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                                                       [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 20-10544
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 2:17-cv-00111-LGW-BWC



GREATER HALL TEMPLE CHURCH OF GOD,

                                                          Plaintiff - Appellant,

                                  versus

SOUTHERN MUTUAL CHURCH INSURANCE COMPANY,

                                                         Defendant - Appellee.

                      ________________________

               Appeal from the United States District Court
                  for the Southern District of Georgia
                     ________________________

                              (July 15, 2020)

Before WILSON, NEWSOM, and ANDERSON, Circuit Judges.

PER CURIAM:
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      After Southern Mutual Church Insurance Company denied an insurance

claim filed by Greater Hall Temple Church of God, Greater Hall sued, alleging

breach of contract. The case comes to us on appeal after the district court granted

Southern Mutual’s motions to strike the testimony of Greater Hall’s expert

witnesses and granted Southern Mutual’s motion for summary judgment. After

careful review of the record, we affirm the district court’s decision to exclude

Greater Hall’s expert witnesses but reverse its decision to grant summary judgment

in favor of Southern Mutual.

                                            I

      The relevant facts are known to the parties, so we repeat them only briefly

here. In March 2016, Southern Mutual issued an insurance policy to Greater Hall

covering “direct physical loss to covered property” so long as the loss is “caused

by a covered peril.” The policy also states that it “do[es] not cover loss caused by

water,” which it defines to include “[f]lood, surface water, waves, tidal water, or

the overflow of a body of water.” The policy further provides that it “do[es] not

cover loss to the interior of buildings or structures or to personal property in the

buildings or structures caused by rain . . . unless . . . [the rain] enter[s] through

openings made by a specified peril.” “Specified [p]erils” include, among other

things, a “windstorm.”




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       After Hurricane Matthew hit Brunswick, Georgia in October 2016, Greater

Hall filed an insurance claim with Southern Mutual, alleging that it had sustained

covered property damage in the storm’s wake. This case centers on damage to the

roof of Greater Hall’s church building.1 Greater Hall’s insurance claim alleged

that wind from Hurricane Mathew caused leaks in the church’s roof, which

resulted in water damage to the church’s interior. In response, Southern Mutual

retained an independent field adjuster—Alan Taylor—who inspected the church

and determined that the damage was caused not by wind, but by pre-existing

structural issues. Relying on Taylor’s findings, Southern Mutual then denied

Greater Hall’s church-roof claims on the ground that they were not covered by its

policy.

       Greater Hall filed suit in the Superior Court of Glynn County, Georgia,

alleging that Southern Mutual had violated the terms of the insurance agreement by

failing to pay the church-roof claims. Southern Mutual then removed the case to

the U.S. District Court for the Southern District of Georgia. In May 2019,

Southern Mutual moved for summary judgment. Along with its summary-

judgment motion, Southern Mutual also filed two motions to strike, which sought




1
  It appears that Greater Hall claimed additional property damage—including damage to the
church building’s door awnings and patio cover, as well as damage to its parsonage building and
its chain-link fence. Southern Mutual did not contest these additional claims, however, so they
are not at issue here.


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to prevent John Kern and Shawn Brown—two of Greater Hall’s witnesses—from

testifying as experts. After Greater Hall responded to Southern Mutual’s motion

for summary judgment by relying, in part, on the affidavit of Alfred Teston—a

witness who purportedly observed the church before and after the hurricane and

offered his opinions as to the cause of the damage—Southern Mutual filed another

motion to strike, alleging that Teston’s expert testimony had not been timely

disclosed.

      The district court referred each of the motions to strike to a magistrate judge.

The magistrate judge granted Southern Mutual’s motions to strike the expert

testimony of Kern and Brown, holding that neither had acquired the requisite

experience or had used a sufficiently reliable methodology in formulating their

opinions. The magistrate judge also granted in part Southern Mutual’s motion to

strike the affidavit of Alfred Teston. According to the magistrate judge, Teston’s

expert opinions were not timely disclosed, so although Teston was free to “recount

his physical observations,” he could not testify regarding his “opinions as to the

cause of the damage to the roof and the source of any subsequent leaks.”

      The district court overruled Greater Hall’s subsequent objections to the

magistrate judge’s order. Relying on Daubert v. Merrell Dow Pharmaceuticals,

Inc., 

(1993), the district court held that, based on the record, “it [wa]s

apparent that neither Mr. Kern nor Mr. Smith are qualified to be experts” and that



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“[n]either [of the experts’] approach[es] [wa]s sufficiently reliable.” It further held

that Teston’s affidavit was also properly stricken—at least as to its expert-opinion

testimony—because “Greater Hall was required to disclose Mr. Teston as an expert

. . . by December 14, 2018,” but it “did not do so until June 17, 2019.”

