Metro Hospitality Partners, LTD. v. Lexington Insurance Company

Filing 39

MEMORANDUM AND OPINION entered: Lexington's motion to strike Metro's experts is denied. (Docket Entry No. 20). Metro's Rule 59(e) motion to alter or amend the judgment is denied. (Docket Entry No. 28). (Signed by Chief Judge Lee H Rosenthal. Parties notified.(leddins, 4)

United States District Court
Southern District of Texas

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
METRO HOSPITALITY PARTNERS, LTD,
d/b/a CROWNE PLAZA HOTEL,
Plaintiff,
VS.
LEXINGTON INSURANCE COMPANY,
Defendant.

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ENTERED
July 25, 2017
David J. Bradley, Clerk

CIVIL ACTION NO. H-15-1307

MEMORANDUM AND OPINION
I.

Background1
The insured, Metro Hospitality Partners, Ltd., owns a hotel in Houston, Texas. After a

hailstorm damaged the hotel, Metro promptly notified its property insurer, Lexington Insurance
Company. Lexington quickly responded, inspected, adjusted, paid part of the claim as an advance,
and identified the amount of covered damage.

Lexington approved $820,649.42 and paid

$585,699.60 after subtracting the deductible and depreciation. The parties disputed whether more
money was owed under the policy. Metro filed this suit alleging that Lexington owed more under
the policy and that Lexington also violated extracontractual Texas common-law and statutory duties

of good faith and fair dealing.
Lexington moved for summary judgment that it had complied with its policy obligation.

(Docket Entry No. 21). Lexington argued that Metro presented no evidence of any injury
independent of the injuries it claimed resulted from Lexington’s denial of the disputed covered loss

and therefore Metro could not recover on its extracontractual good-faith and fair-dealing claims.
This court agreed, following binding Fifth Circuit precedent construing the-then most recent Texas

1

The underlying factual background was described in full in the court’s summary judgment opinion
and will not be restated here. (Docket Entry No. 27).

case law. (Docket Entry No. 27 at 8–9). After this court ruled, the Texas Supreme Court issued
USAA Texas Lloyds Co. v. Menchaca, —S.W.3d —, 2017 WL 1311752 (Tex. Apr. 7, 2017). Metro
contends that this opinion requires this court to alter or amend its holding on the extracontractual
claims. Lexington contends that no change is required.
Lexington also based its summary judgment motion on the ground that Metro had failed to
cooperate with Lexington’s investigation into the loss, relieving Lexington of any duty to pay more
than the investigation supported. After Lexington paid and Metro demanded more based on newly
claimed losses, Lexington asked for documents and information substantiating Metro’s demand for
additional payment. Metro refused. The policy required Metro to “assist and cooperate” with
Lexington in the investigation and adjustment. Lexington invoked Metro’s breach of the assist-andcooperate clause and argued that the breach barred Metro from bringing this suit under the “no suits”
clause.
The court found that until Metro complied with the duty to cooperate in the claims
investigation, Lexington had no obligation to pay any part of the additional disputed portion of the
claim. Lexington also moved to strike Metro’s experts, who had opined on the cause and amount

of the additional damage the hotel incurred. The court denied Lexington’s motion to strike experts
without prejudice reasserting it depending on what documents and information Metro produced.
Metro complied with Lexington’s outstanding document requests. Lexington now reurges
its motion to strike Metro’s experts, Metro responded, Lexington replied, and Metro surreplied.
(Docket Entry Nos. 20, 22, 24, 35, 36). After the court’s summary judgment opinion was issued,
Metro has also moved to alter or amend its judgment under Rule 59(e). (Docket Entry No. 28).
Lexington responded, Metro replied, and Lexington surreplied. (Docket Entry Nos. 30, 34, 37).

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Based on a careful review of the motions, responses, replies; surreplies; the record; the
relevant law; and the arguments of counsel, this court denies Lexington’s motion to strike Metro’s
experts and denies Metro’s motion to alter or amend the judgment. The reasons for these rulings are

stated below.
II.

The Applicable Legal Standards
A.

