Arlington Southern Hills, LLC v. The American Insurance Company
Filing
100
MEMORANDUM OPINION and ORDER... For the reasons stated above, the Court denies Defendants Motion to Exclude Testimony of Howard Altschule (ECF No. 40); denies Defendants Motion to Exclude Testimony of Sean Peatrowsky (ECF No. 43); denies Defendants Motion to Exclude Testimony of Tom Irmiter (ECF No. 46); and denies Plaintiffs Motion to Exclude Testimony of Tim Marshall (ECF No. 49). See Order for further specifics. (Ordered by Judge Reed C O'Connor on 9/12/2014) (krg)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
ARLINGTON SOUTHERN HILLS,
LLC,
Plaintiff,
v.
THE AMERICAN INSURANCE
COMPANY,
Defendant.
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Civil Action No. 4:13-cv-676-O
MEMORANDUM OPINION AND ORDER
Before the Court are Defendant The American Insurance Company’s (“Defendant”) Motion
to Exclude Testimony of Howard Altschule (ECF No. 40), filed August 15, 2014; Motion to Exclude
Testimony of Sean Peatrowsky (ECF No. 43), filed August 15, 2014; Motion to Exclude Testimony
of Tom Irmiter (ECF No. 46), filed August 15, 2014; and Plaintiff Arlington Southern Hills, LLC’s
(“Plaintiff”) Motion to Exclude Testimony of Tim Marshall (ECF No. 49), filed August 18, 2014.1
For the reasons stated below, the Court denies Defendant’s Motion to Exclude Testimony
of Howard Altschule (ECF No. 40); denies Defendant’s Motion to Exclude Testimony of Sean
1
More fully before the Court are Defendant’s Brief and Appendix in Support of its Motion to
Exclude Howard Altschule (ECF Nos. 41-42); Defendant’s Brief and Appendix in Support of its Motion to
Exclude Sean Peatrowsky (ECF Nos. 44-45); Defendant’s Brief and Appendix in Support of its Motion to
Exclude Tom Irmiter (ECF Nos. 47-48); Plaintiff’s Brief and Appendix in Support of its Motion to Exclude
Tim Marshall (ECF Nos. 50-51); Plaintiff’s Brief and Appendix in Response to Motion to Exclude Howard
Altschule (ECF No. 72-73); Plaintiff’s Brief and Appendix in Response to Motion to Exclude Sean
Peatrowsky (ECF No. 70, 74); Plaintiff’s Brief and Appendix in Response to Exclude Testimony of Tom
Irmiter (ECF No. 71, 75); Defendant’s Brief in Response to Motion to Exclude Tim Marshall (ECF No. 80);
Defendant’s Reply to Motion to Exclude Howard Altschule (ECF No. 88); Defendant’s Reply to Motion to
Exclude Sean Peatrowsky (ECF No. 89); Defendant’s Reply to Motion to Exclude Tom Irmiter (ECF No.
90); and Plaintiff’s Reply to Motion to Exclude Tim Marshall (ECF No. 93).
Peatrowsky (ECF No. 43); denies Defendant’s Motion to Exclude Testimony of Tom Irmiter (ECF
No. 46); and denies Plaintiff’s Motion to Exclude Testimony of Tim Marshall (ECF No. 49).
I.
BACKGROUND
Defendant issued a property and general liability coverage insurance policy to Plaintiff
covering any direct physical loss of or damage to Plaintiff’s apartment complex located in Arlington,
Texas. See App. Def.’s Mot. Partial Summ. J. (Insurance Policy) 18-19, 48, ECF No. 24-1. The
policy covered the period from February 7, 2011, to February 7, 2012. Id. at 18. Prior to issuing the
policy, Defendant performed a Roof Survey Checklist on Plaintiff’s property and determined that
although the roof was “beginning to show age and leak in some areas,” there were no broken or
missing tiles or previous damage from wind or hail. App. Pl.’s Br. Supp. Resp. Ex. G (Checklist)
87-88, ECF No. 27.
On May 24, 2011, there was a wind and hail storm (the “May storm”) in Arlington, Texas.
