Judges: Tharp
Filed: Oct. 16, 2013
Latest Update: Mar. 02, 2020
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 12-2688 MANPOWER, INC., Plaintiff-Appellant, v. INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA, Defendant-Appellee. _ Appeal from the United States District Court for the Eastern District of Wisconsin. No. 08 C 00085 — Lynn Adelman, Judge. _ ARGUED NOVEMBER 27, 2012 — DECIDED OCTOBER 16, 2013 _ Before FLAUM and TINDER, Circuit Judges, and THARP, District Judge* THARP, District Judge. In this insurance coverage dispute, Manpower,
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 12-2688 MANPOWER, INC., Plaintiff-Appellant, v. INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA, Defendant-Appellee. _ Appeal from the United States District Court for the Eastern District of Wisconsin. No. 08 C 00085 — Lynn Adelman, Judge. _ ARGUED NOVEMBER 27, 2012 — DECIDED OCTOBER 16, 2013 _ Before FLAUM and TINDER, Circuit Judges, and THARP, District Judge* THARP, District Judge. In this insurance coverage dispute, Manpower, ..
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In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 12‐2688
MANPOWER, INC.,
Plaintiff‐Appellant,
v.
INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA,
Defendant‐Appellee.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 08 C 00085 — Lynn Adelman, Judge.
____________________
ARGUED NOVEMBER 27, 2012 — DECIDED OCTOBER 16, 2013
____________________
Before FLAUM and TINDER, Circuit Judges, and THARP,
District Judge*
THARP, District Judge. In this insurance coverage dispute,
Manpower, Inc., claims various losses stemming from a
building collapse that left its French subsidiary unable to ac‐
* Of the Northern District of Illinois, sitting by designation.
2 No. 12‐2688
cess its office space for more than a year. Manpower won an
early victory against the Insurance Company of the State of
Pennsylvania (“ISOP”) when the district court initially held
that Manpower was covered under the so‐called “master”
policy issued by ISOP for its business interruption losses and
the losses of its business personal property and improve‐
ments and betterments. But the case went south for Man‐
power when the district court excluded Manpower’s ac‐
counting expert, without whom Manpower could not estab‐
lish its business interruption damages. Manpower was dealt
a second blow when the district court ruled that, although
the ISOP master policy provided coverage for the losses of
business personal property and improvements and better‐
ments, that coverage was not triggered because the same
losses were also covered under the subsidiary’s local French
policy, which had to be fully exhausted before coverage un‐
der the master policy was available. Manpower now appeals
the exclusion of its accounting expert—and the attendant
adverse judgment on its business interruption claim—as
well as the district court’s interpretation of the applicable
policies with respect to its property loss claims. For the rea‐
sons that follow, we reverse the district court’s exclusion of
the expert, and therefore its entry of judgment against Man‐
power on the business interruption claim. We affirm the dis‐
trict court’s judgment for ISOP on the property loss claim,
agreeing with the district court that the master policy does
not provide coverage for Manpower’s property losses.
BACKGROUND
Manpower, Inc., an international recruiting and staffing
firm headquartered in Milwaukee, is the parent company of
Right Management, Inc., located in Paris, France. On June 15,
No. 12‐2688 3
2006, a portion of a building located at 65 rue de la Victoire,
in which Right Management leased office space, collapsed,
seriously damaging part of the building as well as its under‐
ground garage. Right Management’s offices and furnishings
were not physically damaged, but they were rendered whol‐
ly inaccessible because the building could no longer be oc‐
cupied by order of the Parisian Department of Public Safety.
Eventually, Right Management relocated its business, with‐
out having gained access to its old office space and the fur‐
nishings therein; it therefore incurred replacement costs
when it furnished and improved its new office space. In the
meantime, Right had lost income and incurred expenses
from the interruption of its business operations. This dispute
arises from Manpower’s claims for insurance coverage for its
(Right’s) various losses.
Two insurance policies govern the coverage dispute: a
difference in conditions policy—the “master” policy—issued
by ISOP and covering Manpower’s operations worldwide,
and a local policy that was issued by AIG‐Europe, ISOP’s
French affiliate, to Right Management as the insured. In
simple terms, the local policy provides the first line of cover‐
age, and the master policy fills in the gaps by providing ex‐
cess coverage over the local policy’s limits, or by covering
specific losses that are not insured under the local policy.
Therefore, coverage under the master policy is triggered on‐
ly when a given loss is not covered in full by the local policy,
and the insured must exhaust coverage under the local poli‐
cy before making any claim under the master policy. The lo‐
cal policy itself comprises “general conditions,” which pro‐
vide basic coverage for fire and optional coverage for a
number of other events, and “special conditions,” which set
forth the terms of whatever optional coverage is in fact pur‐
4 No. 12‐2688
chased by the insured. As relevant here, Right obtained cov‐
erage under the local policy’s special conditions for “les
dommages matériels” (a term we set off in quotation marks
and leave untranslated until we address the parties’ dispute
over the correct translation of the term and whether it has a
clear meaning even if properly translated) to or affecting in‐
sured property.
Right Management first filed a claim under the local poli‐
cy and was paid $250,000 pursuant to a provision covering
losses caused by a lack of access by order of a civil authority
(here, the public safety agency’s order prohibiting occupancy
of the office building). Another $250,000 was paid out under
the master policy, exhausting the $500,000 sublimit under
that policy’s similar lack‐of‐access provision.
Manpower also claimed that under the master policy it
was entitled to reimbursement for its business interruption
losses and the loss of—not damage to—the business person‐
al property located in the office space Right Management
could no longer access, as well as the improvements and bet‐
terments it had made to that space and had to replicate in its
new offices. Manpower claimed losses of about $12 million
for these items. ISOP denied the claim under the master pol‐
icy for these losses, and Manpower filed suit in the district
court. The court’s rulings, which denied each of Manpower’s
claims—business interruption and property losses—are dis‐
cussed below.
