Double Diamond Delaware Inc v. Homeland Insurance Company of New York

Filing 145

MEMORANDUM OPINION AND ORDER: The Court DENIES Homeland's 111 motion to strike Jon Hillis, DENIES Homeland's 114 motion to strike Jason Grogan, and GRANTS 117 Homeland's motion to strike Scott Cullen. The Court GRANTS IN PART and DENIES IN PART Double Diamond's 120 motion to strike Edward Steigerwaldt, GRANTS IN PART and DENIES IN PART Double Diamond's 122 motion to strike Thomas Hittle, and GRANTS Double Diamond's 124 motion to strike Bret Vicary. (Ordered by Judge Brantley Starr on 12/23/2020) (jmg)

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
DOUBLE DIAMOND DELAWARE,
INC.,

§
§
§
§
§
§
§
§
§
§
§

Plaintiff,
v.
HOMELAND INSURANCE
COMPANY OF NEW YORK,
Defendant.

Civil Action No. 3:17-CV-01403-X

MEMORANDUM OPINION AND ORDER
This case arises from a 2015 tornadic weather event which damaged Double
Diamond Delaware, Inc. (Double Diamond)’s golf-course community, The Retreat.
The Court ruled on the parties’ motions for partial summary judgment in an earlier
order.

[Doc. No. 105].

The only issue remaining in this case is “the amount

recoverable by [Double Diamond] under the debris removal provisions of the
policies.” 1 Homeland Insurance Company of New York (Homeland) subsequently
filed three motions to strike [Doc. Nos. 111, 114, 117], and Double Diamond also filed
three motions to strike. [Doc Nos. 120, 122, 124]. After careful consideration, and as
discussed below, the Court DENIES Homeland’s motion to strike Jon Hillis,
DENIES Homeland’s motion to strike Jason Grogan, and GRANTS Homeland’s
motion to strike Scott Cullen. The Court GRANTS IN PART and DENIES IN

1

Doc. No. 112 at 6.

1

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PART Double Diamond’s motion to strike Edward Steigerwaldt, GRANTS IN PART
and DENIES IN PART Double Diamond’s motion to strike Thomas Hittle, and
GRANTS Double Diamond’s motion to strike Bret Vicary.
I. Background
Double Diamond’s property was insured under three tiers of coverage.
Steadfast Insurance Company (Steadfast) issued the first tier, which was capped at
$2.5 million. Colony Insurance Company (Colony) issued the second tier, also capped
at $2.5 million. Homeland issued the third tier, which covers damages beyond the $5
million covered by Steadfast and Colony.
In the Court’s summary-judgment order, it found that: (1) the two underlying
insurance policies were exhausted; (2) the value of Double Diamond’s property is not
a ceiling on its recovery; (3) the sublimits in the Steadfast policy are incorporated by
the Homeland Insurance policy; (4) Double Diamond was required to actually replace
damaged property before coverage was available on a replacement-cost basis;
(5) because Double Diamond failed to replace damaged property within three years,
it can only collect the property’s actual cash value; (6) Double Diamond was not
required to incur debris-removal expenses before recovering from Homeland; and
(7) the actual cash value equals the cost to replace less the depreciation of the
damaged property.
The remaining dispute concerns the amount Double Diamond can recover for
debris removal. Recovery for debris removal is limited to “[t]he GREATER of 25% of

2

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the PD [property damage] LOSS or $1,000,000.” 2 So, the recovery for debris removal
requires determining the property-damage loss. And to determine the propertydamage loss, the actual cash value of Double Diamond’s damaged trees must be
determined. 3
Homeland and Double Diamond each filed three motions to strike. The Court
will consider each motion separately.
II. Legal Standard
Federal Rule of Evidence 702 governs the admissibility of expert testimony as
evidence. Rule 702 permits opinion testimony from a witness “qualified as an expert
by knowledge, skill, experience, training, or education” if the expert’s knowledge will
assist the trier of fact, and (1) “the testimony is based on sufficient facts or data;”
(2) “the testimony is the product of reliable principles and methods;” and (3) “the
expert has reliably applied the principles and methods to the facts of the case.” 4 As
a gatekeeper, this Court must permit only reliable and relevant testimony from
qualified witnesses to be admitted as expert testimony. 5 The party offering the expert
testimony has the burden of proof, by a preponderance of evidence, to show that the
testimony is reliable and relevant. 6

2

Doc. No. 113 at 59.