The Legal Standard to Alter or Amend a Judgment under Rule 59(e)

The Federal Rules of Civil Procedure do not specifically provide for motions for
reconsideration. See St. Paul Mercury Ins. Co. v. Fair Grounds Corp., 123 F.3d 336, 339 (5th Cir.
1997) (“[T]he Federal Rules of Civil Procedure do not recognize a general motion for
reconsideration.”). A court retains the power to revise an interlocutory order before entering
judgment adjudicating the parties' claims, rights, and liabilities. FED. R. CIV. P. 54(b). A Rule 59(e)
motion “calls into question the correctness of a judgment.” Templet v. HydroChem Inc., 367 F.3d
473, 478–79 (5th Cir. 2004) (citing In re Transtexas Gas Corp., 303 F.3d 571, 581 (5th Cir. 2002)).
A motion that asks the court to change an order or judgment is generally considered a motion to alter
or amend under Rule 59(e). eTool Development, Inc. v. Nat'l Semiconductor Corp., 881 F.Supp.2d
745, 748–49 (E.D. Tex. 2012).
A Rule 59(e) motion “‘must clearly establish either a manifest error of law or fact or must
present newly discovered evidence’ and ‘cannot be used to raise arguments which could, and should,
have been made before the judgment issued.’” Rosenzweig v. Azurix Corp., 332 F.3d 854, 863–64
(5th Cir. 2003) (quoting Simon v. United States, 891 F.2d 1154, 1159 (5th Cir. 1990)). Changing
an order or judgment under Rule 59(e) is an “extraordinary remedy” that courts use sparingly.
Templet, 367 F.3d at 479; see also 11 WRIGHT & MILLER, FEDERAL PRACTICE & PROCEDURE

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§ 2810.1 at 124 (2d ed. 1995). The Rule 59(e) standard “favors denial of motions to alter or amend
a judgment.” S. Constructors Grp., Inc. v. Dynalectric Co., 2 F.3d 606, 611 (5th Cir. 1993). A
motion to reconsider may not be used to relitigate matters, raise arguments, or submit evidence that
could have been presented before the judgment or order was entered. 11 WRIGHT & MILLER
§ 2810.1 at 127–28 (footnotes omitted). “Relief . . . is also appropriate when there has been an
intervening change in the controlling law.” Schiller v. Physicians Res. Grp. Inc., 342 F.3d 563, 567
(5th Cir. 2003); accord Arceneaux v. State Farm Fire & Cas. Co., No. 07-7701, 2008 WL 2067044,
at *1 (E.D. La. May 14, 2008) (“To obtain relief under Rule 59(e), the movant must (1) show that
its motion is necessary to correct a manifest error of law or fact, (2) present newly discovered or
previously unavailable evidence, (3) show that its motion is necessary to prevent manifest injustice,
or (4) show that its motion is justified by an intervening change in the controlling law.”) (citation
omitted).
B.

The Legal Standard to Strike Testimony of Witnesses with Specialized
Knowledge

Federal Rule of Evidence 702 provides that a witness who is qualified by knowledge, skill,
experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the witness’s scientific, technical, or other specialized knowledge will help the trier of fact
to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the witness has reliably applied the principles and methods to the facts of the case.
FED. R. EVID. 702. Qualified witnesses may offer opinion testimony on industry standards or norms
and whether they were followed in a particular case, as long as these opinions involve questions of

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fact rather than purely legal matters. Waco Int’l, Inc. v. KHK Scaffolding Houston, Inc., 278 F.3d
523, 533 (5th Cir. 2002).
The requirement that the testimony help “the trier of fact to understand the evidence or to
determine a fact in issue” means that the evidence must be relevant. Mathis v. Exxon Corp., 302 F.3d
448, 460 (5th Cir. 2002) (citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993)).
Rule 401 defines relevant evidence as that having any tendency to make a fact that is of consequence
in determining the action more probable or less probable than it otherwise would be. FED. R. EVID.
401. The Daubert “gatekeeping” obligation of the trial court applies to testimony based on scientific,
technical, and other specialized knowledge. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141,
147–48 (1999).
The party offering the testimony must prove by a preponderance of the evidence that the
proffered testimony is relevant and admissible under Rule 702. See Mathis, 302 F.3d at 459–60. In
determining the admissibility of expert testimony, the district court should give proper deference to
the jury’s role as the arbiter of disputes between conflicting opinions. As a general rule, questions
relating to the bases and sources of a witness’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, More or Less Sit. in Leflore Cty., Miss., 80 F.3d 1074, 1077 (5th Cir. 1996); see also
Primrose Operating Co. v. Nat’l Am. Ins. Co., 382 F.3d 546, 562–63 (5th Cir. 2004) (it is “the role
of the adversarial system, not the court, to highlight weak evidence”). The Supreme Court in Daubert
made clear that “[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.” 509 U.S. at 596.