A. Business Interruption Loss
1. Scope of Coverage.
On early cross‐motions for summary judgment on the
scope of coverage, the district court addressed the threshold
No. 12‐2688 5
issue of whether the master policy provides coverage for
business interruption losses. There was no dispute that the
local policy does not cover such losses, so the only question
was whether the master policy did so. Examining the lan‐
guage of the master policy, the district court noted that the
policy contains a business interruption provision covering
“[l]oss resulting from necessary interruption of or interfer‐
ence with business conducted by the Insured and caused by
loss, damage, or destruction … to real or personal property
as covered by this policy.” The amount of coverage is $15
million. Coverage for business interruption is also provided
by the lack‐of‐access provision, up to the sublimit of
$500,000, for interruptions caused by an order of civil au‐
thorities.
According to ISOP, Manpower could not access the mas‐
ter policy’s general business interruption provision because
its losses were not caused by the building collapse, but only
by the local government’s closing of the building. ISOP ar‐
gued that the collapse did not cause “direct physical loss …
or damage to” Right Management’s interest in the building,
because it damaged the parking structure and another area
of the building, but not Right’s offices, which were left intact,
though inaccessible. Therefore, ISOP argued, only the lack‐
of‐access provision, with its $500,000 sublimit, applied to the
incident.
Manpower, on the other hand, argued that the collapse
damaged its interests in its rental property because its inter‐
est was not limited to the portion of the building reserved
for its exclusive use, but also included common areas, eleva‐
tors and staircases, safety systems, and the building’s foun‐
dation and support structure, which were necessary to its
6 No. 12‐2688
use of the leased space. Manpower argued that any damage
to these features that caused its operations to stall or cease
triggered the coverage under the master policy’s general
business interruption provision. ISOP conceded that there
was some damage to the common areas of the building, but
maintained that Right’s offices were unharmed, and there‐
fore could have been used but for the order of the civil au‐
thorities that prohibited Right from occupying them.
In its November 3, 2009, opinion, the district court sided
with Manpower. Parsing the expert testimony submitted by
both sides, the district court concluded that “the evidence
establishes that the collapse rendered the entire [building]
unstable, at least for a period of eight to ten weeks following
the collapse,” during which temporary measures were taken
to ensure the building’s stability. Therefore, at least until
temporary repairs were completed, it was the collapse itself
that prevented Right from using its offices, and the order of
the Department of Public Safety “merely confirmed that the
collapse rendered the entire building unstable.” Accordingly,
the district court held that the $500,000 sublimit on losses
caused by lack of access by order of civil authorities did not
apply, and that “Manpower is entitled to reimbursement for
any business interruption losses it sustained between the col‐
lapse and the time the necessary repairs could have been, or
were, completed, up to $15 million.” The business‐
interruption coverage further entitled Manpower to “extra
expense” coverage, under the master policy provision that
applies to additional expenses “reasonably and necessarily
incurred resulting from loss, damage, or destruction to
property by any of the perils covered herein.” Under the pol‐
icy, extra expenses are defined as costs of operating the busi‐
ness “over and above the total cost that would normally
No. 12‐2688 7
have been incurred to conduct the business during the same
period had no loss or damage occurred.”
2. Expert Witness Eric Sullivan
The legal issue of coverage having been decided, the par‐
ties moved on to expert discovery to determine the amount
of the business interruption and extra expense losses. Man‐
power retained a forensic accounting expert, Eric Sullivan,
who opined that the total loss for these items was €7,503,576,
including an estimated business interruption loss of
€5,125,830. At the close of expert discovery, ISOP filed a mo‐
tion in limine to exclude Sullivan’s opinion, arguing that Sul‐
livan’s opinion on the business interruption loss was not the
product of a reliable methodology. There was—and is—no
dispute that Sullivan was “qualified as an expert by
knowledge, skill, experience, training, or education.” See
Fed. R. Evid. 702.
In ruling on the motion in limine, the district court recog‐
nized that the master policy itself sets forth the method by
which the business interruption loss should be calculated.
Section 9(B)(2) of the master policy provides that the loss
equals the net profit lost because of the business interrup‐
tion, adjusted for any costs and expenses paid during the in‐
terruption period that would have been paid even if no loss
had occurred (dubbed “continuing expenses,” as distin‐
guished from “non‐continuing expenses,” which are not in‐
curred while the operations are stopped). The policy further
sets forth, in section 9(B)(5), how the various inputs should
be estimated: “In determining the amount of net profit,
charges, and expenses covered hereunder for the purposes
of ascertaining the amount of loss sustained, due considera‐
tion shall be given to the experience of the business before
8 No. 12‐2688
the date of damage or destruction and to the probable expe‐
rience thereafter had no loss occurred.” The district court
concluded that Sullivan had followed the master policy’s
prescribed methodology by calculating lost revenues minus
non‐continuing expenses, which is the equivalent of calculat‐
ing net lost profits plus continuing expenses. Sullivan’s cal‐
culations were, therefore, “straightforward.” But the district
court further explained that whether the calculations were
reliable “turns on whether Sullivan used reliable methods
when selecting the numbers used in his calculations—
specifically, projected total revenues and projected total ex‐
penses.”
The district court answered its question in the negative.
The court was particularly troubled that Sullivan had used
an estimated growth rate of 7.76% to project total revenues.
