Fiberco, Inc. v. Acadia Insurance Company
MEMORANDUM OPINION AND ORDER denying 53 Motion to Strike the Expert Testimony of David Day. (Ordered by Judge Brantley Starr on 11/15/2023) (axm)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
ACADIA INSURANCE COMPANY
and UNION STANDARD LLOYDS
d/b/a UNION STANDARD
Civil Action No. 3:22-CV-0525-X
MEMORANDUM OPINION AND ORDER
Before the Court is Defendants Acadia Insurance Company and Union
Standard Lloyds’s 1 motion to strike the expert testimony of David Day. (Doc. 53).
After careful consideration, and as discussed below, the Court DENIES the motion.
The Court ORDERS Plaintiff FiberCo, Inc., at its own cost, to afford Acadia the
opportunity to redepose David Day, if Acadia chooses to do so.
This is an insurance coverage dispute. FiberCo’s building was insured under
a policy issued by Acadia effective from April 10, 2020 to April 10, 2021 (the “Policy”). 2
In April 2020, the building suffered damage from a hailstorm while the Policy was
The Court’s Order on the parties’ motions for summary judgment concludes that FiberCo did
not establish that it had contractual standing to sue Union Standard in this matter. Therefore, the
Court dismisses Union Standard as a party to this action.
Doc. 40-1 at 70.
in effect. 3 FiberCo filed a claim with Acadia for the hail damage to the building. 4
Acadia’s engineer found at least seven places on the roof of the building with openings
at seams of overlapping metal panels, reducing the water shedding capability of the
roof in those areas, and additional hail dents. 5 Acadia denied FiberCo’s claim and
explained that although the seven open seams were a covered loss, the dents to the
roof were excluded by the Policy’s cosmetic damage exclusion, and therefore the
amount of the covered loss fell below the Policy’s deductible amount. 6 FiberCo filed
During discovery, FiberCo’s expert, David Day, provided an expert report,
concluding, in relevant part, that all of the building’s metal roofing needed to be
replaced due to the functional damage caused by hail and the wetted insulation
needed to be replaced. 8 Day also explained that the hail dents which have not opened
seams will cause accelerated corrosion and reduce the useful life of the roof by 25%. 9
FiberCo provided initial expert designations and first amended designations to
Acadia and Union, which listed Day as a retained expert. 10 Acadia and Union then
deposed Day and found that Day’s assistant, not Day, had conducted the investigation
Doc. 40-1 at 3–4.
Doc. 55-2 at 5.
Doc. 61-1 at 313–319, 326, 350–353, 402–404 & 440–441.
Docs. 30, 33.
of FiberCo’s building. 11 Subsequently, Day personally inspected FiberCo’s building
for the first time. 12 FiberCo then filed its Second Amended Expert Designations, after
the deadline and without the Court’s leave, 13 which did not include a supplemental
report or declaration from Day at that time. 14 The second designations explain that
Day’s testimony will rely on his previous deposition and his later inspection of the
Acadia and Union Standard filed a motion to strike the expert testimony of
David Day because they object to Day’s characterization of the dents as “functional”
and to the scope and reasonableness of necessary repairs to FiberCo’s building. 16
They contend that Day’s opinions are not based on reliable facts or data, are not the
product of reliable scientific principles and methods, have not applied any reliable
principles and methods to the facts of the case, and do not assist the trier of fact. 17
They also contend that Day’s second expert designation is untimely and prejudicial. 18
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
Doc. 55-1 at 5–6.
Doc. 38 at 3.
14 FiberCo’s response to the motion to strike includes a declaration from Day, which Acadia
and Union contend is in effect a new expert report. Docs. 61-1 at 313, 65 at 5.
Doc. 38 at 3.
Doc. 54 at 2.
Doc. 65 at 3–7.
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.” 19
gatekeeper, this Court must permit only reliable and relevant testimony from
qualified witnesses to be admitted as expert testimony. 20 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. 21
Expert testimony is relevant if it assists the trier of fact in understanding the
evidence or determining a fact in issue. 22 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.” 23
Expert testimony is reliable if “the reasoning or methodology underlying the
testimony is scientifically valid.” 24 Such testimony must be “more than subjective
belief or unsupported speculation.” 25 In other words, this Court need not admit
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).
Mathis v. Exxon Corp., 302 F.3d 448, 459–60 (5th Cir. 2002).
Daubert, 509 U.S. at 591.
See Mathis, 302 F.3d at 460 (applying Rule 401 to expert testimony).
