Brooks et al v. GAF Materials Corporation

Filing 273

ORDER AND OPINION granting 192 Motion to Exclude as set out. Signed by Honorable J Michelle Childs on 7/11/2014.(mbro, ) Modified on 7/11/2014 to edit document type (mbro, ).

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
ANDERSON/GREENWOOD DIVISION
Jack Brooks and Ellen Brooks, on behalf
of themselves and all others similarly
situated,

)
)
)
)
Plaintiffs,
)
)
v.
)
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GAF Materials Corporation,
)
)
Defendant.
)
___________________________________ )

Civil Action No.: 8:11-cv-00983-JMC

ORDER AND OPINION

In this class action lawsuit, Jack Brooks and Ellen Brooks, on behalf of themselves and
all others similarly situated, (collectively “Plaintiffs”) allege that Defendant GAF Materials
Corporation (“GAF”) manufactured and sold defective roofing shingles. (See ECF No. 1–1.)
This matter is before the court pursuant to a motion in limine by GAF to exclude
testimony at trial by Plaintiffs’ expert Jim D. Koontz (“Koontz”), who is a professional engineer
and a registered roofing consultant. (ECF No. 192.) GAF specifically moves to exclude Koontz
from testifying about (1) testing of shingles pursuant to the American Society Testing and
Materials Standard (“ASTM”) D3462 (including test results) where such testing was performed
substantially after the time of manufacture; (2) GAF’s corporate knowledge and objectives; and
(3) the financial status of Plaintiffs and his perception of their ability to mitigate their damages.
(ECF No. 192-1 at 4, 6.) As the basis for this motion, GAF argues that Koontz’s testimony
regarding his application of ASTM D3462 is incorrect and should not be allowed because it
results from testing used shingles years after their manufacturing date when the ASTM D3462
only test the strength of shingles at the time of manufacture. (Id. at 5–7, 13–14.) GAF argues
that Koontz should not be allowed to offer speculative opinions about GAF’s knowledge,
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objectives, and thinking because these are not proper subjects of opinion testimony from an
engineer or roofing consultant especially when “he has never worked for GAF and has never
spoken to the authors of the documents, about what they mean.” (Id. at 9, 15.) GAF further
argues that Koontz’s testimony about a homeowner’s financial ability to mitigate damages
should not be permitted because it is misleading and impermissible under Fed. R. Evid. 702. (Id.
at 16.)
In their response to GAF’s motion in limine, Plaintiffs state that Koontz’s methodology is
reliable because he applied ASTM protocols to test shingles within specific warranty periods for
the purpose of determining whether Timberline® shingles have the characteristics, durability, and
quality as advertised by GAF.

(ECF No. 213 at 6.)

In this regard, Plaintiffs assert that

“[a]lthough the authors of ASTM D3462 wrote from the perspective of defining properties at the
time of manufacture, given Defendant’s advertised warranty lengths, these standards are highly
probative as to whether shingles will continue to perform as expected during their stated
duration.” (Id.) Plaintiffs also suggest that in light of Koontz’s indisputable qualifications as a
published roofing expert, Fed. R. Evid. 702 allows him to look at GAF’s documents and
explaining the meaning of them to the jury and further explain “how the documents support his
opinion that GAF had knowledge of the latent defect in Mobile manufactured Timberline30
shingles and failed to take known steps to fix the defect.” (Id. at 10.)
In reply, GAF reiterates that Koontz’s testimony is unreliable because it results from
doing ASTM testing on shingles that is conducted after the time of manufacture. (ECF No. 232
at 4–8.) GAF further asserts that Koontz’s expertise is unnecessary to explain GAF’s documents
because “[t]he documents at issue are not technical in nature; they are emails and other internal
GAF documents that a lay person could understand.” (Id. at 10.)

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When determining the admissibility of expert testimony, the court acts as a gatekeeper
and must assess whether the expert’s testimony is both relevant and reliable. Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 141 (1999). “Evidence is relevant if: (a) it has any tendency to make
a fact more or less probable than it would be without the evidence; and (b) the fact is of
consequence in determining the action.” Fed. R. Evid. 401. Furthermore, a witness qualified as
an expert “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. The party
seeking to have an expert opinion admitted must establish its relevance and reliability by a
preponderance of proof. Cooper v. Smith & Nephew, Inc., 259 F.3d 194, 199 (4th Cir. 2001).
GAF contends that Koontz’s testimony is unreliable and irrelevant in part because his
methodology does not comply with the ATSM D3462 standard. The Supreme Court has set
forth the following list of non-exclusive, flexible factors to be used in assessing whether the
reasoning or methodology underlying expert testimony is scientifically valid and whether the
reasoning or methodology properly can be applied to the facts in issue: (1) whether a theory or
technique can and has been tested; (2) whether the theory has been subjected to peer review and
publication; (3) a consideration of the known or potential rate of error and the existence and
maintenance of standards controlling the technique's operation; and (4) whether there is “general
acceptance” of the theory or technique within the relevant scientific community. Daubert v.
Merrell Dow Pharm., Inc., 509 U.S. 579, 592–95 (1993). Upon review, and after careful
consideration of the arguments submitted by the parties, the court finds that Koontz’s testimony

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and his methodology regarding the application of the ASTM D3462 standard on used shingles do
not meet the Daubert standard for scientific reliability and are therefore inadmissible in this
matter.

The court will also limit Koontz’s testimony regarding GAF’s documentation to

explaining scientific and technical terms and not allow him to offer explanation and/or interpret
GAF’s state of mind for the jury. Moreover, the court finds that it is beyond the scope of
Koontz’s expertise to testify regarding Plaintiffs’ net worth and their ability to mitigate their
damages. Based on the foregoing, the court GRANTS GAF’s motion in limine to exclude
certain testimony at trial by Plaintiffs’ expert Jim D. Koontz.
IT IS SO ORDERED.

United States District Judge
July 11, 2014
Columbia, South Carolina

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