Sullivan selected the projected growth rate by comparing the
total revenues from January to May 2006—the five‐month
period preceding the collapse—to total revenues earned in
the same five‐month period in the year 2005. The revenues
were 7.76% higher in 2006. But ISOP argued, and the district
court agreed, that Sullivan’s chosen growth rate was not rep‐
resentative of Right Management’s historical performance,
which included a negative average annual growth rate
of 4.79% during the period of 2003 to 2009, and a mere 3.8%
growth rate in the period of January 2005 to May 2006. Sulli‐
van had explained in his deposition that, although he re‐
viewed economic data going back to 2003, he used a shorter
period from which to extrapolate the growth rate because
according to Right’s managers, the recent acquisition of
Right by Manpower and the enactment of new policies and
installation of new managers had turned the company
around by the end of 2005.
No. 12‐2688 9
The district court concluded that Sullivan’s method could
be described as “basic growth‐rate extrapolation,” which a
treatise cited by court deemed “the simplest and most fre‐
quently used revenue forecasting method.” Although Sulli‐
van used an appropriate and recognized method to calculate
projected revenues, the district court concluded that Sulli‐
van’s “analysis [broke] down” at his choice of growth rate—
“one of the most important parts of the business‐
interruption calculation.” Citing Sullivan’s deposition testi‐
mony, the district court concluded that Sullivan “did little
more than assume that the growth that Right had experi‐
enced during the five months before the collapse was the re‐
sult of new management and thus would continue unabated
for the next fourteen months.” The district court concluded
that Sullivan was not entitled to uncritically accept the word
of Right’s managers: “Sullivan is not an expert on business
management, and thus Sullivan’s conversations with Right’s
managers cannot be considered a reliable basis for a revenue
forecast.” Moreover, Sullivan had not performed an econom‐
ic analysis of the factors that affected Right’s revenues to de‐
termine whether the growth in early 2006 was the result of
factors other than new management. In the words of the dis‐
trict court, the positive growth could have been “the result of
industry conditions that did not last throughout the inter‐
ruption period,” or simply “an aberration.” Only a more
thorough analysis of the reasons for the growth would have
supported Sullivan’s choice of a projected growth rate. In re‐
sponse to Manpower’s argument that the choice of growth
rate was a factual assumption that could be tested at trial,
the district court concluded that “an ordinary trier of fact
lacks the expertise necessary to judge how the actions of
Right’s managers impacted the company’s growth.” Without
10 No. 12‐2688
expert testimony on the issue, a trier of fact “could only
speculate as to whether there was any causal connection be‐
tween the managers’ actions and the increased growth.”
The court concluded that if “Sullivan [had] not chosen
such a short base period for calculating lost profits,” it
“might have found his analysis reliable.” The court ex‐
plained that Sullivan had access to historical data that
showed a declining trend in Right’s monthly revenues, but
that he instead chose to treat Right as essentially a new busi‐
ness, the valuation of which requires examination of other
indicators to make up for the lack of a track record. Since
Sullivan did not examine such indicators—such as the per‐
formance of comparable firms—his selection of the growth
rate was based simply on assumptions, rather than reliable
principles and methods. Concluding that the revenue projec‐
tion analysis was unreliable, the district court declined to
evaluate Sullivan’s calculation of non‐continuing expenses—
the other variable in the equation of the business interrup‐
tion loss.
Manpower moved for reconsideration of the decision, ar‐
guing that the district court had misunderstood Sullivan’s
analysis in numerous ways. It further argued that the district
court misapplied Rule 702 and Daubert by taking out of the
jury’s hands the questions whether Sullivan reasonably re‐
lied on the testimony of Right Management executives and
whether a growth rate derived from a five‐month period was
reasonable. In the alternative, Manpower requested that the
district court accept a supplement to Sullivan’s report, con‐
sisting of an affidavit in which Sullivan further explained
parts of his expert report. For example, he attested that he
“did more than simply select the 5‐month growth from one
No. 12‐2688 11
year to the next,” citing a table in his report in which he
sampled longer and shorter growth periods. He said he be‐
lieved that the growth rate yielded by the five‐month com‐
parison was more reliable and conservative than those de‐
rived from 12‐ and 14‐ month periods (20.1% and 13.67%,
respectively). He further included a table that calculated the
business interruption loss using various assumed growth
rates, including negative rates of growth. ISOP opposed the
motion for reconsideration on procedural and substantive
grounds.
The district court did not deem the supplementation of
Sullivan’s report procedurally improper, despite ISOP’s pro‐
testations, but it nevertheless denied the motion for recon‐
sideration. The court first reaffirmed its earlier determina‐
tion that “Sullivan’s use of the before‐and‐after method and
his decision to use basic growth‐rate extrapolation was relia‐
ble,” but his “decision to project lost revenues based on a
five‐month revenue base … and a growth rate of 7.76%” was
not. Again the district court noted that “it appears that Sulli‐
van did little more than assume that the growth that Right
had experienced during the five months before the collapse
was the result of new management and thus would continue
unabated for the next fourteen months.” Taking up Man‐
power’s argument that Sullivan had done much more, such
as conferring with Right’s management and calculating vari‐
ous growth rates, the district court concluded that “Sulli‐
van’s conversation with Right’s managers was not a reliable
basis for his selection of a growth rate,” and that Manpower
and Sullivan had failed to show “that compiling a list of pos‐
sible growth rates and then choosing a rate from this list is
an acceptable way to choose a growth rate in the field of fo‐
rensic accounting.” Rather than relying upon his judgment
12 No. 12‐2688
and his usual method for choosing growth rates over the
years of his career, Sullivan should have cited “literature
from the field of forensic accounting” because “it’s what’s
normal in the field of forensic accounting that matters.” The
district court reiterated that Sullivan seemed to be relying
merely on his intuition rather than established principles.
Accordingly, the district court denied all relief to Manpower.
This decision led inexorably to the court’s ruling on Septem‐
ber 6, 2011, that ISOP was entitled to summary judgment on
the business interruption claim, because without Sullivan’s
testimony, Manpower lacked any evidence to support the
existence or the amount of a business interruption loss.