Knight v. Kirby Inland Marine Inc., 482 F.3d 347, 352 (5th Cir. 2007) (citing Daubert, 509
U.S. at 592–93).
Daubert, 509 U.S. at 590.
testimony “that is connected to existing data only by the ipse dixit of the expert.” 26
The Court also does not need to admit testimony based on indisputably wrong facts. 27
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. 28 The Court normally analyzes
questions of reliability using the five nonexclusive factors known as the Daubert
The crux of the dispute here concerns the reliability of Day’s testimony and the
timeliness of the second amended expert designations. As an initial matter, however,
Day is clearly qualified, and his reports are relevant to the action. Day has a Bachelor
of Science in Construction and is a registered professional engineer and an expert in
foundation and structural defects in residential and commercial construction. 30 He
has been a structural forensic engineer since 1998 and has performed over 1,000
structural forensic inspections, and at least half are wind/hail assessment
inspections. Day is the President and Chief Engineer for CASA Engineering, L.L.C.,
and has been designated a Diplomate in Forensic Engineering Board by the National
Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997).
Guillory v. Domtar Indus. Inc., 95 F.3d 1320, 1331 (5th Cir. 1996).
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
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.
Doc. 61-1 at 313–14.
Academy of Forensic Engineers. 31 He is therefore qualified, and Acadia and Union
do not raise any issues concerning Day’s qualifications. 32
His reports are also
relevant to the issues in this case, in fact, they are highly relevant. Day’s report
provides information concerning whether the building suffered hail damage and the
extent of the damage—both issues are the heart of this dispute.
testimony is relevant because it will assist the trier of fact in determining facts in
Testimony is reliable when “the reasoning or methodology underlying the
testimony is scientifically valid.” 34 Acadia and Union urge the Court to strike Day’s
expert testimony because his opinions that accelerated corrosion and microfractures
are not supported by a reliable source or data and are contrary to the publications
Day relies upon. 35 FiberCo responds that these opinions are based on Day’s personal
observations and experience, which renders the defendants’ arguments appropriate
for cross-examination but is not a reason to strike Day’s testimony. 36 The Court
agrees with FiberCo. Courts are to approach these disputes with deference to the
Id. at 320–22.
See Docs. 54, 65.
Acadia and Union’s only argument concerning the relevancy of Day’s testimony is that Day
did not consider the cosmetic damage exclusion in the Policy while rendering his opinions. See Doc.
54 at 8. But the scope of the Policy is not what Day’s opinion is relevant for. Instead, his testimony
aids the factfinder in determining whether the building suffered hail damage and the extent of the
damage—not interpreting the Policy’s text.
34 Knight v. Kirby Inland Marine Inc., 482 F.3d 347, 352 (5th Cir. 2007) (citing Daubert, 509
U.S. at 592–93).
Doc. 54 at 9–13.
Doc. 60 at 22–23.
jury’s role as the arbiter of conflicting opinions. 37 Generally, “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.” 38
At bottom, the defendants seek to strike Day because they disagree with his
application of the scientific methodology to the facts of this case. Essentially, they
contend that Day misinterprets the publications he relies upon. 39 “[T]he traditional
and appropriate means of attacking shaky but admissible evidence” are “[v]igorous
cross-examination, presentation of contrary evidence, and careful instruction on the
burden of proof[.]” 40 The Court therefore DENIES Acadia and Union’s motion to
The Court, however, does take issue with the untimeliness of FiberCo’s second
amended expert designations, failure to ask this Court for leave, and misrepresenting
that Day had examined and inspected the property when he had not personally done
so. Acadia would be unfairly prejudiced without the opportunity to depose Day after
he has inspected the property. This is especially true considering FiberCo led Acadia
to believe Day had inspected the property prior to Day’s deposition. Therefore, the
Court ORDERS that Acadia be afforded the opportunity to redepose Day, if it chooses
to, at FiberCo’s expense.
Viterbo v. Dow Chem. Co., 826 F.2d 420, 422 (5th Cir. 1987).
See Doc. 54 at 9–13.
Daubert, 509 U.S. at 596.
The Court DENIES the motion to strike expert David Day. (Doc. 53). The
Court ORDERS Plaintiff FiberCo, Inc., at its own cost, to afford Acadia the
opportunity to redepose David Day, if Acadia chooses to do so.
IT IS SO ORDERED this 15th day of November, 2023.
UNITED STATES DISTRICT JUDGE
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