Dallas Fort Worth Insurance Lawyer Blog
Claims denial attorneys will on occasion find themselves in a position of needing to hire an expert to help with their case. The case referenced in the Blog is a hail damage case but the discussion is a discussion on what courts look at when determining whether an experts testimony will be allowed. The case is from Eastern District of Texas. The style of the case is, Hilltop Church of The Nazarene v. Church Mutual Insurance Co.
This case has other issues it discusses but here is what it says about experts.
Plaintiff claims that a March 2019 hailstorm caused damage to its property.
Plaintiff retained James Maxwell Judge as an expert witness. Judge toured plaintiff’s property nearly three years after the hail-storm, witnessed damage, and searched a storm database for storms occurring in the 2019 calendar year. He concluded that all damage to plaintiff’s property was “consistent with the [March 2019 storm] to the exclusion of other potential storm events.”
The Defendant moved to strike Judge’s opinion about what caused damaged to the roof.
Plaintiff’s expert concluded that all damage to plaintiff’s property was caused by one and only one hailstorm. Defendant seeks to exclude that causation opinion as unreliable under Federal Rule of Evidence 702 and Daubert because the opinion (1) is unsupported by underlying facts and data contained in an expert report and (2) is the product of an unrefined and unreliable methodology.
Rule 702, as interpreted in Daubert, governs the admissibility of expert testimony. Daubert provides a non-exhaustive list of factors for use in evaluating the validity of an expert’s methodology. Rule 702 permits expert testimony if four requirements are met. One of those requirements is that the testimony be the product of reliable principles and methods. The expert’s testimony must be reliable at . . . every step or else it is inadmissible. The reliability analysis applies to all aspects of an expert’s testimony: the methodology, the facts underlying the expert’s opinion, the link between the facts and the conclusion.
A court is not required to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert. Without more than credentials and a subjective opinion, an expert’s testimony that ʻit is so’ is not admissible. Under Daubert the court must make a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology can be applied to the facts at issue. This gatekeeping requirement applies to all types of expert testimony, not just scientific testimony. The Daubert inquiry is fact specific; it depends on the nature of the issue at hand, the witness’s expertise, and the subject of the testimony.
Defendant moves to strike the expert’s opinion about causation because it is unreliable and ipse dixit. Defendant argues that the opinion is unreliable because the expert’s methodology failed to exclude other possible damage–causing storms but nevertheless concluded that only the March 2019 caused any observed property damage. And because the expert’s methodology did not fully exclude other storms, it was his ipse dixit alone that provided the crucial link between his conclusion and underlying facts.
The court agrees. The methodology of plaintiff’s expert is unreliable under Rule 702. To begin with, the expert’s methodology is unreliable because it does not include a full search of the storm database. The expert toured plaintiff’s property in February 2022 and witnessed what is claimed as hail damage. Yet the expert’s storm database search examined only storms in 2019. It did not search 2020. It did not search 2021 or January 2022. Nor did it search before 2019.
That methodology leaves, at a minimum, a 25-month gap of unexamined weather events (in January 2020 – February 2022). A reliable method would have examined those remaining months to identify any other storm and opine on whether it could be excluded as causing the damage.
To survive a Daubert inquiry, an expert’s methodology must logically account for such a gap. Here, it does not. When asked about why he failed to search for storms outside of 2 019, the expert reported that he “felt like” his research “was sufficient to establish the storm event here” and that “the damage did not appear consistent with any cause other than the March 2019 storm event.” Yet the expert’s report provided nothing beyond conclusory statements
about how he arrived at that conclusion. He reported excluding other possible storms based on his observation of the size and age of the hail impacts. But he explained neither the size of hailstone impacts nor his method for ascertaining their age. He reported excluding other possible storms based on the level of water penetration. But he did not explain how he dated the water penetration so as to know it resulted from damage caused only by the March 2019 storm. He reported excluding other possible storms based on the reports of the church’s owners. But his report never discussed their purported comments. The result is that he has provided no way to close the logical gap—other than his ipse dixit.
For those reasons, the court grants the motion to strike plaintiff’s expert opinion because it lacks reliable methodological support for the conclusion that only one storm could have caused Hilltop’s property damage to the exclusion of other potential storm events.