Laverdure & Associates v. Depositors Insurance Company

Filing 40

MEMORANDUM OPINION AND ORDER - It is therefore ORDERED that Defendant's Motion to Strike or Limit Expert Testimony (Dkt. 27 ) is hereby GRANTED IN PART AND DENIED IN PART. Defendant's motion is granted as to Bell's testimony regar ding causation and to the scope limitation of the Plaintiff's expert witnesses. Plaintiff's Opposed Motion for Leave to Amend Designation of Expert Witnesses is hereby GRANTED (Dkt. 30 ). Plaintiff is also given fourteen days from the date of this order to supplement its disclosures to remedy the deficiencies noted above. Signed by District Judge Amos L. Mazzant, III on 10/19/2017. (baf, )

United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

LA VERDURE & ASSOCIATES
v.
DEPOSITORS INSURANCE COMPANY

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Civil Action No. 4:16-cv-00883
Judge Mazzant

MEMORANDUM OPINION AND ORDER
Pending before the Court is Defendant’s Motion to Strike or Limit Expert Testimony (Dkt.
#27) (“Motion to Strike”) and Plaintiff’s Opposed Motion for Leave to Amend Designation of
Expert Witnesses (Dkt. #30) (“Motion for Leave”). After reviewing the motion and the responses,
the Court finds Defendant’s Motion to Strike should be granted in part and denied in part and
Plaintiff’s Motion for Leave should be granted.
BACKGROUND
Plaintiff La Verdure & Associates filed suit against Defendant Depositors Insurance
Company for alleged violations of the Texas Insurance Code, Texas Deceptive Trade Practices
Act, breach of contract, and breach of the duty of good faith and fair dealing (Dkt. #1). In the
Court’s Scheduling Order (Dkt. #11), the Court set March 24, 2017 as the deadline for Plaintiff’s
disclosure of expert testimony.
On April 7, 2017, Plaintiff filed its Expert Witness List, designating Shann C. Bell (“Bell”)
and Gregory Becker (“Becker”) as expert witnesses (Dkt. #18). 1 On May 19, 2017, Defendant
filed its Motion to Strike or Limit Expert Testimony (Dkt. #27). Plaintiff filed a response (Dkt.
#29) and Defendant filed a reply (Dkt. #32). On June 5, 2017, Plaintiff filed its Motion for Leave

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Although this is after the deadline in the scheduling order, Defendant does not object to the designation as being late.

to Amend Designation of Expert Witnesses (Dkt. #30). Defendant filed a response (Dkt. #33) and
Plaintiff filed a reply (Dkt. #34).
LEGAL STANDARD
A party offering an expert witness must disclose the witness as an expert and must comply
with the Federal Rules of Civil Procedure regarding such disclosure. Federal Rule of Civil
Procedure 26(a)(2)(B) requires that “if the witness is one retained or specially employed to provide
expert testimony in the case or one whose duties as the party's employee regularly involve giving
testimony,” then the disclosure must be accompanied by a written report that is written and
prepared by the witness. FED. R. CIV. P. 26(a)(2)(B). An expert report must be “detailed and
complete . . . to avoid the disclosure of ‘sketchy and vague’ expert information.” Sierra Club,
Lone Star Chapter v. Cedar Point Oil Co., 73 F.3d 546, 571 (5th Cir. 1996). This report must
include: (1) a statement of all opinions the witness will express and the reasons for them; (2) the
facts considered in forming the opinions; (3) exhibits that support them; (4) the witness’s
qualifications and list of publications the witness authored in the last ten years; (5) a list of all other
cases in which the witness was an expert for the last four years; and (6) and a statement of
compensation. Id.
If an expert is properly disclosed, the expert is admissible if it meets the standard set out in
the Federal Rules of Evidence. Federal Rule of Evidence 702 provides for the admission of expert
testimony that assists the trier of fact to understand the evidence or to determine a fact in issue.
FED. R. EVID. 702. A district court must make a preliminary determination, when requested, as to
whether the requirements of Rule 702 are satisfied with regard to a particular expert's proposed
testimony. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592–93 (1993). Courts act
as gatekeepers of expert testimony “to make certain that an expert, whether basing testimony upon