Although other areas of The Retreat suffered damage, those areas make up a minority of
the claim and are not in dispute. See Doc. No. 135 at 5.
3

4

FED. R. EVID. 702.

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993); Wilson v. Woods,
163 F.3d 935, 937 (5th Cir. 1999).
5

6

Mathis v. Exxon Corp., 302 F.3d 448, 459–60 (5th Cir. 2002).

3

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Expert testimony is relevant if it assists the trier of fact in understanding the
evidence or determining a fact in issue. 7 Federal Rule of Evidence 401 further
clarifies that relevant evidence is evidence that has “any tendency to make a fact
more or less probable than it would be without evidence” and “is of consequence in
determining the action.” 8
Expert testimony is reliable if “the reasoning or methodology underlying the
testimony is scientifically valid.” 9 Such testimony must be “more than subjective
belief or unsupported speculation.” 10 In other words, this Court need not admit
testimony “that is connected to existing data only by the ipse dixit of the expert.” 11
The Court also does not need to admit testimony based on indisputably wrong facts. 12
In conducting its analysis, the Court focuses on the reasonableness of the expert’s
approach regarding the matter to which his testimony is relevant and not on the
conclusions generated by the expert’s methodology. 13 The Court normally analyzes
questions of reliability using the five nonexclusive factors known as the Daubert
factors. 14

7

Daubert, 509 U.S. at 591.

8

See Mathis, 302 F.3d at 460 (applying Rule 401 to expert testimony).

9 Knight v. Kirby Inland Marine, Inc., 482 F.3d 347, 352 (5th Cir. 2007) (citing Daubert, 509
U.S. at 592–93).
10

Daubert, 509 U.S. at 590.

11

Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997).

12

Guillory v. Domtar Indus., Inc., 95 F.3d 1320, 1331 (5th Cir. 1996).

13

Daubert, 509 U.S. at 595; Kumho Tire Co. v. Carmichael, 526 U.S. 137, 153–54 (1999).

The five nonexclusive Daubert factors are: (1) whether the expert’s technique can be or has
been tested; (2) whether the method has been subjected to peer review and publication; (3) the known
or potential rate of error of a technique or theory when applied; (4) the existence and maintenance of
14

4

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III. Analysis
Jon Hillis. Double Diamond designated Hillis to opine on the ability to
replace damaged trees with mature trees. Homeland moved to strike Hillis’s
testimony, arguing that it is not relevant and not reliable. [Doc. No. 111]. Homeland
also argues that Hillis’s opinions regarding replacement costs are untimely.
The Court finds that Hillis’s testimony is relevant. Homeland contends that
“at this point in the litigation, whether replacement trees are available, whether it is
possible for [Double Diamond] to replace its trees, and whether those trees will
survive, is wholly irrelevant to any issue remaining before the Court.” 15 This is so,
Homeland argues, because the only issue remaining is the recovery for debris
removal.
But as the Court explained above, to determine the recovery for debris removal,
the parties must determine the property-damage loss. And that requires determining
the actual cash value of Double Diamond’s damaged trees, which in turn requires
determining the replacement cost.

Hillis’s expert testimony contradicts the

testimony of Homeland’s proffered expert, Steigerwaldt. Steigerwaldt concluded that
“it would be physically and practically impossible to replant trees of the same size as
those lost.” 16 Hillis disagreed. He believed that “it certainly is possible to replant
trees of the same size (and at least average size) of those damaged at the Property.” 17
standards and controls; and (5) the degree to which the technique or theory has been generally
accepted in the scientific community. Daubert, 509 U.S. at 593–94.
15

Doc. No. 112 at 10.

16

Doc. No. 113 at 69.

17

Id. at 9.