B. Business Personal Property and Improvements and
Betterments
In the meantime, the parties had been proceeding apace
on Manpower’s other claim for coverage under the master
policy: for the replacement value of Right Management’s
business personal property and improvements and better‐
ments in the inaccessible office space. The district court con‐
cluded that the master policy covers the loss of the business
personal property and improvements and betterments, de‐
spite the absence of physical damage to these items, which
ISOP had argued was required. Citing section 10 of the mas‐
ter policy, the all‐risk provision covering “all risk of direct
physical loss of or damage to” covered property, the court
concluded that “Right sustained a direct, concrete and im‐
mediate loss of its business personal property and improve‐
ments and betterments due to physical damage to its office
building.” However, coverage under the master policy is
triggered only by a difference in conditions—that is, when
there is no or incomplete coverage under the local policy for
No. 12‐2688 13
that type of loss. Manpower initially contended that the gap
in coverage was established as a matter of law by virtue of
the fact that AIG‐Europe, the issuer of the local policy, had
closed its file upon paying out $250,000 for lack of access.
The district court rejected this position as an “absurd” inter‐
pretation of the local policy under which DIC coverage
would be available any time the insured did not obtain a de‐
sired payment from the primary insurer, or indeed, if it
simply skipped the step of filing a claim under the local pol‐
icy. The only question was whether the local policy by its
terms covered the loss, not whether a claim had actually
been filed or paid.
The court also rejected ISOP’s position that a difference in
conditions could be established only after a French court had
interpreted the scope of the local policy in other litigation
between Right and AIG‐Europe that was pending in Paris.
The district court concluded—and no party now disputes—
that “[w]hether the DIC [master] policy is in fact broader is a
question of law that can be resolved by this Court.” The dis‐
trict court therefore instructed Manpower, which bore the
burden of proof, that it could establish that the DIC policy is
broader than the local policy either by “asking that [the
court] compare the two policies …, or by establishing the ex‐
tent of coverage available under the [local policy] through
the litigation in France.” Manpower chose the first option,
moving for summary judgment on the issue of whether the
master policy’s coverage was broader than the local policy’s
coverage with respect to the claim for business personal
property and improvements and betterments.
To resolve that question, the district court had to deter‐
mine whether the local policy—like the master policy, see p.
14 No. 12‐2688
6, supra—provided coverage when the event causes a loss of
covered property, but not physical damage to it. The parties
agreed that the building collapse fell within the “all risk”
provision of the local policy; the question was simply
whether that provision applied only to instances in which
the property was physically altered by the insurable event.
As we have noted, the local policy consists of general
conditions and special conditions. Article 2 of the general
conditions provides—as translated from the French—that
there is coverage for “les dommages matériels,1 in other
words, damages that may affect the structure or substance of
the item, caused by an insured event, affecting … the build‐
ings … as well as all their fittings and fixtures …; furniture
and personal effects …; equipment …;[and] merchandise.”
Manpower argued that there was no “physical damage” to
its property and therefore no coverage under the local policy
(leaving it free to collect under the master policy). But the
district court rejected this interpretation of the local policy.
The court analogized Manpower’s loss to a theft of its prop‐
erty—while physically intact, the property was no longer
available for its use. And, the court thought it clear that the
local policy covered loss of property by theft, as most all‐risk
1
There is no agreed translation of the general conditions in the record
and therefore no agreement on what constitutes the covered “les dom‐
mages matériels.” Manpower’s translator chose “physical damage,”
while ISOP’s translator testified that it could also mean “material dam‐
age” or, in a legal context, “damage to property.” In the agreed transla‐
tion of the special conditions, however, the phrase is translated as “mate‐
rial damage.”
No. 12‐2688 15
policies would. The special conditions specifically excluded
from coverage losses from “thefts committed without vio‐
lence or threat to the person or without felonious entry,” cor‐
roborating the view that ordinary theft was covered under
the “physical damage” provision. The district court also con‐
sulted a dictionary (English, not French) and noted that one
definition of “damage” was “loss due to injury.” Reading the
policy as a whole, the court concluded that “damage” was
used in a broad sense that included “loss” as well as physical
damage. Therefore, as the court had already determined
with respect to the master policy, the local policy covered the
property loss even though the collapse did not physically
alter it. Since the local policy covered the loss, the DIC or
master policy’s coverage was not triggered.
With its claims against ISOP effectively extinguished,
Manpower asked the district court to stay the case pending
the outcome of the litigation in France between Right Man‐
agement and AIG‐Europe. The district court declined to do
so, concluding that it had ruled on every open issue in the
case against ISOP and that Manpower was now bound by
the court’s interpretation of the policies “no matter what
happens in France.” The court therefore entered final judg‐
ment in favor of ISOP, and Manpower now appeals.
DISCUSSION
Manpower raises two issues on appeal: the exclusion of
Eric Sullivan as an expert witness (and the accompanying
summary judgment for ISOP based on the absence of evi‐
16 No. 12‐2688
dence of a business interruption loss)2 and the interpretation
of the local policy in a manner that provides coverage for the
property loss, foreclosing recovery for that loss under the
master policy. We begin with the issues relating to the exclu‐
sion of Manpower’s damages expert on its claim for a busi‐
ness interruption loss.
I. Exclusion of Damages Expert
We review de novo the grant of summary judgment for
ISOP on the business interruption claim, but because that
decision was premised entirely on the absence of expert tes‐
timony to support the amount of the loss, from a practical
standpoint the only standard of review that counts is the one
that applies to the decision to exclude the expert. We review
de novo whether a district court followed the proper frame‐
work for evaluating expert testimony, and if it did, we re‐
view its decision to admit or exclude expert testimony for an
abuse of discretion. Schultz v. Azko Nobel Paints, Inc., 721 F.3d
426, 431 (7th Cir. 2013). In this case, the parties agree—and
we concur—that the district court properly applied the prin‐
ciples of Federal Rule of Evidence 702 and Daubert v. Merrell
Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Manpower ar‐
2
Although ISOP questions the procedural propriety of the motion to re‐
consider that Manpower filed on this issue after Sullivan was excluded,
it does not argue that we are empowered only to review the decision on
the motion to reconsider. Both orders, as well as the grant of partial
summary judgment on the business interruption claim, were of an inter‐
locutory nature and were merged into the final judgment entered on
June 20, 2012. See Kunik v. Racine County, 106 F.3d 168, 172‐73 (7th Cir.