Accordingly, the district court held that the magistrate judge’s order was not

erroneous.

      The district court then proceeded to grant Southern Mutual’s motion for

summary judgment, relying on two separate grounds. First, the district court held

that the meaning of the term “surface water”—which Greater Hall’s insurance

contract specifically excludes from coverage—should be interpreted to include

rainwater that collects on a roof. Therefore, the court reasoned, “Greater Hall’s

claim fails because the Policy does not insure the church for damage caused by

surface water, which is what Plaintiff alleges here.” Second, and separately, the

court held that “[e]ven if [it] did not adopt this definition, Greater Hall’s claim

would still fail” because “Greater Hall has presented no admissible evidence [that]

damage to the church’s roof [was] caused by [Hurricane Mathew].”

      This is Greater Hall’s appeal.

                                           II

      First, we consider the district court’s decision to exclude the testimony of

Greater Hall’s three expert witnesses. “We review the district court’s decision to



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exclude expert testimony under Federal Rule of Evidence 702 for abuse of

discretion.” Sorrels v. NCL (Bahamas) Ltd., 

, 1281 (11th Cir. 2015)

(alterations adopted) (quotation omitted). Generally, this means that we will “defer

to the district court’s ruling unless it is manifestly erroneous.” Rink v. Cheminova,

Inc., 

, 1291 (11th Cir. 2005) (quotation omitted).

                                           A

      First up is John Kern. Kern inspected the interior and exterior of Greater

Hall’s church building on April 24, 2017—about six months after Hurricane

Matthew passed through Brunswick. After his inspection, Kern authored a two-

page report, which stated that the “majority” of the damage to the church building

was “due to the winds racking the wood frame structure and the wind causing

uplift pressure on the R-Panel roof.”

      The district court, however, affirmed the magistrate judge’s order excluding

Kern’s expert testimony because “Greater Hall did not produce sufficient evidence

to qualify Mr. Kern” and because Kern’s approach was not “sufficiently reliable

under a Daubert analysis.” Based on our review of the record, we cannot say that

the district court’s decision to do so was “manifestly erroneous.” Kern admitted

that he had little experience with the type of roofing at issue in this case, and

Kern’s defense of his ultimate conclusion—that the hurricane had caused the

damage to the church building’s roof—was far from convincing. Kern admitted,



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for instance, that his opinion was not based on “any method that ha[s] a known or

potential rate of error” and that there was not “any scientific or objective basis

behind [his] opinion.” When he was asked how the accuracy of his opinion could

be tested, he responded: “It is my opinion as a professional engineer with lots of

roof experience . . . . I have no idea how you would [test it].” We’ve long held,

however, that “[t]he trial court’s gatekeeping function requires more than simply

taking the expert’s word for it.” United States v. Frazier, 

, 1261

(11th Cir. 2004) (quotation omitted). The reliability prong of Rule 702 cannot be

established “merely by the ipse dixit” of a purported expert.

court

therefore did not err in excluding Kern’s expert testimony.

                                          B

      Greater Hall’s next expert, Shawn Brown, faces a similar fate. Brown

visited the church building on four occasions after Hurricane Matthew, originally

for the purpose of bidding on the roof repair contract. Eventually, though, Brown

prepared a two-and-a-half page expert report in this case, which concluded that the

church building’s roof damage “was caused by high winds and rain which occurred

in October, 2016.”

      The district court affirmed the magistrate judge’s order excluding Brown’s

expert testimony, holding that his opinion was not sufficiently reliable under

Daubert. Again, our review of the record shows that the district court’s decision to



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do so was not “manifestly erroneous.” Brown admitted that he was “not an expert

in wind or wind velocity” and that his opinion was not based on “science or

measurements,” but merely on “common sense” that “anyone” could have used.

His claim, essentially, was that because he personally experienced the high winds

during Hurricane Matthew, he could form the opinion that those winds caused the

church building’s roof damage. That isn’t enough to satisfy the reliability prong of

Rule 702. We’ve stated that “[c]ourts are cautioned not to admit speculation,

conjecture, or inference that cannot be supported by sound scientific principles.”

Rider v. Sandoz Pharm. Corp., 

, 1202 (11th Cir. 2002). Brown

offered no principles—much less scientific ones—to support his opinion. The

district court did not err, therefore, in excluding his opinion.

                                           C

      Finally, there’s Alfred Teston. Teston is the owner of Coastal Roofing

Company, and in 2015 he installed the roof on Greater Hall’s church building.