App. Def.’s Mot. Partial Summ. J. (Seal Dep.) 206 at 47:1-4, ECF No. 24-5. Plaintiff contends that
as a result of the storm, the tenants began to complain more frequently about roof leaks. App. Pl.’s
Br. Supp. Resp. Ex. H (Hehar Dep.) 100:4-11, ECF No. 27. On May 30, 2011, Plaintiff submitted
a claim to Defendant for damage to the roofing of the apartment buildings reportedly caused by the
May storm. App. Pl.’s Br. Supp. Resp. Ex. F (Kaufman Dep.) 69:20-23, ECF No. 27. The claim
was assigned to Senior Property Adjuster Eric Seal who later hired an engineer to inspect Plaintiff’s
property. App. Def.’s Mot. Partial Summ. J. (Seal Dep.) 198 at 15:7, 201 at 29:14-23, 203 at 35:2025, ECF No. 24-5. The engineer determined that the storm did not cause the instant damage to the
apartment buildings’ roof tiles. App. Def.’s Mot. Partial Summ. J. (Fireman’s Fund Letter) 235-236,
ECF No. 24-6. On September 22, 2011, Defendant ultimately concluded that, although there was
covered damage to the property, the damage was not in excess of the deductible in Plaintiff’s policy.
App. Def.’s Mot. Partial Summ. J. (Seal Dep.) 221 at 107:21-108:1, ECF No. 24-5. Defendant
closed the claim and did not pay Plaintiff. App. Def.’s Mot. Partial Summ. J. (Fireman’s Fund
Letter) 231, ECF No. 24-6. Plaintiff brought the instant suit seeking reimbursement.
Defendant now moves to exclude the testimony of: (1) Howard Altschule who will testify
about the size of the hail that fell on the property; (2) Sean Peatrowsky who will testify about the
cause of the damage to the property and the appropriate repairs to the property; and (3) Tom Irmiter
who will testify about the estimated damages and scope of repairs to the property. Plaintiff moves
to exclude the testimony of Tim Marshall who will testify about the size of hail that fell on the
property. The motions have been fully briefed and are ripe for determination.
II.
LEGAL STANDARD
Federal Rule of Evidence 702 governs the admissibility of expert testimony. Huss v. Gayden,
571 F.3d 442, 452 (5th Cir. 2009). This rule provides:
If scientific, technical, or other specialized knowledge will assist the trier of
fact to understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training, or education,
may testify thereto in the form of an opinion or otherwise, if (1) the testimony
is based upon sufficient facts or data, (2) the testimony is the product of
reliable principles and methods, and (3) the witness has applied the principles
and methods reliably to the facts of the case.
Fed. R. Evid. 702. Effective December 1, 2000, Rule 702 was amended to incorporate the principles
first articulated by the Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.
579 (1993). See Fed. R. Evid. 702, adv. comm. notes (2000). Under Daubert, expert testimony is
admissible only if the proponent demonstrates that: (1) the expert is qualified; (2) the evidence is
relevant to the suit; and (3) the evidence is reliable. See Watkins v. Telsmith, Inc., 121 F.3d 984,
988-89 (5th Cir. 1997). The trial court is charged with making this preliminary determination under
Fed. R. Evid. 104(a).2 Andrade Garcia v. Columbia Medical Center of Sherman, 996 F.Supp. 617,
620 (E.D. Tex. 1998); see also Fed. R. Evid., adv. comm. notes (2000).
Daubert lists five non-exclusive factors to consider when assessing the scientific validity or
reliability of expert testimony:
1.
Whether the theory or technique has been tested;
2.
Whether the theory or technique has been subjected to peer
review and publication;
3.
The known or potential rate of error of the method used;
4.
The existence and maintenance of standards and controls in
the methodology; and
5.
Whether the theory or method has been generally accepted by the scientific
community.
Daubert, 509 U.S. at 593-95. These factors are not necessarily limited to scientific evidence and
may be applicable to testimony offered by non-scientific experts, depending upon “the particular
circumstances of the particular case at issue.” Kumho Tire Company, Ltd. v. Carmichael, 526 U.S.