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professional studies or personal experience, employs in the courtroom the same level of intellectual
rigor that characterizes the practice of an expert in the relevant field.” Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 152 (1999). The party offering the expert's testimony has the burden
to prove by a preponderance of the evidence that: (1) the expert is qualified; (2) the testimony is
relevant to an issue in the case; and (3) the testimony is reliable. Daubert, 509 U.S. at 590–91.
ANALYSIS
Defendant objects to Plaintiff’s designation of Bell and Becker because Plaintiff failed to
provide information and material required by Rule 26(a)(2)(B), Plaintiff improperly designated
Bell and Becker with an unlimited scope, and because Bell and Becker fail on Daubert grounds.
I.

Federal Rule of Civil Procedure 26(a)(2)(B) Requirements
Defendant contends that Federal Rule of Civil Procedure 26(a)(2)(B)(vi) requires a party

to disclose “a statement of the compensation to be paid for the study and testimony in the case.”
Defendant argues that neither Becker nor Bell’s report contains this statement of compensation.
As to Bell, Defendant also asserts there is no indication, aside from assurance by counsel, that Bell
actually prepared and signed the report in accordance with the rules. Additionally, Defendant
maintains Plaintiff failed to present testimonial history for Bell as required by Federal Rule of
Civil Procedure 26(a)(2)(B)(v).
In its response to the Motion to Strike, Plaintiff asserted that Bell is a non-retained expert.
Therefore, Plaintiff argues it only needs to meet the requirements of Federal Rule of Civil
Procedure 26(a)(2)(C). As such, Plaintiff argues that Bell’s disclosure meets the requirements for
non-retained experts. However, three days later, Plaintiff also filed a Motion for Leave to Amend
Designation of Expert Witnesses (Dkt. #30). In its Motion for Leave, Plaintiff admits that its
disclosures for Bell and Becker were incomplete and seeks to fix the deficiencies for Bell and

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Becker, both as retained experts. In light of these facts, the Court will proceed with the analysis
as if both Bell and Becker are retained experts.
Because Plaintiff admits that the initial disclosures are insufficient, the Court must
determine the appropriate remedy. In determining the remedy, courts must balance four factors:
(1) the explanation for failure to properly identify the witness; (2) the importance of the testimony;
(3) potential prejudice in allowing testimony; and (4) the availability of a continuance to cure such
prejudice. Geiserman v. MacDonald, 893 F.2d 787, 791 (5th Cir. 1990). Based on these four
factors, the appropriate remedy, in this case, is to allow Plaintiff to amend its expert designations.
Under the first factor, the Court must consider Plaintiff’s explanation for the failure to
identify Bell and Becker properly. Plaintiff did not even attempt to explain why it initially filed
an insufficient disclosure. Plaintiff merely stated that “Plaintiff is now aware that its Designation
of Expert Witness was incomplete.” (Dkt. #30 at p. 1). Considering Plaintiff has no significant
justification for the insufficient disclosure, this factor favors exclusion of Bell and Becker’s
testimony.
Under the second factor, the Court must consider the importance of Bell and Becker’s
testimony. In its Motion for Leave, Plaintiff did not offer any explanation as to the importance of
Becker or Bell. In response to the Motion to Strike and in its reply to the Motion for Leave,
Plaintiff asserts the experts are essential 2 to its case-in-chief, and that it would not be able to prove
the essential elements of its claims without the experts. (Dkt. #29 at p. 8; Dkt. #34 at p. 2). Further,
Plaintiff claims that “[c]ourts should be especially wary if striking the expert will prevent a party
from presenting his case altogether.” (Dkt. #29 at p. 8; Dkt. #34 at p. 2) (citing Villarreal v. City

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In response to the Motion to Strike, Plaintiff claims that Bell will testify “as to the damage, both actual and
consequential, building practices, code and ordinance, as well as all other areas of damage surrounding the subject
loss that resulted from the storm of March 3, 2016,” and Becker will testify as to causation (Dkt. #29 at p. 4).