1997). We find it unnecessary to separately discuss each decision, as the
district court’s rationale remained constant.
No. 12‐2688 17
gues, however, that the district court abused its discretion
when it barred Sullivan from testifying. We agree that Sulli‐
van’s opinion—although not bulletproof—is sufficiently reli‐
able to present to a jury and that in excluding Sullivan’s
opinion, the district court exercised its gatekeeping role un‐
der Daubert with too much vigor.
Rule 702, governing the admissibility of expert testimony,
provides:
A witness who is qualified as an expert by
knowledge, skill, experience, training, or ed‐
ucation may testify in the form of an opinion
or otherwise if: (a) the expertʹs 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 relia‐
ble principles and methods; and (d) the ex‐
pert has reliably applied the principles and
methods to the facts of the case.
In short, the rule requires that the trial judge ensure that any
and all expert testimony or evidence admitted “is not only
relevant, but reliable.” Daubert, 509 U.S. at 589. Daubert in‐
terpreted an earlier version of Rule 702, but it remains the
gold standard for evaluating the reliability of expert testi‐
mony and is essentially codified in the current version of
Rule 702. See Lees v. Carthage College, 714 F.3d 516, 521 (7th
Cir. 2013). The principles set forth in Daubert, which ad‐
dressed scientific testimony, apply equally to non‐scientific
fields. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147–49
(1999). No matter the nature of the witness’s expertise, Rule
18 No. 12‐2688
702 “establishes a standard of evidentiary reliability,” “re‐
quires a valid … connection to the pertinent inquiry as a pre‐
condition to admissibility,” and mandates that the testimony
have “a reliable basis in the knowledge and experience of
[the relevant] discipline.” Id. at 149 (quoting Daubert, 509
U.S. at 590, 592). See also Bielskis v. Louisville Ladder, Inc., 663
F.3d 887, 894 (7th Cir. 2011) (Ultimately, the expert’s opinion
“must be reasoned and founded on data [and] must also uti‐
lize the methods of the relevant discipline.”).
Here, the district court’s resolution of the question of reli‐
ability is the primary issue in dispute. District judges have
“considerable leeway in deciding in a particular case how to
go about determining whether particular expert testimony is
reliable.” Kumho Tire Co., 526 U.S. at 152. Reliability, howev‐
er, is primarily a question of the validity of the methodology
employed by an expert, not the quality of the data used in
applying the methodology or the conclusions produced.
“The soundness of the factual underpinnings of the expert’s
analysis and the correctness of the expert’s conclusions based
on that analysis are factual matters to be determined by the
trier of fact, or, where appropriate, on summary judgment.”
Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir. 2000).
“Rule 702’s requirement that the district judge determine
that the expert used reliable methods does not ordinarily ex‐
tend to the reliability of the conclusions those methods pro‐
duce—that is, whether the conclusions are unimpeachable.”
Stollings v. Ryobi Technologies, Inc., 725 F.3d 753, 765 (7th Cir.
2013). The district court usurps the role of the jury, and
therefore abuses its discretion, if it unduly scrutinizes the
quality of the expert’s data and conclusions rather than the
reliability of the methodology the expert employed. See id. at
766; Smith, 215 F.3d at 720.
No. 12‐2688 19
Admittedly, this is not always an easy line to draw. As
the Supreme Court observed in General Electric Co. v. Joiner,
522 U.S. 136, 146 (1997), “conclusions and methodology are
not entirely distinct from one another. Trained experts com‐
monly extrapolate from existing data.” The critical inquiry is
whether there is a connection between the data employed
and the opinion offered; it is the opinion connected to exist‐
ing data “only by the ipse dixit of the expert,” id., that is
properly excluded under Rule 702.
In this case, we conclude that the concerns that prompted
the district court to exclude Sullivan’s opinion implicated not
the reliability of Sullivan’s methodology but the conclusions
that it generated. Sullivan “utilize[d] the methods of the rel‐
evant discipline.” Bielskis, 663 F.3d at 894. The district court
recognized this several times. Sullivan consulted the policy
to ascertain the methodology for calculating the business in‐
terruption loss, and the district court expressly concluded
that his equation was consistent with the policy’s mandate.
And in selecting the first variable—Right’s projected revenue
if the collapse had not occurred—Sullivan utilized growth‐
rate extrapolation, which the district court determined was
sound. Indeed, the district court sought out a scholarly trea‐
tise and cited its endorsement of this methodology. Having
drawn those conclusions, the district court’s assessment of
the reliability of the methodology ought to have ceased (or
proceeded to the second variable in the business‐loss equa‐
tion). Instead, the district court drilled down to a third level
in order to assess the quality of the data inputs Sullivan se‐
lected in employing the growth rate extrapolation method‐
ology. What the district court took issue with was not Sulli‐
van’s growth‐rate extrapolation methodology, but rather his
selection of certain data from which to extrapolate. Indeed,
20 No. 12‐2688
the district court effectively acknowledged that its problem
was not with Sullivan’s methodology but with his data selec‐
tion when it stated that “had Sullivan not chosen such a
short base period for calculating lost revenues, I might have
found his analysis reliable.” R.132 at 7. The district court
thought Sullivan should have selected different data, cover‐
ing a longer period, as the base for his projection, but the se‐
lection of data inputs to employ in a model is a question
separate from the reliability of the methodology reflected in
the model itself.