137, 150 (1999). In either case, the Daubert analysis focuses on the reasoning or methodology
employed by the expert, not the ultimate conclusion. Watkins, 121 F.3d at 989. The purpose of such
an inquiry is “to make certain that an expert, whether basing testimony upon 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.” Skidmore v. Precision Printing and Packaging, Inc.,
188 F.3d 606, 618 (5th Cir. 1999) (quoting Kumho Tire, 526 U.S. at 152). Thus, the court “must
2
Fed. R. Evid. 104(a) provides:
Preliminary questions concerning the qualification of a person to be a witness, the
existence of a privilege, or the admissibility of evidence shall be determined by the
court, subject to the provisions of subdivision (b). In making its determination it is
not bound by the rules of evidence except those with respect to privileges.
review only the reasonableness of the expert's use of such an approach, together with his particular
method of analyzing the data so obtained, to draw a conclusion regarding the specific matter to
which the expert testimony is directly relevant.” American Tourmaline Fields v. International Paper
Co., 1999 WL 242690 at *2 (N.D. Tex. Apr. 19, 1999) (citing Kumho Tire, 526 U.S. at 154).
The test of reliability is necessarily a flexible one. As the Supreme Court has recognized, the
Daubert factors “may or may not be pertinent in assessing reliability, depending on the nature of the
issue, the expert's particular expertise, and the subject of his testimony.” Kumho Tire, 526 U.S. at
150; see also Watkins, 121 F.3d at 988-89 (“Not every guidepost outlined in Daubert will necessarily
apply to expert testimony[.]”). A trial court has wide latitude in deciding how to determine
reliability, just as it has considerable discretion with respect to the ultimate reliability determination.
Kumho Tire, 526 U.S. at 152. Moreover, “the rejection of expert testimony is the exception rather
than the rule.” See Fed. R. Evid. 702, adv. comm. notes (2000). Daubert did not work a seachange
over federal evidence law, and “the trial court's role as gatekeeper is not intended to serve as a
replacement for the adversary system.” See id. (quoting United States v. 14.38 Acres of Land, More
or Less, Situated in Leflore County, Mississippi, 80 F.3d 1074, 1078 (5th Cir. 1996)). Even after
Daubert, “[v]igorous cross-examination, presentation of contrary evidence, and careful instruction
on the burden of proof are the traditional and appropriate means of attacking shaky but admissible
evidence.” Daubert, 509 U.S. at 596; see also In re Paoli Railroad Yard PCB Litigation, 35 F.3d
717, 744 (3d Cir. 1994) (“The grounds for the expert's opinion merely have to be good, they do not
have to be perfect.”).
III.
ANALYSIS
A.
Plaintiff’s Experts
Plaintiff offers testimony of three experts–Howard Altschule, Sean Peatrowsky, and Tom
Irmiter–to support its position that a hail storm caused damage to its property within the scope of its
insurance policy. Defendant contends that Altschule’s testimony is not helpful to the jury within the
meaning of Federal Rule of Evidence 702(a) and that his opinion is not reliable. Additionally,
Defendant argues that Peatrowsky’s testimony lacks methodological reliability. Finally, Defendant
maintains that Irmiter is unqualified to give his opinion, that his testimony would be needlessly
cumulative of Peatrowsky’s opinion, and that his opinion is unreliable. Judged against the standards
of Federal Rule of Evidence 702 and Supreme Court precedent, for the reasons that follow, the Court
determines that Altschule and Peatrowsky’s testimony are each admissible.
1.
Howard Altschule
Plaintiffs retained Howard Altschule as an expert to review the occurrence of precipitation
and thunderstorms in the vicinity of 2624 Southern Hills Boulevard, Arlington, Texas, (“the
property”) to determine whether any hail fell in the area. App. Def.’s Mot. Exclude Testimony of
Howard Altschule (Altschule Report) 1, ECF No. 40-2. Altschule wrote his report on January 15,
2014. Id. Additionally, Altschule was deposed on April 17, 2014. App. Def.’s Mot. Exclude
Testimony of Howard Altschule (Altschule Dep.) 2, 5:8-10, ECF No. 40-2. Altschule received a
Bachelor of Science degree in Atmospheric Science from State University of New York at Albany
in May 1995. App. Pl.’s Mot. Opp’n Mot. Exclude Testimony of Howard Altschule Exhibit A 1,
ECF No. 73. In February 2014, Altschule earned the Certified Consulting Meteorologist (CCM)
designation from the American Meteorological Society (AMS). Id. at 11. According to the AMS,
the CCM credential is awarded to “highly qualified meteorologists providing research and services
to a wide variety of users of weather information” who “demonstrate a broad background in
meteorology together with detailed knowledge in a particular field of specialization.” Id. CCM
designees are “considered experts in the application of weather information to a host of practical
challenges . . . [including] expert testimony on weather-related court cases.” Id. Altschule also
received the AMS “Seal of Approval” in January 2001, which is given when an individual
establishes that he meets the “criteria for scientific competence and effective communication skills
in [his] weather presentations.” Id. at 3.
