REED O'CONNOR, District Judge.
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.
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 35:20-25, 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
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:
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, 113 S.Ct. 2786, 125 L.Ed.2d 469 (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).
Daubert lists five non-exclusive factors to consider when assessing the scientific validity or reliability of expert testimony:
Daubert, 509 U.S. at 593-95, 113 S.Ct. 2786. 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, 119 S.Ct. 1167, 143 L.Ed.2d 238 (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
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, 119 S.Ct. 1167; 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, 119 S.Ct. 1167. 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, 113 S.Ct. 2786; 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.").
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.
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
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:
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, 113 S.Ct. 2786. 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.'"
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.
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
Regarding the repairs to the air-conditioning units, Peatrowsky opined that he did not "advocate the combing of A/C units
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
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.
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 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.
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 "radar-derived 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
For the reasons stated above, the Court