We recently highlighted this distinction in Stollings,
where we held the district court’s exclusion of expert opinion
to be an abuse of discretion. There, as here, the district judge
had agreed that the expert correctly employed a valid meth‐
odology but found the expert’s opinion unreliable only be‐
cause he concluded that one of the key data inputs he used
was not sufficiently reliable. See 725 F.3d at 766. In reversing
the exclusion of the expert, we noted that even though the
data input in question “was undoubtedly a rough estimate,”
“[t]he judge should have let the jury determine how the un‐
certainty about [the accuracy of the data input] affected the
weight of [the expert’s] testimony.” Id. at 767.
We made the same point in Tuf Racing Products v. Am. Su‐
zuki Motor Corp., 223 F.3d 585, 591 (7th Cir. 2000). There, we
rejected a challenge to the admission of a C.P.A.’s earnings
projections even though those projections were the product
of “financial information furnished by Tuf and assumptions
given him by counsel of the effect of the termination on Tuf’s
sales.” Id. Notwithstanding that the data the accountant used
to make his projections came from the company and the
company’s counsel, we concluded that the district court’s
No. 12‐2688 21
admission of the evidence was permissible because the
methodology the accountant had employed “was well with‐
in the competence of a C.P.A.” Id.3 That the expert account‐
ant in Tuf could opine on future earnings on the basis of in‐
formation supplied by counsel should make clear that the re‐
liability of the data itself is not the object of the Daubert in‐
quiry. The reliability of data and assumptions used in apply‐
ing a methodology is tested by the adversarial process and
determined by the jury; the court’s role is generally limited
to assessing the reliability of the methodology—the frame‐
work—of the expert’s analysis.
The latitude we afford to statisticians employing regres‐
sion analysis, a proven statistical methodology used in a
wide variety of contexts, further illustrates the point. Regres‐
sion analysis permits the comparison between an outcome
(called the dependent variable) and one or more factors
(called independent variables) that may be related to that
outcome. As such, the choice of independent variables to in‐
3
The district court’s suggestion that future earnings projections are out‐
side the ken of a certified public accountant and require expertise in eco‐
nomics and business management, see, e.g., R.132 at 5 (“Sullivan is not an
expert on business management … [and] did no economic analysis”) is
difficult to square with our opinion in Tuf. Certified Public Accountants
regularly perform the tasks that Sullivan performed in analyzing the in‐
formation he considered in selecting a projected growth rate. They re‐
view financial statements, look for anomalies and trends, and consider
the impact of new developments on the company’s prospects. They regu‐
larly rely on management representations, estimates, and forecasts. Thus,
the district court’s conclusion that “Sullivan’s conversations with Right’s
managers cannot be considered a reliable basis for a revenue forecast,”
id., does not provide a sustainable basis for its exclusion of Sullivan’s
report.
22 No. 12‐2688
clude in any regression analysis is critical to the probative
value of that analysis. Nevertheless, the Supreme Court and
this Circuit have confirmed on a number of occasions that
the selection of the variables to include in a regression analy‐
sis is normally a question that goes to the probative weight
of the analysis rather than to its admissibility. See, e.g.,
Bazemore v. Friday, 478 U.S. 385, 400 (1986) (reversing lower
court’s exclusion of regression analysis based on its view
that the analysis did not include proper selection of varia‐
bles); Cullen v. Indiana Univ. Bd. of Trustees, 338 F.3d 693, 701‐
02 & n.4 (7th Cir. 2003) (citing Bazemore in rejecting challenge
to expert based on omission of variables in regression analy‐
sis); In re High Fructose Corn Syrup Antitrust Litigation, 295
F.3d 651, 660‐61 (7th Cir. 2002) (detailing arguments of coun‐
sel about omission of variables and other flaws in applica‐
tion of the parties’ respective regression analyses and declin‐
ing to exclude analyses on that basis); Adams v. Ameritech
Servs., Inc., 231 F.3d 414, 423 (7th Cir. 2000) (citing Bazemore
in affirming use of statistical analysis based solely on corre‐
lations—in other words, on a statistical comparison that em‐
ployed no regression analysis of any independent variables
at all). These precedents teach that arguments about how the
selection of data inputs affect the merits of the conclusions
produced by an accepted methodology should normally be
left to the jury. Here, the district court expressly concluded
that Sullivan developed an equation consistent with the dic‐
tates of the policy and applied an accepted methodology
(growth rate extrapolation). What he took issue with was
Sullivan’s choice of data—variables—to employ in that
methodology.
This is not to say that an expert may rely on data that has
no quantitative or qualitative connection to the methodology
No. 12‐2688 23
employed. In Stollings, we explained that Rule 702’s re‐
quirement that expert opinions be supported by “sufficient
facts or data” means “that the expert considered sufficient
data to employ the methodology,” observing by way of illus‐
tration that an opinion about an average gross sales price
could not be reliably supported by evidence relating to sales
to only one customer “because a single observation does not
provide a sufficient basis for calculating an average.” 725
F.3d at 766. But Sullivan did not rely on a single data point,
or on a subset of data that was plainly insufficient to support
application of the growth projection methodology. Nor was
the data he relied upon qualitatively inadequate. As Rule 703
reflects, an expert must employ “those kinds of facts or data”
on which experts in the field would reasonably rely, so Sulli‐
van could not have based his earnings projections on chang‐
es in the size of the white rhino population in Africa, but he
did not go amiss in basing them on Manpower’s actual earn‐
ings over a sustained period immediately preceding the in‐
terruption of the business and on the assessment of its man‐
agers as to its prospects going forward. As we noted in Tuf’s,
these are the kinds of data that accountants normally rely on
in calculating future earnings.