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Given that the cost to replace the damaged trees with saplings (as Steigerwaldt
recommends) would be less than the cost to replace them with mature trees (as Hillis
recommends), Hillis’s testimony could be relevant in determining the replacement
cost, which will affect Double Diamond’s debris-removal recovery.
That said, Double Diamond expressly states that Hillis “is not being proffered
by Double Diamond to testify regarding the cost to replace the damaged trees.” 18
Presumably, then, Double Diamond only intends to proffer Hillis’s testimony to show
that mature trees could be used to replace the damaged trees and that they would
likely survive. While the relevance of this testimony may be marginal, it is still
relevant because it may cast doubt on Steigerwaldt’s testimony.
Homeland also argues that Hillis’s testimony is unreliable for two reasons:
(1) he provides “no supporting data or methodology regarding the cost to replace
trees,” and (2) he “fails to provide supporting data regarding where nearly 20,000
trees can be obtained or where they will be planted at The Retreat.” 19 This argument
is flawed. First, Double Diamond does not intend to offer Hillis’s testimony on the
cost to replace trees, so the first point is moot. Second, because the discussion about
tree replacement is relevant only to the extent that it is informing debris-removal
recovery, whether trees are available or where they would be planted is irrelevant.
It is merely a hypothetical exercise.

18 Doc. No. 135 at 9. Double Diamond fails to clarify exactly what, then, Hillis is being
proffered to testify about.

19

Doc. No. 112 at 14–16.

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Because Hillis’s testimony is being used merely to opine on the possibility of
replacing damaged trees with mature trees, the reliability of that testimony depends
on the methods used to determine the viability of mature-tree replacement. In his
expert report, Hillis explains that based on his “personal experience and more than
20 years supplying and installing trees up to 20 caliper inches” the “survivability rate
[of mature trees] exceed[s] 95%.” 20 He then goes on to describe the methods of
mature-tree replacement, including boxing and round-ball.
This testimony is not subjective belief or unsupported speculation. It is based
on established methods for mature-tree planting and decades of experience. So, the
Court finds Hillis’s testimony sufficiently reliable to be admissible.

The Court

therefore DENIES Homeland’s motion to strike the testimony of Jon Hillis. 21
Jason Grogan.

Double Diamond designated Grogan to offer opinions

regarding the number of damaged trees at The Retreat and the prior statistical
sampling performed by Bartlett Tree Experts (Bartlett).

Homeland argues that

“Grogan’s opinions are not relevant or reliable and should be excluded.” 22
The Court finds that Grogan’s opinions are relevant. Expert testimony is
relevant if it assists the trier of fact in understanding the evidence or determining a
fact in issue. 23 Because determining the number of damaged trees is necessary to

20

Doc. No. 113 at 69.

Homeland also argued that Hillis’s opinions were untimely. But because Hillis’s opinions
are not being used to address replacement costs, the Court finds the untimeliness argument moot.
21

22

Doc. No. 115 at 11.

23

Daubert, 509 U.S. at 591.

7

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determine the property-damage loss, which will inform the debris-removal recovery,
Grogan’s opinions regarding the number of damaged trees is relevant.
Homeland also argues that Grogan’s opinions are not reliable because his
samples “produced sample-error rates far exceeding industry standards” and because
he “utilize[d] a flawed sample design in 2018 that can only be described as
pseudoscience . . . .” 24 Homeland reminds the Court that it is to “make certain that
an expert, whether basing testimony on 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.” 25 The Court finds that Grogan did just
that.
Although Homeland argues that Grogan’s sample produced error rates
exceeding industry standards, it does not provide evidence of this purported industry
standard, aside from the ipse dixit of its own expert. Double Diamond explains that
the standard error rate described by Homeland’s expert is applicable when
calculating wood volume. But Grogan was not calculating tons of trees; he was
calculating the number of trees. The standard error rate when calculating wood
volume is therefore inapplicable. And even if it were applicable, it lacks any support,
such as a treatise.
Homeland also claims that Grogan’s methods—statistical forestry sampling—
were akin to pseudoscience. It argues this because: (1) Grogan took no photos;

24

Doc. No. 115 at 12–13.

25

Kumho Tire Co., 526 U.S. at 152.

8

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(2) Grogan failed to systematically identify sample locations before visiting The
Retreat; (3) Grogan did not plant stakes; (4) Grogan did not record the size of species
of damaged trees; and (5) Grogan could not differentiate between trees damaged
before and after the storm.
As a threshold matter, the Court recognizes that statistical forestry sampling
is not pseudoscience. It is a recognized forestry tool used by governments and private
forestry management when physical inventory is impossible. 26
The Court now considers each of Homeland’s concerns.
Photography. While Grogan did not take photos, this doesn’t convert his
sample into pseudoscience. His method is statistical sampling; statistics do not
require photography.
Systematic Identification.

Homeland’s allegation that Grogan didn’t

identify sample locations before visiting The Retreat is contradicted by Grogan’s
deposition:
Q:

What did you do to prepare for [the site visit in 2018]? You had no
written procedures, but what did you have?