After Hurricane Matthew, Teston examined the roof and prepared a two-and-a-half

page affidavit stating that he could see that “the entire roof had shifted or moved”

since he installed it. Teston also opined that “[t]he movement of the roof is

consistent with being subjected to high winds.”

      The district court affirmed the magistrate judge’s order excluding Teston’s

affidavit—at least, the portions of it that opined on the cause of the roof damage—



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on the ground that it was not timely disclosed. According to the district court,

“because [Teston] gave an opinion about causation . . . Greater Hall was required

to disclose Mr. Teston as an expert, per court order . . . by December 14, 2018.” It

stated that Greater Hall did not do so, however, until June 17, 2019. The district

court found no error in the magistrate judge’s conclusion that the untimely

disclosure of Teston’s expert opinion was not “substantially justified or . . .

harmless” under Federal Rule of Civil Procedure 37(c)(1) and it therefore affirmed

the magistrate judge’s decision to exclude Teston’s expert opinion.

      For two reasons, we see no reversible error here. First off, we agree with the

district court that because Teston sought to testify regarding the cause of the

damage to the church’s roof—an event he did not himself witness—Teston offered

an opinion “based on scientific, technical, or other specialized knowledge within

the scope of Rule 702.” Fed. R. Evid. 701(c). Greater Hall was therefore required

to “disclose . . . the identity” of Teston “at the times and in the sequence that the

court orders.” Fed. R. Civ. P. 26(a)(2)(A), (D). Although Greater Hall is correct

that it identified Teston as an expert in its initial disclosures, those disclosures

incorrectly described the subject of his opinion as relating only to “the cost of

repairs for the roof.” Teston’s eventual affidavit said nothing about the cost of

repairs—it dealt entirely with the cause of the underlying damage. Greater Hall

was therefore under an obligation, pursuant to Federal Rule of Civil Procedure



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26(e)(1)(A), to supplement its initial disclosures, which it never did. See

who has made a disclosure under Rule 26(a) . . . must supplement or correct

its disclosure or response . . . in a timely manner if the party learns that in some

material respect the disclosure or response is incomplete or incorrect . . . .”).

       Second, even if Greater Hall hadn’t violated Rule 26(a)(2)(A)’s disclosure

requirement, it failed to timely provide Southern Mutual with a copy of Teston’s

expert report, as required by Rule 26(a)(2)(B). In its scheduling order, the district

court set December 14, 2018 as the last day on which Greater Hall could serve its

expert witness reports. But Greater Hall did not provide Southern Mutual with a

copy of Teston’s affidavit—the first document in which Teston’s opinion was

disclosed—until more than six months after this deadline, on June 17, 2019.

Greater Hall therefore failed to timely disclose Teston’s opinion. And, like the

district court, we hold that this failure was not “substantially justified or . . .

harmless.” Fed. R. Civ. P. 37(c)(1). Greater Hall has offered no explanation for its

failure to timely disclose Teston’s expert opinion, and it has not shown that its late-

breaking disclosure did not prejudice Southern Mutual, who had no opportunity to

depose Teston. See Leathers v. Pfizer, Inc., 

, 697 (N.D. Ga. 2006)

(“The burden of establishing that a failure to disclose was substantially justified or

harmless rests on the nondisclosing party.”).




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       Because Greater Hall failed to timely disclose Teston’s expert opinion—and

because we’ve held that “[c]ourts have broad discretion to exclude untimely expert

testimony,” Guevara v. NCL (Bahamas) Ltd., 

, 718 (11th Cir.

2019)—we hold that the district court did not err in excluding Teston’s expert

opinion.

                                      *    *    *

       In sum, we hold that the district court did not err in affirming the magistrate

judge’s order excluding the expert testimony of John Kern, Shawn Brown, and

Alfred Teston. As the magistrate judge noted, however, these witnesses are still

permitted to offer lay witness testimony under Federal Rule of Civil Procedure

701.

                                          III

       Next, we consider the district court’s decision to grant Southern Mutual’s

motion for summary judgment. We review the grant of summary judgment de

novo, applying the same legal standards as the district court. Whatley v. CAN Ins.

Cos., 

, 1313 (11th Cir. 1999). We therefore consider “the evidence

and all factual inferences therefrom in the light most favorable to the party

opposing the motion.” Shaw v. Conn. Gen. Life Ins. Co., 

, 1282

(11th Cir. 2003) (quotation omitted). Here, that means we consider the evidence in

the light most favorable to Greater Hall, and we ask whether the evidence,



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considered in that light, “is such that a reasonable jury could return a verdict for

the nonmoving party.” Anderson v. Liberty Lobby, Inc., 

, 248 (1986).