In excluding Sullivan’s business interruption opinion, the
district court took the view that Sullivan simply “compiled a
list of possible growth rates and then picked the one that
looked about right to him.” R.156 at 4. We conclude, howev‐
er, that Sullivan’s data selection was substantially more nu‐
anced and principled than the district court’s characteriza‐
tion reflects. Having obtained a comprehensive data set for
three years prior, for both the Paris office and for all of
Right’s offices in France, Sullivan calculated growth rates
over various periods. In addition, he vetted that data for
24 No. 12‐2688
anomalies and excluded some of the data as aberrant. He
further reviewed documents reflecting the changes that had
occurred in the company’s business over that period and dis‐
cussed those issues with the company’s current manage‐
ment. He reviewed the company’s projections for future
earnings (prepared prior to the collapse). These factors are
all patently relevant to a projection of future revenues and
taking them all into account, Sullivan selected a growth rate
based on the company’s performance in the five months im‐
mediately preceding the building collapse and used that
growth rate as the input in his calculations of losses attribut‐
able to the interruption of Manpower’s business. We cannot
agree with the district court that this approach reflects a data
selection based “on little more than Sullivan’s own intui‐
tion.” That the reasoning behind that choice could be chal‐
lenged as incomplete or faulty does not make it any less
grounded in real data.
Sullivan’s opinion regarding Manpower’s business inter‐
ruption loss was not, then, ipse dixit; it was “reasoned and
founded on data.” Bielskis, 663 F.3d at 894. There is no ques‐
tion that Sullivan accessed and used actual data about Right
Management’s past performance when he calculated a pro‐
jected growth rate. This fulfilled the policy’s instruction to
give due consideration to the experience of the business be‐
fore and after the loss was consistent with the district court’s
finding that the “before and after” method was appropriate.
Whether Sullivan selected the best data set to use, however,
is a question for the jury, not the judge. Assuming a rational
connection between the data and the opinion—as there was
here—an expert’s reliance on faulty information is a matter
to be explored on cross‐examination; it does not go to admis‐
sibility. Walker v. Soo Line R.R. Co., 208 F.3d 581, 589 (2000).
No. 12‐2688 25
“Our system relies on cross‐examination to alert the jury to
the difference between good data and speculation.” Schultz,
721 F.3d at 432.
ISOP’s further arguments in support of Sullivan’s exclu‐
sion are variations on the same theme and are unpersuasive
for the same reasons. For reasons already explained, its con‐
tention that Sullivan “did not follow any accounting princi‐
ples” is inconsistent not only with the record, but with the
district court’s express findings. And ISOP’s contention that
the opinion would not have been “helpful” to the trier of fact
within the meaning of 702 is premised on the supposed un‐
reliability of his methods, with the added argument that he
also unduly relied upon a French‐speaking associate to un‐
derstand Right’s expenses and other reports. The latter point
is not well developed, but we find nothing remarkable about
a paid expert preparing a report with the assistance of staff,
especially when interpretation of foreign documents is re‐
quired. Sullivan placed his assumptions in the record for
scrutiny according to the adversary process; no more was
required once the district court signed off on his basic meth‐
odology.
In the end, each criticism that the district court had in as‐
sessing the reliability of Sullivan’s testimony was a comment
on the soundness of the factual underpinnings of his calcula‐
tion. Indeed, one could envision the district court’s rulings as
a roadmap for ISOP’s cross‐examination of Sullivan. But the
district court supplanted that adversarial process with its
admissibility determination, leaving Manpower with no
competent evidence to prove its business interruption dam‐
ages and ensuring summary judgment for ISOP. We con‐
clude that the district court set the bar too high and therefore
26 No. 12‐2688
abused its discretion in barring Sullivan’s testimony about
the business interruption loss. Accordingly, its judgment for
ISOP on the business interruption claim cannot stand. See
Schultz, 721 F.3d at 434 (admissibility of expert testimony
and appropriateness of summary judgment collapsed into
single issue).
II. The Local Policy’s Coverage of Right’s Losses of
Property
Manpower’s next contention on appeal is that the district
court wrongly interpreted the local policy to provide cover‐
age for the replacement value of its business personal prop‐
erty and improvements and betterments, thereby foreclosing
Manpower’s claim against ISOP for coverage under the mas‐
ter policy. We review this issue—the equivalent of contract
interpretation—de novo. Miller v. St. Paul Mercury Ins. Co., 683
F.3d 871, 874 (7th Cir. 2012).
The parties are remarkably blasé about their presentation
of the applicable law on this issue, which according to the
terms of the local policy is the French Insurance Code.4
Manpower did not supply this Court or the district court
with the applicable French statutes or cite any French legal
authority in favor of its position, nor does it cite any legal
authority for its dubious contention that that French civil
4
The local policy further provides that “French courts shall be the only
courts of competent jurisdiction,” see General Conditions, Article 21; pre‐
sumably this explains why there is litigation in France under the local
policy proceeding separately from Manpower’s claims against ISOP un‐
der the master policy. However, Manpower specifically chose to have
the district court interpret the local policy rather than await an interpre‐
tation by the French court.
No. 12‐2688 27
law does not materially differ from Wisconsin common law
as it pertains to the interpretation of contracts. ISOP, for its
part, cites a provision of the French Civil Code that provides
that contracts should be interpreted according to “the com‐
mon intent of the parties rather than the literal meaning of
the terms.” We have previously recognized this feature of
French law, as well as its practical limitations in light of oth‐
er portions of the Civil Code that limit the use of parol evi‐
dence. See Bodum USA, Inc. v. La Cafetiere, Inc., 621 F.3d 624,
629 (7th Cir. 2010). But we have not been directed to any evi‐
dence in the record of the parties’ intent, common or other‐
wise, except for the language of the contract. So we, like the
district court, begin and end there. But, as the proponent of
coverage, Manpower’s presentation leaves much to be de‐
sired.