A:

I don’t remember specifically what had been provided to me prior to the
visit. . . . I had viewed [the property] on aerial photography and had done
very preliminary mapping of the site . . . .” 27

Grogan reviewed aerial photography and conducted preliminary mapping,
though he acknowledged that he “went to the site with very little knowledge.”28

26

See HARRY V. WIANT, JR., ELEMENTARY TIMBER MEASUREMENT 5.

27

Doc. No. 116 at 336–37 (85:11–86:7).

28

Id. at 336 (85:22).

9

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Importantly, upon arrival, Grogan “drove through the property and got a general idea
of the topography. . . . [T]hen [he] went to various locations and established samples
of one-tenth acre circular plot.” 29
Failure to Plant Stakes. Because Grogan did not plant stakes, Homeland
argues that it cannot reproduce his sample. But he did provide Homeland with GPS
coordinates, which could have been used to recreate his sample, not “exactly” but “in
a very similar manner.” 30
Failure to Record Sizes/Species of Trees. Grogan did not record the size
and species of trees because it was outside the scope of his report. Bartlett, who
performed the initial sampling, had already recorded the size and species of trees.
And Grogan was retained to evaluate Bartlett’s prior statistical work, which did not
require documenting the size and species of damaged trees, but rather determining
the overall number of damaged trees.
Inability to Distinguish. If true, Homeland’s claim that Grogan could not
distinguish between trees damaged before or after the storm would have the greatest
impact on the reliability of his testimony. After all, determining the number of trees
damaged in the 2015 storm event is essential to determining the debris-removal
recovery. But Grogan explained in his deposition that he can determine when a tree
was damaged:
Q:

What I am getting at is you have no way to determine whether a tree
you looked at during your inventory was or was not damaged prior to
the April event; correct?

29

Id. at 317 (66:3–25).

30

Id. at 321 (70:11–15).

10

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A:

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There are indicators that you can look for that give you a general idea
of the age since damage. If there is a significant amount of decay, just
from experience, look at the bark, if it is sloughing off; if there is signs
of wood rotters, that sort of thing, you that that damage has taken many
years for that amount of decay to occur. 31

In light of the five factors outlined in Daubert, the Court finds Grogan’s
testimony to be reliable. Importantly, to the extent that Grogan’s sample contains a
range of the number of damaged trees, this goes to the weight of the evidence, not its
admissibility.

The Court therefore DENIES Homeland’s motion to strike the

opinions of Grogan.
Scott Cullen.

Double Diamond designated Scott Cullen as an expert

regarding the value of the damaged trees. Homeland challenges both the relevance
and reliability of Cullen’s testimony.
Homeland argues that because Cullen’s “opinions are limited to valuing
[Double Diamond]’s damaged trees and do [not] include conclusions regarding debris
removal costs,” the testimony is not relevant. 32 The Court disagrees. For the reasons
explained in the Court’s analysis above, determining the value of the damaged trees
is necessary to determine the property-damage loss, which informs the debrisremoval recovery.

For that reason, the Court finds that Cullen’s testimony is

relevant.
Homeland also contends that Cullen’s testimony is not reliable, in part because
it relies on Grogan’s sample. Because the Court found Grogan’s sample to be reliable,

31

Id. at 351–52 (100:23–101:10).

32

Doc. No. 118 at 11.

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this argument is moot. But Homeland’s reliability argument doesn’t end there; it also
asserts that Cullen’s opinions are unreliable because “his valuation methods should
not be used to value undesirable trees in a forest setting, and he arbitrarily applies
depreciation value to figures without any support.” 33
Testimony is reliable when “the reasoning or methodology underlying the
testimony is scientifically valid.” 34 Such testimony must be “more than subjective
belief or unsupported speculation.” 35 Here, Homeland argues that Cullen’s use of the
Trunk Formula Method is inappropriate because that method is typically limited to
“residential and urban landscape settings.” 36 Because much of The Retreat was
undeveloped forest land, this method is therefore not the accepted method to
determine the value of (at least many of) the damaged trees.
Double Diamond urges that The Retreat is not a forest, but rather a private
golf community. While that may be true to an extent, it ignores the reality that a
great portion of The Retreat was undeveloped land meeting the United States Forest
Service’s definition of forest land. And, according to The Guide for Plant Appraisal,
the Trunk Formula Method is an inappropriate method to value the cost of the trees
in forest land.