Altschule’s opinion is that three storms occurred on May 24, 2011, each likely causing severe
hail at the covered property. App. Def.’s Mot. Exclude Testimony of Howard Altschule (Altschule
Report) 32, ECF No. 40-2. Altschule reviewed the following data in his investigation: (1) hourly
surface weather observations from the Dallas/Fort Worth International Airport, Dallas Love Field
Airport, Arlington Municipal Airport, Grand Prairie Municipal Airport, and Fort Worth Meacham
International Airport; (2) cooperative observer station reports from Arlington 5.7 North and
Arlington 3.7 North-Northwest; (3) the publication “Local Climatological Data” for Dallas/Fort
Worth International Airport and Dallas Love Field Airport; (4) the publication “Storm Data” for
Texas in May 2011; (5) the super-resolution reflectivity Doppler radar images from the Dallas/Fort
Worth, Texas (“DFW”) radar site zoomed over the incident location; (6) super-resolution velocity
Doppler radar images from the DFW radar site zoomed in over the incident location; (7) storm
relative velocity Doppler radar images from Dallas/Fort Worth ; (8) super-resolution Level 2 Doppler
radar images from the DFW radar site zoomed in over the incident location and analyzed using
Gibson Ridge Analyst; and (9) various National Weather Service statements, advisories, bulletins
and reports issued by the DFW office. Id. at 25-26. In respect to his methodology, Altschule noted
that he used “only the most trusted and reliable sources of weather information that can be certified
by the federal government.” Id. at 25.
Defendant challenges Altschule’s ability to render “helpful” testimony within the meaning
of Federal Rule of Evidence 702(a). Def.’s Br. Supp. Mot. Exclude Testimony Howard Altschule
3, ECF No. 41. In support, Defendant points to Altschule’s deposition testimony:
Q: And if no one reports of an actual observation of hail size at the property, what,
in your mind, is the next best thing to determine what size hail impacted a property?
A: My job, as a Meteorologist, is to look at all of the weather information and the
data, and determine, within a reasonable degree of Meteorological certainty, what the
hail size was and if hail occurred at all at an incident location, and that is my
expertise, and that is what I was asked to do, and that is what I did based on sound
scientific principle and accepted forms of weather data and Meteorological data.
Q: Do you have an opinion as to what methods are the most reliable as to what size
hail impacted a property?
A: I think I already answered that. Someone there actually measuring it at the time
it’s falling.
Q: And apart from that, do you have an opinion on what other methods would be
reliable to measure the size of hail that may have impacted a property?
A: I think that is beyond my expertise.
App. Def.’s Mot. Exclude Testimony Howard Altschule (Altschule Dep.) 6, 23:12-25; 24:1-13, ECF
No. 40-2. Defendant relies on Altschule’s testimony that it is beyond his expertise to determine what
other methods, aside from the methods he had previously listed, that would be reliable to measure
the size of hail that may have impacted a property. Id. Defendant argues that this testimony
evidences that “Altschule can provide no reliable testimony on [the cause of damage], or even what
size hail actually impacted the property;” thus, Altschule’s testimony is inadmissible. Def.’s Br.
Supp. Mot. Exclude Testimony Howard Altschule 4, ECF No. 41. This argument is unpersuasive.
Altschule testified that looking at all of the weather information and data regarding a storm occurring
at an incident location would be another reliable method of determining what size hail impacted a
property. App. Def.’s Mot. Exclude Testimony Howard Altschule (Altschule Dep.) 6, 23:12-25;
24:1-13, ECF No. 40-2. Additionally, Altschule testified that he in fact reviewed the relevant
weather data “within a reasonable degree of Meteorological certainty” to determine the size of hail
that fell. “Unlike an ordinary witness . . . an expert is permitted wide latitude to offer opinions,
including those that are not based on firsthand knowledge or observation.” Daubert, 509 U.S. at
592. The Court finds that Altschule’s testimony regarding the size of hail that impacted the property
will “assist the trier of fact to understand or determine a fact in issue” and therefore is “helpful” as
required by Federal Rule of Evidence 702(a).