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III.

Analysis
A.

The Motion to Alter or Amend

Metro alleged that Lexington breached Texas common-law and statutory duties of good faith
and fair dealing. (Docket Entry No. 1-5 at ¶¶ 13–15). The standard for the common-law claim for
bad-faith breach of the duty of good faith and fair dealing carries over to statutory liability claims
under the Texas Insurance Code. Both have the same predicate for recovery. The absence of
evidence on one disposes of the other. See Reyna v. State Farm Lloyds, Civ. No. 7:14-cv-420, 2016
WL 3654761, at *8 (S.D. Tex. July 8, 2016) (citing Texas Mut. Ins. Co. v. Sara Care Child Care
Ctr., Inc., 324 S.W.3d 305, 316 (Tex. App.—El Paso 2010, pet. denied) (citing Progressive County
Mut. Ins. Co. v. Boyd, 177 S.W.3d 919, 922–23 (Tex. 2005) (per curiam)); Emmert v. Progressive
Cnty. Mut. Ins. Co., 882 S.W.2d 32, 36 (Tex. App.—Tyler 1994, writ denied)).
Lexington moved for summary judgment on the ground that Metro did not present evidence
of any injury independent of the injuries it claimed resulted from Lexington’s denial of the disputed

covered loss. (Docket Entry No. 21). Citing Fifth Circuit case law construing the then most-recent
Texas Supreme Court authority, this court agreed and granted Lexington’s summary judgment
motion. (Docket Entry No. 27 at 8–9) (citing Parkans Int’l LLC v. Zurich Ins. Co., 299 F.3d 514,
519 (5th Cir. 2002) (citing Provident American Ins. Co. v. Castaneda, 988 S.W.2d 189, 198–99
(Tex. 1998) (“There can be no recovery for extra-contractual damages for mishandling claims unless
the complained of actions or omissions caused injury independent of those that would have resulted
from a wrongful denial of policy benefits.”)); see also Great Am. Ins. Co. v. AFS/IBEX Fin. Servs.,
Inc., 612 F.3d 800, 808 n.1 (5th Cir. 2010) (rejecting the plaintiff’s argument that the “denial of
insurance proceeds, standing alone, entitled it to recover on its extracontractual claims” because that

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“assertion [did] not comport with this court’s case law”)).
Two weeks after the court granted the summary judgment motion, the Texas Supreme Court
issued its opinion in USAA Texas Lloyds Co. v. Menchaca, —S.W.3d —, 2017 WL 1311752 (Tex.
Apr. 7, 2017). In light of that intervening case law, Metro moved to alter or amend the judgment.

(Docket Entry No. 28). Menchaca clarified that an insured’s injury independent of the loss of policy
benefits is not necessarily required for recovery on extracontractual bad-faith claims. Menchaca,
2017 WL 1311752, at *7–*9.

When there is coverage under the policy and a breach, an insured

may be able to recover. Id. Metro’s failure to provide evidence of an independent injury was the
basis for this court’s summary judgment opinion. The parties agree that this ground no longer
suffices as the basis to grant Lexington’s summary judgment motion on Metro’s extracontractual
claims. The parties dispute whether Menchaca changes the result.
Lexington argues that Metro cannot succeed on its extracontractual claims because
Lexington conducted as thorough and reasonable an investigation as it could given Metro’s failure
to cooperate, which impeded Lexington’s investigation. Lexington argues that Metro cannot show
that it suffered damage “caused by” any alleged statutory violation. Menchaca, 2017 WL 1311752,
at *3 (Tex. Apr. 7, 2017) (“The Code grants insureds a private action against insurers that engage
in certain discriminatory, unfair, deceptive, or bad-faith practices, and it permits insureds to recover
‘actual damages . . . caused by’ those practices.”). In support of its argument, Metro pointed to the
issues disputed by the parties’ Rule 702 witnesses. Metro asserted that because it believes more
money is owed under the policy, there is sufficient evidence of bad faith to survive summary
judgment.
The main dispute is whether Lexington’s reliance on its investigation and the experts it

