (3d Cir. 1999).

The

decision to hold a Daubert hearing “rests in the sound
discretion of the district court.”

Henry v. St. Croix Alumina,

LLC, 572 F. App’x 114, 119 (3d Cir. 2014) (quoting Padillas, 186
F.3d at 418).
Here, Defendant’s Motion for Summary Judgment hinges on the
admissibility of Mr. Bouhon’s report and testimony regarding the
causation and calculation of damages.

Although Defendant’s

arguments appear to be well-founded, the resolution of this
motion requires a Daubert hearing.

The Court will therefore

deny the Motion for Summary Judgment without prejudice and
schedule a Daubert hearing the day before trial.

See Daubert,

509 U.S. at 589 (recognizing district court’s role as gatekeeper
to ensure that all expert testimony and evidence is relevant and
reliable); Martin v. Blaser Swisslube, Inc., 2005 WL 3454291, at
*7 (D.N.J. Dec. 16, 2005) (“A motion for summary judgment should
be denied without prejudice pending the outcome of a Daubert
hearing, when disposition of the motion depends on a
determination of the admissibility of expert testimony.”).
IV.

CONCLUSION

For the reasons set forth above, the Defendant’s Motion for
Summary Judgment shall be DENIED without prejudice and the Court
shall hold a Daubert hearing regarding the admissibility of

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Robert Bouhon’s report and testimony the day before trial.

An

appropriate Order will issue this date.

s/Renée Marie Bumb
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE
Dated: May 9, 2016

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