Defendant further argues that even if Altschule’s opinions regarding the hail were helpful,
his opinion that 1.75 inch hail fell at the property is unreliable because “it is based solely on three
ground reports of 1.75 inch hail somewhere ‘in Arlington’ and another report ‘one mile south of
Euless.’”3 Def.’s Br. Supp. Mot. Exclude Testimony Howard Altschule 4, ECF No. 41. Defendant
contends that “Altschule’s reliance on two spotter reports . . . to reach the conclusion that hail of that
size fell at the Property is too great an analytical leap.” Def.’s Reply Br. Supp. Mot. Exclude
Testimony Howard Altschule 3, ECF No. 88. In his report, Altschule opined that while the Doppler
radar indicated that the maximum estimated hail size was approximately 0.80 inches over the
incident location, “Local Storm Reports from 1 mile south of Euless, Texas and also from Arlington,
Texas both indicated 1.75" diameter hail fell.” App. Def.’s Mot. Exclude Testimony Howard
Altschule 33, ECF No. 40-2. As a result, Altschule concluded “it [is] my opinion that 1.75' in
diameter hail fell in the vicinity of the incident location.” Id. In his deposition, Altschule explained
that “when I use ‘in the vicinity of the incident location,’ it’s meant to include[] the property
involved in this investigation, in the immediate vicinity of there, not just in Euless or just in
Arlington.” App. Def.’s Mot. Exclude Testimony Howard Altschule (Altschule Dep.) 10, 39:6-25,
39:2-6. He added “[t]his analysis and my findings are based on my opinions in the vicinity of the
3
Defendant does not contest Altschule’s opinion that hail likely fell at the size of approximately 1.13
inches in the first supercell or at the size of 1.00 to 1.51 inches in the third supercell. See generally Def.’s
Br. Supp. Mot. Exclude Testimony Howard Altschule ECF No. 41.
incident location, which should include the property at 2624 Southern Hills Boulevard.” Id. at 10,
39:2-6. Altschule also explained why he weighted the storm reports more heavily than the Doppler
radar report:
If you look at all the weather records, including the Doppler radar reflectivity images,
the POSH images, the mechanical images, the storm reports, the National Weather
Service warnings, the text in those warnings, when you [look] at this --by the way,
the one mile south of Euless location changed. There was a Meteorologist-- National
Weather Service Meteorologist that reported that. Sometimes it was one mile south,
sometimes two miles south. Many times, the National Weather Service, when they
receive a report, they just put the generic landmark location in there because they are
really too busy, many times, to look up specifically the intersection. Unless
otherwise stated, they assign one mile south or two miles south. When you look at
that and the contours of the probability of severe hail, the maximum estimated hail
size, these pass right over the incident location, these higher values. The radar was
also indicating, you know, 80 over the incident location for the hail size, and it was
also indicating -- the radar, itself, was indicating less than 1.75 inch diameter hail
seen over Arlington, but we know that the hail was 1.75 inches over Arlington
because there are actual reports that were sent in for that area.
App. Def.’s Mot. Exclude Testimony Howard Altschule (Altschule Dep.) 10, 39:20-25, 40:2-25,
ECF No. 40-2. Applying the standards of Federal Rule of Evidence 702 and Supreme Court
precedent, the Court finds that Altschule’s testimony regarding the size of hail that fell at the
property is admissible.
2.
Sean Peatrowsky
Plaintiff offers the expert testimony of Sean Peatrowsky to establish that the damage to the
roof tiles of the property was caused by the storm occurring on May 24, 2011. Pl.’s Br. Resp. Mot.
Exclude Sean Peatrowsky 1, ECF No. 70. Plaintiff also seeks to have Peatrowsky offer his opinions
relating to damage of the air-conditioning units at the property. Id. Peatrowsky graduated from the
University of Nebraska with a Bachelor of Science degree in Civil Engineering in 1997 and a
Bachelor of Science degree in Architectural Studies in 1995. App. Pl.’s Resp. Mot. Exclude
Testimony Sean Peatrowsky 2, ECF No. 74. Peatrowsky has thirteen years’ experience in “structural
design engineering, geotechnical engineering, new construction inspections, and forensic
investigations.” Id.