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retained to determine Metro’s covered losses was reasonable. “So long as a bona fide coverage
dispute exists, the insurer has complied with its duty of good faith and fair dealing even if the
insurer’s reasonable basis for denying the claim is determined to be erroneous.” Santacruz v.
Allstate Tex. Lloyd’s, Inc., 590 F. App’x 384, 387 (5th Cir. 2014). Conflicting opinions from the
insured’s experts do not alone show or raise an inference that the insurer acted unreasonably in
relying on its own expert. Thompson v. Zurich Am. Ins. Co., 664 F.3d 62, 67 (5th Cir. 2011). Metro
must point to direct or circumstantial evidence showing that Lexington’s experts’ opinions were
“questionable and that [Lexington] knew or should have known that the opinion was questionable.”
Id. (citing Guajardo v. Liberty Mut. Ins. Co., 831 S.W.2d 358, 365 (Tex. App.—Corpus Christi
1992, writ denied)).
Metro argues that the investigation Lexington’s three experts conducted was flawed. To
raise an inference of bad faith, Metro must presents facts that would allow a finding that an omission
or misstatement “in the expert’s investigation is of such magnitude as to affirmatively cast doubt on
the insurer’s basis for denial.” Id. at 68 (citing Lyons v. Millers Cas. Ins. Co. of Texas, 866 S.W.2d
597, 601 n.3 (Tex. 1993)). Lexington relied on three separate experts. Joseph Kennedy at LWG
Consulting identified $272,738.04 in compensable actual-cash-value losses to Metro’s HVAC
system. (Docket Entry No. 21, Ex. A at ¶ 5). Howard Jones, and later Steve Hardgrave, at JS Held
identified $412,961.56 in compensable actual-cash-value losses to the hotel building interiors. (Id.).
Dr. James Bailey of Exponent, Inc.—who has a Ph.D. in engineering—found no covered roof damage
because the problems resulted from age and poor maintenance, not from the recent hailstorm damage.
(Id.). All reported their findings and the facts they relied on to Lexington.

Metro does not contend that any of the experts or their firms lacked relevant expertise or

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experience. Metro instead argues that Lexington unreasonably relied on these experts because it
began with the “erroneous assumption” that the hotel had been damaged years earlier during
Hurricane Ike in 2008, not in the 2013 hailstorm. (Docket Entry No. 23 at 29). Bob Yazdani, the
hotel owner, testified that “[a]fter [Hurricane] Ike, we had some roof blown away, and we had the
water coming in . . . We had Ike damage, yes, sir.” (Docket Entry No. 37, Ex. H at 177, 198). The
primary dispute in this case is the roof’s condition before the 2013 hailstorm. Lexington’s
consideration of roof-damage causes before 2013 is clearly reasonable. Metro does not point to any
evidence showing that the consideration of evidence of the roof condition before the 2013 hailstorm
was unreasonable.
Metro also argues that Dr. Bailey, Lexington’s roof expert, conducted an unreasonable
inspection by “eyeballing” the roof. Metro’s only cite in support of this contention is its own
retained expert’s different finding on what caused the roof damage and when it occurred. Metro’s
expert, Billy Haley, is not an engineer or expert in roofs. He is a retained insurance adjuster. Haley
criticized Dr. Bailey’s inspection as substandard because “any reasonable inspection of the roof
would have detected the presence of the Hydro-Stop coating on the roof indicating that the roof was
not deteriorated or degraded.” (Docket Entry No. 23, Ex. A at 7). Metro also argues that the
investigation was unreasonable because Lexington did not inspect every one of the hotel rooms
damaged in the 2013 hailstorm. (Id., Ex. E at 93). In a similar case, the court rejected the insured’s
arguments that the insurer’s failure to conduct certain tests was unreasonable. Maynard v. State
Farm Lloyds, No. 3:00–CV–2428–M, 2002 WL 1461923, at *5 (N.D. Tex. July 2, 2002). The court
noted that the insured did not present any evidence that “that such inspectors usually do [differently]
in the process of completing an investigation.” Id. Metro has presented no such evidence in this