Manpower’s primary argument on appeal is that the dis‐
trict court misinterpreted the local policy by construing the
term “les dommages matériels” in the local policy’s general
conditions to include loss in addition to physical damage to
property. The parties did not agree on a translation of “les
dommages matériels.”5 Manpower prefers the translation
“physical damage” to “material damage,” for obvious rea‐
sons, and in the district court it supplied a certified transla‐
tion of the general conditions that yields that result. R.194‐1.
In response, ISOP disputed Manpower’s translation and as‐
5
As discussed further infra, however, the parties did agree to a transla‐
tion of the special conditions that includes the term “les dommages ma‐
tériels.” The parties’ agreed translation of the special conditions trans‐
lates the term to mean “material damage.”
28 No. 12‐2688
serted that, although “les dommages matériels” has been
translated as “material damage” and “physical damage,”
there are other possible translations, including “property
damage” or “damage to property.” ISOP supported these
alternative definitions by an affidavit from a certified trans‐
lator, who attested that in the legal context in particular,
“damage to property” is the most likely interpretation. See R.
197‐4.
The district court noted that the parties did not agree on
an English translation of the general conditions, but it decid‐
ed that, for purposes of the motion, it would “assume that
Manpower’s translation is correct.” Even crediting Manpow‐
er’s translation, however, the district court concluded that
the policy as a whole could not be read to limit coverage un‐
der the all‐risk provision solely to events that caused physi‐
cal damage to property. The court reasoned that certain
types of theft were excluded from coverage, suggesting that
theft—which entails loss but not damage—was otherwise
covered by the policy.
Our review is de novo, but Manpower does not make a
compelling case for reading the contract any differently. Its
scant two pages of analysis boils down the tautology that
“les dommages matériels” means “physical damage,” and
only physical damage, because that is what it means.6 We
6
Manpower also maintains that AIG Europe’s denial of coverage to
Right under the local policy corroborates its argument that the local poli‐
cy insures only against physical damage to property. Certainly Man‐
power would not want to be held to its argument that the insurer is the
ultimate arbiter of a policy’s meaning, and Manpower’s resort to litiga‐
tion here and in France belies that it has any such belief.
No. 12‐2688 29
find particularly unpersuasive Manpower’s contention that
because the master policy refers to “physical loss of” proper‐
ty in addition to “damage,” the absence of “loss of” lan‐
guage in the local policy must mean that losses cannot be
part of “damage.” Manpower offers no reason why the mas‐
ter policy, written in English and issued to Manpower by
ISOP, and the local policy, written in French and issued to
Right Management by AIG‐Europe, should be read as
though they were a single document in which words should
be given consistent meanings throughout. It seems only nat‐
ural that these two policies would have linguistic differences
and that the meaning of the language used in one would not
necessarily inform the meaning of the language in the other.
By contrast, one would expect terms appearing in both
the general and special conditions, which together make up
the unified local policy, to have the same meaning. The up‐
shot of that sensible notion is confirmation of the district
court’s view that the local policy covers Manpower’s losses,
so the master policy does not. As previously noted, notwith‐
standing their inability to agree on a translation of the gen‐
eral conditions, the parties put an agreed translation of the
special conditions in the record. It translates the phrase “les
dommages matériels” to mean “material damage.” Man‐
power’s insistence that the same term elsewhere in the same
policy means “physical” damage is irrational.
So the local policy, in our view, covers “material” damag‐
es. Settling on that translation does not on its face resolve the
question of whether the local policy provides coverage for
losses beyond those involving physical damage to property,
but we conclude for another reason that it does. The local
policy is an “all risks” policy; it covers “all risks” except
30 No. 12‐2688
those that are expressly excluded, and nothing in the long
list of excluded events applies to what occurred here. The
special conditions state that the contract “guarantees the in‐
sured goods at the address indicated against All Risks, with
exclusion noted”; and the “items covered” included all items
“belonging to” the insured party, with exclusions that do not
apply here. Therefore, Right’s business personal property
and improvements and betterments located within the office
space were covered property. As to whether the collapse was
a “covered event,” again, the policy states that the insurance
“covers All Risks Y regardless of the event causing the mate‐
rial damage or damage to the insured item,” again with ex‐
clusions that do not apply to the building collapse. Notably,
the list of exclusions contains a number of specific “losses”—
such as “any loss or voluntary dispossession of documents
or items in a fraudulent manner” and “any unexplained dis‐
appearance, difference, or loss noted during inventory”—as
well as certain thefts, namely those “committed without vio‐
lence or threat to the person or without felonious entry to
the areas.” If the all‐risks provision by its terms already ex‐
cluded any event that did not cause physical damage, these
exclusions would have no purpose. And as ISOP points out,
under the French Civil Code, Article 1161, “[a]ll clauses in
agreements are interpreted in relation to one another, giving
each the meaning that results from the entire agreement.”
Because the local policy covers the loss of access to Right
Management’s furnishings, other business personal property,
and improvements and betterments, Manpower cannot ac‐
cess coverage for these items under the master policy unless
it first exhausts its coverage under the local policy. Accord‐
ingly, we affirm the district court’s grant of summary judg‐
ment in favor of ISOP on this claim.
No. 12‐2688 31
* * *
The district court’s exclusion of Eric Sullivan as an expert
is VACATED and its grant of summary judgment for ISOP on
the business interruption loss claim is REVERSED. Because the
district court did not evaluate the full scope of Sullivan’s ex‐
pert testimony after concluding that it was unreliable as to
the projected growth rate, it may still consider the other ar‐
guments ISOP raised in its motion in limine when determin‐
ing whether to allow the testimony. The district court’s grant
of summary judgment for ISOP on the property claim is
AFFIRMED. The case is REMANDED to the district court for
proceedings consistent with this opinion.