Defendant seeks to exclude Peatrowsky’s testimony on the basis that his opinions are
unreliable. Def.’s Br. Supp. Mot. Exclude Sean Peatrowsky 3-9, ECF No. 44. More specifically,
Defendant argues that Peatrowsky is unable to offer his opinion regarding the cause of the damage
to the roof because he “failed to consider prior wind events, which he admits is a possible cause of
the damage.” Id. at 3. Defendant additionally argues that Peatrowsky’s opinion regarding the proper
repair for the air-conditioning units should be excluded because “it lacks methodological reliability,
and Peatrowsky admits that it is outside his expertise.” Id. at 7. Peatrowsky accessed the roof of
every building on the property aside from the pool building. App. Def.’s Mot. Exclude Sean
Peatrowsky (Peatrowsky Dep.) 9, 35:2-5, ECF No. 45. Peatrowsky opines that the largest hail size
that fell on the property was between 1.5 and 1.34 inches in diameter. Id. at 13, 49:9-13. In reaching
this conclusion, Peatrowsky observed the impact damage on the roof, read the weather reports
prepared for the investigation, saw “the news footage of the hail that fell at the ballpark in Arlington
on the night of the storm,” and investigated two other buildings near the property that were damaged
by hail from the same storm. Id. at 13, 49:14-25. Regarding, the observed damage, Peatrowsky
testified that he saw “impact damage to the tile roofs, impact damage to the air conditioner units
around the buildings, impact damage to the . . . rain gutters on the buildings and downspouts, [and]
impact damage to window screens and window frames.” Id. at 13, 51:16-25. Peatrowsky did not
quantify the number of roof tiles broken as a result of either the wind or the hail “because the tiles
were still broken by the same storm event.” Id. at 25, 98:17-25. Defendant points to Peatrowsky’s
testimony where, after being asked whether “it [was] possible that prior wind events at the property
could have damaged some of those concrete roofing tiles,” he responded in the affirmative.4 Id. at
26, 101:1-5. According to Defendant, this suggests that Peatrowsky’s opinion is not reliable. Def.’s
Br. Supp. Mot. Exclude Testimony Shawn Peatrowsky 6, ECF No. 44. “Elimination of alternative
possibilities is one method of arriving at a result reliably, but it is not the only method.” Chisesi
Bros. Meat Packing Co. v. Westchester Surplus Lines Ins. Co., No. 09-6523, 2010 WL 3720465, at
*4 (E.D. La September 9, 2010). While failing to eliminate other possible causes may diminish the
strength of an expert’s opinion, the admissibility of that opinion is not affected. Id. Accordingly,
the Court finds that Peatrowsky’s testimony regarding the cause of the damage to the concrete roof
tiles is admissible.
Regarding the repairs to the air-conditioning units, Peatrowsky opined that he did not
“advocate the combing of A/C units5 due to known efficiency loss associated with the procedure for
impact damaged units.” Id. at 20, 77:16-25. Although he stated that the process did not return the
unit to “100 percent” in cases where the damage was severe, he noted that in cases where the
damages are minor, the unit could be fully restored. Id. at 20, 78:1-9, 79:25, 80:1-6. Peatrowsky
ultimately concluded that the damaged units would need to be replaced. Id. at 22, 86:1-6. He
testified that he reached this conclusion because most of the units that he observed with damage were
“of an age that . . . parts would no longer be available for repair [and] . . . they would probably not
meet current energy codes.” Id. at 22, 86:7-13. Defendant points to portions of Peatrowsky’s
4
In his testimony, Peatrowsky noted that he referred to “a copy of the Weather Fusion point data
report going back approximately six years . . . and there was no recorded events of hail of [1.75 inches]
contained in those reports.” App. Def.’s Br. Supp. Mot. Exclude Sean Peatrowsky (Peatrowsky Dep.) 14,
53:18-23, ECF No. 45. He later conceded that he was unsure whether he “actually ordered” the data for the
specific property. Id. at 14, 55:1-5.