                                            A

      The district court granted summary judgment for Southern Mutual on two

separate grounds, and we will consider each in turn. First, the district court held

that Greater Hall’s claim—even as alleged—is not covered by its policy with

Southern Mutual and therefore fails. To reach this conclusion, the district court

focused on a specific provision of the insurance contract—namely, its statement

that it “do[es] not cover loss caused by water,” which it defines to include “[f]lood,

surface water, waves, tidal water, or the overflow of a body of water.” Relying on

caselaw from the U.S. District Court for the Northern District of Ohio, which it

found “persuasive,” the district court held that the term “surface water” should be

interpreted under Georgia law “to include rain collecting on a roof and leaking into

a structure.” And because that “is what [Greater Hall] alleges here,” the district

court held, its claim must fail.

        We disagree. For two reasons, we think that the district court construed

Greater Hall’s claims too narrowly—and that, properly construed, Greater Hall’s

claims (at least as alleged) are covered by its policy with Southern Mutual. First

off, the district court’s “surface water” analysis considers only one of the types of

damage that Greater Hall alleges: the damage to the interior of the church. The



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court makes no mention of how its “surface water” analysis would bar Greater

Hall’s claim that damage to the church roof itself is also covered by its policy.

      Second, and more importantly, the district court’s “surface water” analysis

ignores Greater Hall’s principal allegation regarding the cause of its damages: its

allegation that wind from Hurricane Matthew caused damage to the church

building’s roof. Greater Hall does not merely allege—as the district court’s

“surface water” analysis seems to presume—that rainwater accumulated on the

church building’s roof and seeped into its interior. Rather, it claims that winds of

Hurricane Matthew caused structural damage to the roof, creating holes through

which rainwater was able to enter and cause damage to the church building’s

interior. Both of these types of damage are explicitly considered—and covered—

by Greater Hall’s contract with Southern Mutual. As to the roof damage, no one,

including Southern Mutual, has disputed that if wind from Hurricane Matthew

caused damage to the roof of the church, the damage would be covered by Greater

Hall’s policy. And this makes sense, given that hurricanes and wind are not among

the “perils excluded” by the policy. And as to the interior damage, although the

contract states that, generally, it “do[es] not cover loss to the interior of buildings

or structures or to personal property in the buildings or structures caused by rain,”

it makes clear that it does cover interior rain damage as long as the rain “enter[s]




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through openings made by a specified peril.” And the contract defines “[s]pecified

[p]erils” to include a “windstorm.”

      Based on our review of the record, therefore, the real question is not whether

Greater Hall’s allegations of damage—if proven—would be covered by its policy

with Southern Mutual. We think it clear that they would be. The question, rather,

is whether Greater Hall has produced sufficient evidence in support of those

allegations to survive summary judgment. And that question takes us to the district

court’s second ground for granting summary judgment in Southern Mutual’s favor.

                                         B

      The district court held that, even aside from its “surface water”-provision

analysis, “Greater Hall’s claim would still fail” because Greater Hall “presented no

admissible evidence [that] damage to the church’s roof [was] caused by a wind

storm.” Relying on this Court’s unpublished decision in Nix v. State Farm Fire &

Casualty Company, 444 F. App’x 388 (11th Cir. 2011), the district court held that

“proving causation requires expert testimony.” And because all of Greater Hall’s

purported expert testimony had been excluded, the district court held, Greater Hall

could not rebut Southern Mutual’s “unchallenged expert witness report,” which

suggested that “the damage to Greater Hall’s church building was caused by poor

workmanship,” not Hurricane Matthew.




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      We disagree. The central issue here—now that all of Greater Hall’s expert

witnesses have been excluded—is whether expert testimony is required to prove

that a certain force (namely, wind from Hurricane Matthew) produced the damage

that Greater Hall claims. The district court treated this issue as a question of state

law, and neither party challenges that determination on appeal. We therefore

assume that Georgia law controls. See Bahamas Sales Assoc., LLC v. Byers, 

, 1342 (11th Cir. 2012) (“If the parties litigate the case under the

assumption that a certain law applies, we will assume that that law applies.”).

      Our reading of Georgia law indicates that expert testimony is not necessarily

required to prove causation in the insurance-contract context, and that—even in the

face of admissible expert testimony from the defendant—the plaintiff may satisfy

its burden of proof with circumstantial lay testimony. In United States Fire

Insurance Company v. Tuck, the Georgia Court of Appeals considered whether the

plaintiff, who alleged that an insurance company improperly denied his claim, had

presented sufficient causation evidence to withstand judgment as a matter of law.