33

Id.

34

Knight, 482 F.3d at 352 (citing Daubert, 509 U.S. at 592–93).

35

Daubert, 509 U.S. at 590.

36 GUIDE FOR PLANT APPRAISAL, COUNCIL OF TREE & LANDSCAPE APPRAISERS (Stephanie
Ebersohl, et al. eds., 10th ed. 2019).

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Because Cullen’s conclusions were based on a method rejected by the scientific
community for use in valuing trees in a forest setting, the Court finds Cullen’s
testimony unreliable.
The Court does not reach Homeland’s depreciation arguments because it finds
that the underlying methodology was unreliable, which would necessarily affect the
results of the depreciation. The Court therefore GRANTS Homeland’s motion to
strike the testimony of Cullen.
Edward Steigerwaldt. Double Diamond seeks to exclude the testimony of
Steigerwaldt, Homeland’s expert. Steigerwaldt offered opinions on two issues: (1) the
value of the damaged trees, and (2) the cost and method of debris removal. Double
Diamond claims that Steigerwaldt’s testimony should be excluded because he used
the improper method of calculating tree value in light of the Court’s summary
judgment order, making the value estimates not relevant, and he lacks the necessary
qualifications to opine on debris-removal.
To determine the value of the damaged trees, Steigerwaldt looked to the
property value. But the Court’s most recent summary judgment order explained that
the proper calculation of actual cash value is the cost of repair or replacement less
depreciation. Property value is not a consideration. Steigerwaldt states that he did
not use the Court’s method:
Q.

Okay. And in rendering your opinions in your reports or in this case,
did you use a definition of actual cash value as replacement cost minus
depreciation?

13

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No. 37

And in his expert report, he noted: “[t]he appropriate methodology to determine
[tree replacement cost value and tree actual cash value] can only be accomplished
within the broader, overall property value context.” 38

Homeland contends that

“Steigerwaldt’s opinion is directly relevant to the cost to actually replace trees at The
Retreat with a proven approach.” 39 But given that Steigerwaldt’s opinions rely on an
improper metric for determining actual cash value, they are not relevant.
Homeland also argues that Steigerwaldt’s opinions are relevant to the extent
of its defense to Double Diamond’s claim that it violated Chapter 541 of the Texas
Insurance Code.

Homeland relied on Steigerwaldt’s report to make its claim

determination. That report is now needed, Homeland argues, for its Chapter 541
defense, even if the jury does not use it to inform its calculation of tree value. The
Court agrees with Homeland. Expert testimony is relevant if it assists the trier of
fact in understanding the evidence or determining a fact in issue. 40 Steigerwaldt’s
report is relevant to the extent that it will assist the jury in determining whether
Homeland’s defense is meritorious.
Double Diamond also challenges Steigerwaldt’s opinions on the cost and
method of debris removal. It argues that he is not qualified to opine on debris removal
because he lacks the higher degree of knowledge, skill, experience, training or

37

Doc. No. 121, Exhibit 2 at 75:19–23.

38

Doc. No. 121, Exhibit 1 at 5.

39

Doc. No. 130 at 12.

40

Daubert, 509 U.S. at 591.

14

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education required of an expert. 41

Page 15 of 24 PageID 8551

While Double Diamond acknowledges

Steigerwaldt’s qualifications with respect to forest appraisal, it alleges that he cannot
“identify any prior testimony, experience, publication, presentation, or certification
relating to tree debris removal.” 42 While Steigerwaldt’s CV may lack specific debrisremoval certifications, he has owned and managed a land-services company for
roughly 40 years. That company “manages roughly 350,000 acres of investment
timberland.” 43 Over 40 years, Steigerwaldt has been involved in debris removal. 44
Qualifications may derive from knowledge and experience, which Steigerwaldt has
amassed over his career. Accordingly, the Court finds that he is qualified to offer
opinions on debris removal.
Finally, Double Diamond argues that Steigerwaldt’s opinions regarding debris
removal are inadmissible because they are speculative and without factual basis. It
alleges

this

because

Steigerwaldt’s

opinions

“are

simply

the

repeated,

unsubstantiated, and untested opinions of an undesignated third party.” 45
Steigerwaldt’s export report on debris removal is limited to the following:
To assess cleanup costs, high resolution aerial photography was
provided to Monty Cain of Burleson Tree Service in Burleson, Texas.
Burleson Tree Service provides tree care and tree damage cleanup
throughout the state of Texas. Mr. Cain inspected The Retreat in early
October 2016 and provided his estimate of reasonable cleanup cost.
Monty Cain was of the opinion that the total cleanup on the golf course’s
unsold lots and +/- 400 acres of potential development could be
41

See FED. R. EVID. 702.