5
Peatrowsky defines “combing” as a process used to straighten the fins of a damaged airconditioning unit. App. Def.’s Mot. Exclude Sean Peatrowsky (Peatrowsky Dep.) 20, 78:1-9. He also notes
that the combing process is used to straighten an air-conditioning coil that has been bent or damaged. Id.
testimony where he was questioned about the basis of his opinion to support a finding that his
testimony is inadmissible. Peatrowsky testified that he could not quantify how combing could
impact the efficiency of a unit, that he had not conducted any investigation to make that
determination, and that he did not base his opinion on any industry report or data. Id. at 20, 78:1018, 80:19-24. The Court finds this evidence unpersuasive. Peatrowsky, a licensed engineer,
determined that combing the older air-conditioning units would be an improper method of repair.
He based this opinion on his background, training, thirteen years of experience in performing
forensic investigations, and inspection of the property. The Court finds that Peatrowsky’s testimony
regarding the repair of the air-conditioning units is admissible.
3.
Tom Irmiter
Plaintiff employed Tom Irmiter to review the property to estimate the damages and assess
issues related to required code and manufacturer requirements in determining the scope of repair.
Pl.’s Br. Opp’n Mot. Exclude Testimony Tom Irmiter 1, ECF No. 71. Irmiter co-authored a report
with Peatrowsky on January 26, 2014, and a rebuttal report on April 2, 2014. App. Pl.’s Opp’n Mot.
Exclude Testimony Tom Irmiter 30-82, ECF No. 48. Irmiter gave deposition testimony on April 30,
2014. Id. at 1, 1:14-16. Irmiter graduated from Hamline University with a Bachelor of Arts degree
in English. Id. at 11, 41:5-7. Additionally, he is a certified building code official in Minnesota and
has received various certificates including a Statistical Analysis certificate from George Washington
University, an International Code Council Building Inspector Certificate, and an International Code
Property Management Inspector Certificate. Id. at 11, 44:1-24.
Defendant does not dispute that Irmiter is qualified to testify as to the scope of the damage
to the property. Def.’s Reply Br. Supp. Mot. Exclude Testimony Tom Irmiter 2, ECF No. 90.
Defendant instead argues that all of Irmiter’s opinions on causation of the damages should be
excluded because he is not qualified to give the opinions and because they are cumulative of
Peatrowsky’s testimony. Id. at 3. In support of this argument, Defendant first points to Irmiter’s
testimony that he is qualified to determine whether hail damaged a property because he has
performed “exhaustive” online research on the matter and has twenty-five years’ experience in
physically inspecting properties. App. Def.’s Mot. Exclude Testimony Tom Irmiter (Irmiter Dep.)
12-13, 48:2-50:3, ECF No. 48. Irmiter notes that “there really is no scientific information that’s put
out by the manufacturers that defines what hail is;” instead, he states that the process of determining
hail damage is “an art form.” Id. at 13, 49:13-24. “The Daubert factors are not particularly helpful
in measuring the reliability of a non-scientific expert testifying based on . . . [his] practical
experience.” Cox Operating, LLC v. St. Paul Surplus Lines Ins. Co., 2013 WL 1752405 at *3 (S.D.
Tex. April 23, 2013). Additionally, “[e]xperts need not be highly qualified to testify, and differences
in expertise go to the weight of the testimony, rather than admissibility.” Id. at *1. Irmiter has
several inspection certificates and is a state certified building inspector. He also has twenty-five
years of experience in inspecting hail claims. The Court finds that Irmiter is qualified to testify about
the causation of the damage to the property.
Defendant further contends that Irmiter’s testimony would be cumulative of Peatrowsky’s
because in his deposition, Irmiter noted that he and Peatrowsky made a “collaborative effort” in coauthoring their expert report. Id. at 7, 28:14-22. Irmiter performed his own investigation of the
property; this inspection and determination of the cause of the damage relates to his testimony
regarding the scope of the damages.6 The Court finds that Irmiter’s testimony regarding what he
determined to be the cause of the damage to the roof tiles is admissible because it is not needlessly
6
As noted above, Defendant does not dispute Irmiter’s testimony regarding the scope of the damage.
cumulative of Peatrowsky’s testimony.7 See Fed. Rule Evid. 403.