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of Laredo, 2008 WL 2770110, at *11 (S.D. Tex. July 11, 2008)). While Plaintiff should have
raised this argument in its opening motion, the Court acknowledges that Bell and Becker are
designated to testify about necessary elements to Plaintiff’s claims. Accordingly, this factor
weighs in favor of allowing Plaintiff to amend its disclosure rather than exclude the experts from
trial.
Under the third factor, the Court analyzes any potential prejudice against Defendant for
permitting the amendment of the disclosure. The parties are in agreement that there would be no
prejudice to Defendant if the Court permitted Plaintiff to supplement its designations. (Dkt. #29
at p. 5) (“Defendants have not shown and cannot show that they will be prejudiced or unfairly
surprised with regard to such testimony.”); (Dkt. #32 at p. 2) (“Depositors has not been irreparably
harmed by the late disclosure of material that were provided with Plaintiff’s Motion for Leave.”).
As such, this factor weighs in favor of allowing Plaintiff to amend. 3
Lastly, the Court considers whether a continuance cures any prejudice to Defendant. Since
the parties agree that there is no prejudice, there is no need to cure prejudice. However, if there is
any prejudice, it could be cured by granting a continuance of the discovery deadline. The Pretrial
Conference is on December 15, 2017, with trial to occur between January 8, 2018, and February
2, 2018. This allows time for the parties to engage in additional discovery, if needed. Therefore,
the fourth factor weighs against exclusion and in favor of allowing Plaintiff to amend its
designations. 4

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This factor distinguishes this case from Avneri v. Hartford Fire Insurance Company, 4:16-cv-917, Dkt #34 (E.D.
Tex. Oct. 10, 2017). In Avneri, Becker was designated untimely. Additionally, the opposing party did not have an
opportunity to designate rebuttal witnesses or an opportunity to challenge Becker because the deadline to challenge
had expired. Here, Plaintiff designated Becker and Bell insufficiently, consequently, Defendant knew the contents
and substance of the experts’ reports. Therefore, Defendant had the ability to designate any rebuttal witness it found
necessary.
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This factor also differentiates the present case from Avneri. A continuance in that case would disrupt the trial
schedule and cause delays. In this case, a continuance would not cause any delay.

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This case is similar to Betzel v. State Farm Lloyds, in which the Fifth Circuit held striking
an expert in a similar set of circumstances was unwarranted. 480 F.3d 704, 708 (5th Cir. 2007).
Defendant attempts to distinguish this case by claiming Defendant provided Plaintiff with repeated
reminders that its designations were not in compliance with the Federal Rules of Civil Procedure.
However, with the facts of this case, 5 this distinction does not provide a reason to depart from the
Fifth Circuit’s holding. Striking Plaintiff’s experts all together is too harsh a remedy in this case.
In re Complaint of C.F. Bean L.L.C., 841 F.3d 365, 374 (5th Cir. 2016); Betzel, 480 F.3d at 708;
Geiserman v. MacDonald, 893 F.2d 787, 792 (5th Cir. 1990). Therefore, Plaintiff’s Motion for
Leave should be granted.
However, as Defendant argues, granting Plaintiff’s Motion for Leave does not cure all the
deficiencies Defendant identified with Plaintiff’s designations. Yet, the factors favor allowing
Plaintiff’s experts to testify at trial. Accordingly, the Court grants Plaintiff fourteen days to amend
its expert designations.
II.