42

Doc. No. 120 at 12.

43

Doc. No 130 at 14.

44

Id. at 16.

45

Doc. No. 120 at 15.

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accomplished for $1,500,000 to $2,000,000. Based on our experience
with pruning clearing and chipping, we believe a figure of $1,500,000 is
appropriate.
Expert testimony is reliable when it is “more than subjective belief or
unsupported speculation.” 46 The limited opinion on debris removal contained in
Steigerwaldt’s report is lacking any description of the methodology used to reach the
conclusion. For example, it lacks any mention of the tons of trees needing to be
removed, the hours required to complete the project, the specialized tools needed, etc.
Instead, it relies on Monty Cain’s opinion for a bare conclusion of the costs of debris
removal. Homeland did not designate Monty Cain as an expert, and he dodged
Double Diamond’s attempts at service. With no basis for the methods used to reach
his conclusion, other than a reference to a third party’s opinion, Steigerwaldt’s
opinion on debris removal is unreliable.
To the extent that Steigerwaldt’s report is offered for Homeland’s Chapter 541
defense, the Court finds that it is relevant and DENIES the motion to strike. To the
extent that it is offered to inform the actual cash value of the damaged trees, the
Court finds that it is not relevant and GRANTS the motion to strike. Steigerwaldt’s
opinions regarding debris removal are unreliable. Accordingly, the Court GRANTS
the motion to strike with respect to debris-removal opinions.
Thomas Hittle. Hittle offers opinions on the number of damaged trees and
the condition of the trees, including whether they were damaged by an event other

46

Daubert, 509 U.S. at 590.

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than the tornadic weather event in April 2015. Double Diamond challenges the
reliability of both these opinions.
Hittle used a sampling approach to determine the number of damaged trees.
The parties dispute whether Hittle’s approach was “remote sensing” or “aerial photo
interpretation,” but acknowledge that the two are interrelated. Essentially, Hittle
“viewed aerial photography of the damage on his computer screen and placed a point
‘where each damaged tree was observed on the 2016 imagery.’” 47
Double Diamond contends that Hittle’s sampling approach is merely “a way of
estimating a tree count, and must be validated, just as any other sampling or
estimate.” 48 To have an accurate Count, Double Diamond argues, Hittle needed to
verify the accuracy of his sampling by conducting a ground visitation. Homeland, on
the other hand, argues that Hittle’s approach was accurate because he conducted an
initial “trial limited tree mapping” using geographic-information-system application
and because he “verified his opinions regarding the number of damaged trees by
referencing the materials, information, and photographs gathered during his field
inspections.” 49
Hittle admits that he did not return to the property after conducting his
sampling approach:
Q.

So then after you indicated points where you say it was one damaged
tree, did you then go back to the property to verify that, in fact, it was
only one tree, as opposed to self [several] trees?

47

Doc. No. 141 at 2 (quoting Doc. No. 123, Exhibit 1 at 7).

48

Doc. No. 122 at 7.

49

Doc. No. 128 at 11.

17

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A.

Page 18 of 24 PageID 8554

No. 50

He declined to do so because it “would have been extensive and impractical.” 51
To be reliable, an expert’s opinion on scientific knowledge, like Hittle’s, should include
“proof that the principle supports what it purports to show, i.e. that it is valid.” 52
Validity can be measured by (1) whether the theory can be tested, (2) whether it has
been subjected to peer review or publication, (3) the known or potential rate of error,
or (4) whether the technique has received general acceptance. 53
Here, the theory can be tested. At least, it could have been tested at the time;
whether the damaged trees still exist such that the sampling could be verified now is
unclear. It has not been subjected to peer review or publication, but as an expert
report, this factor is not relevant. The known or potential rate of error is unknown
precisely because Hittle failed to verify his findings by conducting a ground visitation.
The extent of the availability of information on error rate is Grogan’s contradictory
findings. The sampling technique has general acceptance; however, it is normally
“coupled with ground visitation to check the accuracy of the interpretation.” 54
To decide whether Hittle’s testimony is reliable, the Court must decide
whether “the reasoning or methodology underlying the testimony is scientifically
valid.” 55 The Court finds that Hittle’s sampling method is scientifically valid (neither

50

Doc. No. 123, Exhibit 2 at 37:19–23.