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case.
Even if Metro had shown that parts of Lexington’s investigation were unreasonable—which
Metro has not shown—Metro cannot show that Lexington’s delay in paying was “caused by” flaws
in the investigation. As this court earlier determined, Metro failed to cooperate with Lexington’s
reasonable demands for information and documents supporting Metro’s ever-increasing damage and
loss claims. The delay in the adjusting process was caused by Metro’s own actions. (Docket Entry
No. 27 at 10–17); Menchaca, 2017 WL 1311752, at *3 (Tex. Apr. 7, 2017). Texas law is clear that
an insurer’s reliance on an expert’s opinion must be evaluated based on knowledge at the time of
the dispute, not on information that is supplied or available later. Thompson, 664 F.3d at 67 (citing
Republic Ins. Co. v. Stoker, 903 S.W.2d 338, 341 (Tex. 1995) (“[W]hat is dispositive is whether,
based upon the facts existing at the time of the denial, a reasonable insurer would have denied the
claim.”); Viles v. Sec. Nat’l Ins. Co., 788 S.W.2d 566, 567 (Tex. 1990) (“Whether there is a
reasonable basis for denial . . . must be judged by the facts before the insurer at the time the claim
was denied.”)). Lexington cannot reasonably be expected to consider information Metro refused
to provide during the claim-adjustment work. On one hand, Metro withheld necessary information
to adjust the claim, and on the other, it asserts that Lexington engaged in bad-faith delay during the
claim-adjusting process. This argument fails.
Because summary judgment on Metro’s extracontractual claims is still warranted, Metro’s
Rule 59(e) motion to alter or amend the judgment is denied. (Docket Entry No. 28).
B.

The Motion to Strike

Lexington moves to strike Metro’s witnesses, Billy Haley, Hoyt Long, and Jed Taylor,
because the foundation of their opinions is unreliable. Lexington also moves to strike a weather

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report as untimely and unreliable.
Metro designated Bill Haley to opine on the “reasonable and necessary costs to restore the
subject property to its pre-loss condition.” (Docket Entry No. 12 at 1). Lexington argues that Haley
relied only on what Metro told him about the condition of the property, pre-loss maintenance records
that he did not include in his report, and a Google search. Metro responds with Haley’s declaration
stating that he based his opinions on interviews of persons with first-hand knowledge, review of
maintenance records, Lexington’s report of its pre-loss inspection of the hotel, review of videos of
the hail damage, his own personal inspection, inspections done by contractors and professionals,
Lexington’s notes from the adjusting process, meteorological data from the internet, and Haley’s
personal experience. (Docket Entry No. 22, Ex. A). Lexington responds that this information
revealed that the hotel and its roof had damage before the hail storm and cannot support Haley’s
opinion that the roof was damaged to the point of needing replacement during the storm.
Lexington’s argument for striking Haley’s opinion testimony is another version of one of the key
factual disputes—the timing, extent, and cause of the hotel’s roof damage.2 This dispute is not a
proper basis for striking Haley’s opinion testimony. See Moore v. International Paint, LLC, 547 F.
App’x 513, 515 (5th Cir. 2013) (experts may rely on one version of disputed facts in forming their
opinions); Primrose Operating Co., 382 F.3d at 562 (questions about bases and sources of expert’s
opinion generally affect weight rather than admissibility, and should be left to the jury). Lexington’s
motion to strike Haley’s opinion testimony is denied.
Lexington moves to strike the testimony from Metro’s designated roof damage expert
2

Lexington also seemingly argues that Metro’s experts cannot testify about the size of the hail or
subsequent hail damage because they did not have personal knowledge. Most experts are hired after an event
to give opinions, despite their lack of personal knowledge of the events. The issue is whether the after-thefact opinion is based on sufficient facts or data and methodology. FED. R. EVID. 702.