, 436–37 (Ga. Ct. App. 1967). Despite the fact that the plaintiff

provided neither expert testimony nor direct lay witness testimony in support of his

allegation that lightning had caused damage to his pool, the court held that the

plaintiff had satisfied his burden of proof—even in the face of admissible expert

testimony from the defendant.

–38. 
According to the court, “[w]hen a



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reasonable mind may accept the circumstantial evidence presented as adequate to

support a finding in favor of one of the parties on an issue of fact, a verdict based

on such finding is authorized.”
 Id. at 437 
(quotation omitted). “[V]isual

observation,” the court held, “is not essential in determining whether a particular

force produced a given result.”
 Id. Thus, the 
court held that the plaintiff’s

circumstantial causation evidence—which included the testimony of two witnesses

who saw a lighting strike near the pool on the day in question, as well as the

plaintiff’s own testimony that when he returned home after the storm, the pool had

been crushed—“furnished facts from which a logical conclusion could be drawn

that lightning did strike and destroy the pool.”
 Id.

      We think 
a similar logic applies to this case. Although it’s true that Greater

Hall presents no admissible expert testimony and that none of Greater Hall’s lay

witnesses actually saw Hurricane Matthew cause the roof damage to the church

building, it seems to us that Greater Hall’s witnesses provide enough

circumstantial evidence for a jury to draw the conclusion that the hurricane did, in

fact, cause the roof damage. G. Bobby Hall, the pastor at Greater Hall, testified

that when he returned to the church after the storm, he noticed that “[t]rees were

uprooted and debris was everywhere.” He also stated that he saw leaks in the

church building that he had never seen before. Alfred Teston (who, recall, could

present lay testimony even though his expert testimony was excluded) testified that



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he observed the church building’s roof both before and after Hurricane Matthew—

and that, after the storm, he noticed that “the entire roof had shifted.” And Shawn

Brown (who also could present lay testimony) stated that when he observed the

church a few days after the hurricane, he noticed that nearby “oak trees that [were]

about 70 [or] 80 years old [had been] rooted up out of the ground.” Taken

together, we think that this evidence “furnished facts from which a logical

conclusion could be drawn” that Hurricane Matthew caused the damage to the roof

of Greater Hall’s church building. 
Tuck, 155 S.E.2d at 437
.

      Southern Mutual’s arguments do not convince us otherwise. Southern

Mutual, like the district court, relies heavily on our unpublished decision in Nix v.

State Farm Fire & Casualty Company, which it claims stands for the proposition

that “proving causation requires expert testimony.” Br. of Appellee at 26 (citing

Nix, 444 F. App’x at 390). There are a couple of problems with Southern Mutual’s

reliance on Nix. First, Nix dealt with Alabama—not Georgia—law. Nix, 444 F.

App’x at 389. Second, we don’t think that Nix should be read as requiring expert

testimony to prove causation. Although the Nix Court granted summary judgment

for the defendant in that case—and held that the defendant’s expert provided

“uncontroverted evidence” showing that the basement wall at issue collapsed

because it was not properly designed—it suggested that the plaintiff could have

survived summary judgment through lay witness testimony, so long as the witness



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“had personal knowledge about the construction of the [plaintiffs’] home.”
 Id. at

390. 
Applying that principle here, Greater Hall survives summary judgment

through the lay-witness testimony of Alfred Teston, who personally constructed

the church roof at issue.

                                           *    *    *

       In sum, we hold that the district court erred in granting summary judgment

for Southern Mutual. The text of the insurance policy does not preclude Greater

Hall’s claim, and Greater Hall provided sufficient lay-witness evidence for a

reasonable jury to find in its favor.2

                                               IV

       Accordingly, we AFFIRM the district court’s decision to exclude the expert

testimony of John Kern, Shawn Brown, and Alfred Teston, and we REVERSE its

decision to grant summary judgment in favor of Southern Mutual.




2
  There’s one last issue we need to address. Greater Hall claims that it is entitled to bad-faith
penalties and reasonable attorney’s fees pursuant to Georgia Code Annotated § 33-4-6(a), which
authorizes such penalties and fees when an insurer refuses to pay a covered claim “in bad faith.”
The district court granted Southern Mutual’s motion for summary judgment on this claim,
holding that “[b]ecause the Court granted summary judgment on Greater Hall’s only underlying
claim in this case—breach of contract—the Court must also grant summary judgment on the
issue of bad faith penalties and attorney’s fees.” Because we are reversing the district court’s
grant of summary judgment on Greater Hall’s breach-of-contract claim, we remand Greater
Hall’s bad-faith claim for reconsideration.


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