51

Id. at 38:4–5.

52

United States v. Posado, 57 F.3d 428, 433 (5th Cir. 1995).

53

Id.

54

JAMES B. CAMPBELL, INTRODUCTION TO REMOTE SENSING 355, 380–81 (2d ed. 1996).

55

Knight, 482 F.3d at 352 (citing Daubert, 509 U.S. at 592–93).

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party argues that it is not), but his failure to conduct ground surveys to check the
accuracy of the aerial-photo interpretation poses a problem for reliability. Testimony
that is based on mere speculation is not reliable.

And without conducting the

recommended ground visitation to verify the results of his sample, Hittle’s testimony
regarding the number of damaged trees amounts to mere speculation. This is so even
though Hittle visited the property beforehand to conduct a limited mapping. Visiting
the property beforehand does not assist in verifying results that had not yet even
been created; to do that, Hittle needed to visit the property after. He did not.
Accordingly, the Court finds that Hittle’s testimony regarding the number of
trees is unreliable.
Double Diamond also seeks to exclude Hittle’s testimony regarding the
condition of the damaged trees and whether they were damaged by other events. The
thrust of Double Diamond’s argument is that Hittle “supplied no factual basis as to
the number of trees damaged by ‘fires,’ ‘general dieback’ and ‘mortality from natural
causes.’” 56 Homeland argues that “the basis of Mr. Hittle’s opinions regarding tree
damage as a result of other weather events are based on his field inspections and
extensive experience in the industry.” 57
It is essential that “experts . . . give a factual predicate for their opinions in
their reports.” 58 The Court need not admit testimony “that is connected to existing

56

Doc. No. 122 at 13.

57

Doc. No. 128 at 20.

58 Space Maker Designs, Inc. v. Weldon F. Stump & Co., Inc., 2020 WL 21805274 at *3 (N.D.
Tex. Mar. 13, 2003) (Sanders, J.).

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Page 20 of 24 PageID 8556

data only by the ipse dixit of the expert.” 59 In determining whether testimony is
reliable, the focus should be on the reasonableness of the expert’s approach regarding
the matter to which his testimony is relevant and not on the conclusions generated
by the expert’s methodology. 60
An excerpt regarding the condition of trees reads:
Evidence of fire, as well as general dieback and mortality from natural
causes such as drought conditions, left trees weakened or dead. Local
news articles include mention of fires in the area in early October 2011,
and the broader Texas area experienced drought conditions from a
period of mid 2010 into 2015.
The Court finds that Hittle’s opinions on tree condition are reliable. His
opinions are not based merely on speculation; they are based on his extensive
experience, aerial sampling, and field inspections. The excerpted conclusion
demonstrates that news articles regarding fires and drought conditions also
confirmed Hittle’s observations. These are sufficient factual bases to ensure
the reliability of Hittle’s testimony. Accordingly, the Court finds that Hittle’s
opinions regarding tree condition are reliable.
The Court therefore GRANTS Double Diamond’s motion to strike with
respect to Hittle’s testimony on the number of trees and DENIES Double
Diamond’s motion to strike with respect to Hittle’s testimony on the condition
of trees.

59

Gen. Elec. Co., 522 U.S. at 146.

60

Daubert, 509 U.S. at 595; Kumho Tire, 526 U.S. at 153–54.

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Bret Vicary.

Page 21 of 24 PageID 8557

Homeland retained Vicary as a rebuttal witness to

dispute Cullen’s findings. “Specifically, Mr. Vicary analyzed the methodology
and conclusions of both Mr. Steigerwaldt and Mr. Cullen to 1) discuss industry
standards regarding the reasonableness of multiple approaches to valuing
damaged trees . . . and b) analyze Mr. Cullen’s application of [trunk formula
method] to the facts of this case.” 61 Double Diamond now moves to strike
Vicary’s opinions on (1) the value of trees; (2) the cost of debris removal; and
(3) the number of trees damaged.
As a threshold matter, the Court addresses Double Diamond’s assertion
that all of Vicary’s opinions are needlessly cumulative.