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witness, Hoyt Long, for the same reasons it moved to strike Haley’s testimony. Metro responds that
Long’s opinion is supported by his own inspections, interviews with witnesses who had personal
knowledge, Lexington’s pre-loss inspection, statements of Lexington’s representatives, testing by
third-party professionals, and Long’s 25 years of experience in the roofing industry. (Docket Entry
No. 22, Ex. B). Again, Lexington’s argument for striking Long’s testimony is the dispute over the
timing, cause, and extent of the roof damage. This is not a proper basis for striking Long’s
testimony. See Moore, 547 F. App’x at 515; Primrose Operating Co., 382 F.3d at 562. Lexington’s
motion to strike Long’s opinion testimony is denied.
Finally, Lexington moves to strike Jed Taylor’s testimony. Taylor inspected the hotel’s roof
on January 19, 2016, using thermal-imaging technology. Metro designated him to provide opinions
about his inspection. Taylor’s report states that Metro’s roof had been “holding trapped moisture
and [had] been doing so for an extended period of time.” (Docket Entry No. 20, Ex. G). Lexington
argues that this report, written over two and one-half years after the storm, is irrelevant to deciding
what caused the roof damage. Metro responds that Taylor’s testimony does not concern causation.
Rather, if he is called to testify at trial, he will explain the techniques of thermal imaging, its
purposes, and the results he obtained from using it. His testimony appears to be intended to help
explain and support the conclusions Haley and Long reached about what caused the roof damage
and its extent. Lexington argues that this after-the-fact thermal imaging is still irrelevant because
it does not establish when the moisture became trapped in the roof. This is a basis for crossexamination, not striking. See Moore, 547 F. App’x at 515; Primrose Operating Co., 382 F.3d at
562. Lexington’s motion to strike Taylor’s testimony is denied.
Finally, Lexington moves to strike a “WX” Report, a weather report Haley and Long used

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in forming their conclusions about the cause and extent of the damage to the hotel’s roof. Metro
ordered the weather report from WeatherGuidance.com. The report states that it was created by
Robert C. White, a meteorologist and forensic weather analyst. White was not designated by Metro
as a retained expert and no report, resume, or other information were provided. This weather report
was disclosed to Lexington June 27, 2016, months after Metro’s designation deadline.
Metro responds that this weather report was provided before Long’s deposition. Metro
obtained the report after Long read the opinions of the meteorologist Lexington designated, Dr. Lee
Branscombe. Long then decided that he wanted more weather information before his deposition.
Metro contends this report is admissible as a supplement under Rule 26(e)(1), despite the fact the
designation deadline had expired. Long states in his affidavit that he used the weather report to
“support the other data [he] previously reviewed from other weather sources.” (Docket Entry No.
22, Ex. B at ¶ 12). Long’s affidavit states that it is “standard and generally accepted practice for
roofing consultants to rely on third party weather sources to gauge the size of the hail, as well as to
confirm that a hail event did in fact occur.” (Id. at ¶ 10).
Experts may rely on facts that are otherwise inadmissible if of a type reasonably relied upon
by experts in the particular field. FED. R. EVID. 703; Maxwell v. Ford Motor Co., 160 F. App’x 420,
424 (5th Cir. 2005) (citing Marcel v. Placid Oil Co., 11 F.3d 563, 567 n.6 (5th Cir. 1994)). Trial
courts “should defer to the expert’s opinion of what data they find reasonably reliable.” Maxwell,
160 F. App’x at 424 (quoting Peteet v. Dow Chemical Co., 868 F.2d 1428, 1432 (5th Cir.1989)).
The types of sources on which an expert may reasonably rely “is virtually infinite.” Cedar Lodge
Plantation, LLC v. Cshv Fairway View I, LLC, No. CV 13-00129, 2016 WL 7429171, at *2 (M.D.
La. Dec. 23, 2016) (citing Jack B. Weinstein and Margaret A. Berger, 4 WEINSTEIN’S FEDERAL

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EVIDENCE § 703.04[3], at 703-15 to 703-20 (2d ed. 2005)).
This weather report is one source Long used to form his opinion on the extent, timing, and
cause of the roof damage. It is a type of evidence generally relied on to determine whether a storm
event could have caused certain damage. Because the report was provided before Long was
deposed, and because Metro has explained why it was filed late, there is no unfair prejudice to
Lexington from admitting the report. The motion to strike is denied. See Moore, 547 F. App’x at
515; Primrose Operating Co., 382 F.3d at 562.
Lexington’s motion to strike Metro’s experts is denied. (Docket Entry No. 20).
IV.

Conclusion
Lexington’s motion to strike Metro’s experts is denied. (Docket Entry No. 20). Metro’s Rule

59(e) motion to alter or amend the judgment is denied. (Docket Entry No. 28).

SIGNED on July 25, 2017, at Houston, Texas.

______________________________________
Lee H. Rosenthal
Chief United States District Judge

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