Scope
Defendant argues that the scope of Bell and Becker’s testimony is open-ended and creates

a limitless scope for the experts. Defendant maintains that the Federal Rules require the party
identifying an expert witness to provide “‘a complete statement of all opinions the witness will
express and the basis and the reasons for them.’” (Dkt. #27 at p. 5) (citing FED. R. CIV. P.
26(a)(2)(B)(i)). Plaintiff does not respond to Defendant’s argument regarding the scope. As such,

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Defendant argues that it previously informed Plaintiff that its designations were not filed in compliance with the
Federal Rules of Civil Procedure. It supports this argument with a letter dated April 4, 2017. This letter informed
Plaintiff it had not formally designated its expert witnesses and agreed to allow a late designation, if it was filed by
the end of the week, April 7, 2017. Plaintiff filed its designation on April 7, although it did so insufficiently.
Subsequently, on May 8, 2017, Defendant informed Plaintiff that its formal designations were insufficient and asked
if it would supplement. Defendant did not produce Plaintiff’s response to this correspondence. Less than two weeks
later, Defendant filed the present Motion to Strike claiming that while conferring with Plaintiff, Plaintiff stated it
intended to supplement, but that Defendant was not certain that would happen prior to the deadline to file its Motion
to Strike.

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the Court limits the “testimony of Plaintiff’s experts to those matters identified in the experts’
current reports.” 6 (Dkt. #27 at p. 5).
III.

Daubert Grounds

Defendant argues that Plaintiff’s experts provided insufficient reports to be allowed to testify
as to causation in this case. The Court will address the specific arguments as to each expert.
A. Bell
Defendant argues that Bell should not be allowed to testify as to causation. Plaintiff
maintains that Bell “will not be used to establish causation.” (Dkt. #29 at p. 4). Based on this
representation, Bell will not be permitted to testify as to causation at trial.
B. Becker
Defendant contends that Becker’s report is based on the assumption that hail damage was
concealed by gravel ballast, but argues that Becker does not explain how gravel could conceal hail
damage. Further, Defendant faults Becker for not even attempting to move the gravel to discover
the damage beneath it. Defendant maintains that this conclusion was conclusory and should not
be considered at trial. Finally, Defendant takes issue with the fact that Becker did not explain why
the entire roof must be replaced in its entirety based on minimal hail damage. Upon reviewing
Becker’s report, the Court finds that Becker’s interview with Maurice La Verdure, the owner of
the building and his visit to the Property, coupled with his review of the applicable engineering
guidelines and industry standards provides a sufficiently reliable basis to admit Becker’s testimony
as to causation pursuant to Federal Rule of Evidence 702.
Defendant also asserts that because Becker did not rule out alternative causes, his report is
deficient. Defendant’s argument is similar to that found in Chisesi Brothers Meat Packing

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The Court granted Plaintiff fourteen days to amend its expert designations to fix the Rule 26 deficiencies, not to
change the content or scope of what is in the expert’s report.

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Company, Incorporated v. Westchester Surplus Lines Insurance Company, Civil Action No. 09–
6523, 2010 WL 3720465, at *4 (E.D. La. Sept. 9, 2010). In Chiesi Brothers, the district court
found that an expert’s opinion that a hurricane was the cause of damage done to a roof was
admissible, even though the expert assumed the hurricane was the cause of the damage. Chisesi
Brothers, 2010 WL 3720465, at *4. The district court reasoned that, “[e]limination of alternative
possibilities is one method of arriving at a result reliably, but it is not the only method.” Id. at *4.
Becker’s failure to rule out alternative causes does not render his opinion as to causation
inadmissible under the circumstances. “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
Situated in Leflore Cty., Miss., 80 F.3d 1074, 1077 (5th Cir. 1996). Defendant’s argument goes to
the weight to be given Becker’s testimony, which should be left to the trier of fact. Therefore, the
Court finds that Becker’s testimony should not be stricken.
CONCLUSION
It is therefore ORDERED that Defendant’s Motion to Strike or Limit Expert Testimony
(Dkt. #27) is hereby GRANTED IN PART AND DENIED IN PART. Defendant’s motion is
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granted as to Bell’s testimony regarding causation and to the scope limitation of the Plaintiff’s
expert witnesses.

Plaintiff’s Opposed Motion for Leave to Amend Designation of Expert

Witnesses is hereby GRANTED (Dkt. #30). Plaintiff is also given fourteen days from the date of
this order to supplement its disclosures to remedy the deficiencies noted above.
SIGNED this 19th day of October, 2017.

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AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE
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