Double Diamond

argues that Vicary’s “opinions are nothing more than an adoption of the
opinions of Homeland’s other experts (Steigerwaldt and Hittle) and a criticism
of Double Diamond’s experts (Grogan and Cullen).” 62 Homeland contends that
Vicary’s opinions are not needlessly cumulative because he was retained
specifically to address the alleged flaws in Cullen’s reasoning.

Unlike

Homeland’s other experts, Vicary specifically analyzes Cullen’s methodology
and “his report provides almost a page-by-page analysis and rebuttal of Mr.
Cullen’s depreciation method . . . .” 63 In other words, while Steigerwaldt and
Hittle may have interacted to a limited degree with Cullen’s report, Vicary’s
entire purpose as an expert was to rebut it.
61

Doc. No. 126 at 10.

62

Doc. No. 124 at 16.

63

Doc. No. 126 at 23.

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Federal Rule of Evidence 403 states that “[t]he court may exclude
relevant evidence if its probative value is substantially outweighed by a danger
of . . . needlessly presenting cumulative evidence.” 64 While the Court has
discretion to exclude cumulative testimony, the Fifth Circuit has not
“impose[d] a precise limit on the number of experts who can testify in a given
area.” 65
The Court finds that the probative value of Vicary’s opinions is not
substantially outweighed by the danger of needlessly presenting cumulative
evidence. While other experts touch on issues discussed by Vicary, the primary
purpose of Vicary’s opinions is different. There may be some overlap of opinion,
but not to the extent that the Federal Rules contemplate. And given that the
Fifth Circuit has not set a limit on the number of experts, this Court finds no
danger in allowing Vicary’s testimony.
Double Diamond also argues that all of Vicary’s opinions should be
excluded as irrelevant because they are tied to the market value of the
property. In this Court’s most recent summary judgment order, it held that
the proper calculation of actual cash value was the cost of repair or
replacement less depreciation. The market value of The Retreat, therefore,
does not play a role in determining the actual cash value of Double Diamond’s
losses.

64

FED. R. EVID. 403.

65

Leefe v. Air Logistics, Inc., 876 F.2d 409, 411 (5th Cir. 1989).

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Vicary’s report did not use this formulation of actual cash value:
Q.

In this case, did you provide an independent analysis concerning
actual cash value?

A.

No.

...
Q.

Do you understand the general theory of replacement costs minus
depreciation equals actual cash value?

A.

I don’t understand that.

Q.

Do you have a master’s in Finance?

A.

I have a master’s in Business Administration.

Q.

You have a master’s in Business Administration, and it’s your
testimony to the ladies and gentlemen of the jury, that you do not
understand the theory of replacement cost minus depreciations
equals actual cash value? Is that your testimony?

A.

That’s my testimony. 66

Vicary admitted in his deposition that (1) he did not conduct his analysis
using this Court’s mandated method of actual cash value; and (2) he does not
understand actual cash value. Vicary was retained as a rebuttal witness to
analyze Cullen’s conclusions. But Vicary’s critiques of Cullen’s report are all
couched in market value—which is not a relevant consideration in this case.
While it may be true that in typical forestry settings, market value is an
essential consideration, that consideration is not present in this litigation. Put
another way, the Court does not insinuate that Vicary’s conclusions are

66

Doc. No. 125, Exhibit 2 at 104:18–21, 89:3–17.

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Page 24 of 24 PageID 8560

factually wrong, but they are not relevant to the resolution of the issues in this
case because they spring from the idea that market value is an essential
consideration.
Accordingly, the Court GRANTS Double Diamond’s motion to strike the
testimony of Bret Vicary because it is not relevant to determining the propertydamage loss according to this Court’s ruling on actual cash value.
IV. Conclusion
For the foregoing reasons, the Court DENIES Homeland’s motion to
strike Jon Hillis, DENIES Homeland’s motion to strike Jason Grogan, and
GRANTS Homeland’s motion to strike Scott Cullen. The Court GRANTS IN
PART and DENIES IN PART Double Diamond’s motion to strike Edward
Steigerwaldt, GRANTS IN PART and DENIES IN PART Double Diamond’s
motion to strike Thomas Hittle, and GRANTS Double Diamond’s motion to
strike Bret Vicary.

IT IS SO ORDERED this 23rd day of December 2020.

___________________________________
BRANTLEY STARR
UNITED STATES DISTRICT JUDGE

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