Defendant also argues that Irmiter’s opinion regarding the scope of the loss to the airconditioning units is not reliable. Def.’s Br. Supp. Mot. Exclude Testimony Tom Irmiter 10, ECF
No. 47. In support, Defendant points to Irmiter’s testimony that he had not performed independent
testing on the units to determine whether there was an efficiency drop and that he had not based his
opinion on industry literature. App. Def.’s Mot. Exclude Testimony Tom Irmiter (Irmiter Dep.) 7,
25:20-22, 5, 19:15-20, ECF No. 48. Irmiter testified that his opinions regarding the effectiveness
of combing the units rather than replacing them was based on his “discussion with a number of
HVAC contractors over the years.” Id. at 32, 126:14-18. Irmiter also drew on his extensive
knowledge of building codes in determining that “none of the air conditioners that we saw out there
of the 59 [damaged units] meet the 2007 requirements that are now within all of the building codes.”
Id. at 35, 136:18-25. He opined that because the units never met the appropriate efficiency
requirements, it would be impossible to repair them to meet those requirements. Id. Based on
Irmiter’s knowledge of the appropriate building codes and his extensive experience, the Court finds
that Peatrowsky’s testimony regarding the repair of the air-conditioning units is admissible.
B.
Defendant’s Expert
Defendant offers the testimony of Tim Marshall who will testify regarding the weather
conditions at the property on May 24, 2011. Plaintiff contends that Marshall’s testimony is
inadmissible because his opinions are not based on sufficient facts of date and are unreliable. Judged
7
Defendant argues in the alternative that even if Irmiter was qualified to give his opinion regarding
the causation of the damages, his testimony is unreliable because he failed to rule out other possible causes
of the damage. Def.’s Br. Supp. Mot. Exclude Testimony Tom Irmiter 8, ECF No. 47. The Court has already
determined that a failure to rule out other possible causes of damage does not render an expert’s opinion
unreliable. See Part III.A.2.; Chisesi Bros. Meat Packing Co., 2010 WL 3720465, at *4. Accordingly,
the Court finds that Irmiter’s opinion on causation is admissible.
against the standards of Federal Rule of Evidence 702 and Supreme Court precedent, for the reasons
that follow, the Court determines that Marshall’s testimony is admissible.
1.
Tim Marshall
Defendant employed Tim Marshall to inspect the roof coverings on the property and
determine the extent of hail and wind damage. App. Pl.’s Mot. Exclude Testimony Tim Marshall
11, ECF No. 51. Marshall visually inspected the property and offered his first report on January 31,
2014. Id. Plaintiff does not dispute Marshall’s qualifications, rather Plaintiff contends that
Marshall’s reliance on “Weather Fusion” data is unreliable. Pl.’s Br. Supp. Mot. Exclude Tim
Marshall 2-4, ECF No. 50. Plaintiff points to Marshall’s report where he states that the “radarderived estimates of hail size from Weather Fusion, Inc. . . . have a high error rate.” Id. at 14. He
further notes that “[t]he radar cannot tell the densities of the hail or damage potential.” Id. In his
report Marshall asserted that he reviewed the following items prior to creating the report: (1) a
document that included Plaintiff’s responses; (2) the Fireman’s Fund claim file, which included an
engineering report of the property; (3) a letter from Childress Duffy noting that the property had been
sold to a different company; (4) a National Climactic Data Center publication; (5) a National
Weather Service report; (6) a weather report from the Dallas/Fort Worth International Airport; (7)
radar-derived estimates of hail size from Weather Fusion Inc.; and (8) a physical inspection of the
property. Id. at 13-14. Marshall relied on a variety of sources in forming his opinion. Applying the
standards of Federal Rule of Evidence 702 and Supreme Court precedent, the Court finds that
Irmiter’s testimony regarding the size of hail that fell at the property is admissible.
IV.
CONCLUSION
For the reasons stated above, the Court denies Defendant’s Motion to Exclude Testimony
of Howard Altschule (ECF No. 40); denies Defendant’s Motion to Exclude Testimony of Sean
Peatrowsky (ECF No. 43); denies Defendant’s Motion to Exclude Testimony of Tom Irmiter (ECF
No. 46); and denies Plaintiff’s Motion to Exclude Testimony of Tim Marshall (ECF No. 49).
SO ORDERED this 12th day of September, 2014.
_____________________________________
Reed O’Connor
UNITED STATES DISTRICT JUDGE
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