United States District Court, D. Colorado
OPINION AND ORDER
RAYMOND P. MOORE United States District Judge.
before the Court are defendant Country Mutual Insurance
Company's (“defendant”) motions to exclude
the testimony and expert reports of Steven Thomas
(“Thomas”) (ECF No. 44) and Peter Knowe
(“Knowe”) (ECF No. 45). Plaintiff 358 Liberation
LLC (“plaintiff”) has responded in opposition to
both motions (ECF Nos. 49, 50), and defendant has filed
replies in support (ECF Nos. 53, 54). The Court makes the
702 of the Federal Rules of Evidence (“Rule 702”)
governs the admission of expert evidence in federal court.
Fed.R.Evid. 702; Kumho Tire Co., Ltd. v. Carmichael,
526 U.S. 137, 147, 119 S.Ct. 1167 (1999). Rule 702 provides
A witness who is qualified as an expert by knowledge, skill,
experience, training or education may testify in the form of
an opinion or otherwise if: (a) the expert's scientific,
technical, or other specialized knowledge will help the trier
of fact to understand the evidence or to determine a fact in
issue; (b) the testimony is based on sufficient facts or
data; (c) the testimony is the product of reliable principles
and methods; and (d) the expert has reliably applied the
principles and methods to the facts of the case.
Court's role in considering proposed expert evidence is
one of a “gatekeeper.” Kumho Tire, 526
U.S. at 147. Factors that might be relevant in carrying out
this role include: (1) whether a theory or technique can be
or has been tested; (2) whether a theory or technique has
been subjected to peer review and publication; (3) whether
there is a high known or potential rate of error to a
technique and whether there are standards controlling the
technique's operation; and (4) whether the theory or
technique enjoys general acceptance within a relevant
community. Id. at 149-150. These 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.”
Id. at 150 (quotation omitted).
proponent of expert evidence bears the burden of establishing
its admissibility. Ralston v. Smith & Nephew
Richards, Inc., 275 F.3d 965, 970 n.4 (10th Cir. 2001).
objects to the admission of testimony and an expert report
from Thomas for three principal reasons: (1) Thomas is not
qualified; (2) Thomas' opinions are not the result of
reliable principles and methods; and (3) Thomas' opinions
will not help the trier of fact. (ECF No. 44 at 8-10.) The
Court disagrees with the first and third arguments, but
agrees with the second, and thus, finds that Thomas'
testimony and expert report are inadmissible.
Thomas' qualifications, defendant asserts that Thomas is
not a certified roofing contractor, is not an engineer, and
his experience lacks the requisite knowledge to opine on
damage causation and damage remediation. (Id. at 8.)
With respect to Thomas not being a certified roofing
contractor or an engineer, this appears to be undisputed
(see ECF No. 50 at 6), but the Court does not
understand why it renders Thomas unqualified. Thomas'
expert report specifically states that his company is not an
engineering or roofing contractor firm, but the company is a
licensed “roof testing firm specializing in forensic
roof evaluations.” (See ECF No. 44-3 at 6.)
Moreover, Thomas' resume states, inter alia,
that his present and past employment has involved roof
evaluations, he is certified in how to perform roof
inspections, and he teaches a class on how to determine
hail/wind damage from normal wear and tear. (ECF No. 44-4 at
1-2.) Defendant's brief discussion of Thomas' resume
offers no adequate objection to these qualifications.
(See ECF No. 44 at 8.) As a result, for purposes of
this case, the Court finds Thomas qualified to assess and
quantify potential hailstorm damage to plaintiff's roof.
Thomas' ability to assist the trier of fact, although
plaintiff's defense of Thomas on this ground is, at best,
bare-boned, the Court nonetheless finds that the opinions
expressed in Thomas' expert report could be helpful to a
jury. The important thing to note in this regard is the
parties' apparent agreement as to what may be one of the
main disputed issues between them: when an alleged
hailstorm damaged plaintiff's roof. (See ECF No.
44 at 10; ECF No. 50 at 8.) Plaintiff believes that the
hailstorm that damaged its roof (and for which it seeks
compensation) occurred during the time of its insurance
policy with defendant. (ECF No. 50 at 3-4.) Defendant
believes that (most of) the damage to plaintiff's roof
occurred prior to the effective date of the parties'
insurance policy. (ECF No. 44 at 2-3.) Thomas' opinion is
that “hailstorm related damages were sustained to the
evaluated building.” (See ECF No. 44-3 at 6.)
As defendant asserts, an earlier analysis of plaintiff's
roof (for damage that allegedly occurred in June 2012) found
that, although the roof had been “impacted” by
hail, it had not been damaged by hail. (See ECF No.
44 at 2-3; see also ECF No. 50-4 at 3-6.) Thus,
Thomas' opinions may be helpful because, if the roof was
not damaged by hail in the earlier analysis, but it was by
the time of Thomas' analysis, then a trier of fact could
infer that the hail damage occurred at some point in time
after the first analysis such as during the time that the
parties' insurance policy was effective.
leaves the reliability of Thomas' opinions. Although
plaintiff dedicates a portion of its response to the
reliability of Thomas' opinions, nowhere does plaintiff
actually explain the same; instead, all plaintiff does is
regurgitate statements and findings from Thomas' expert
report. (See ECF No. 50 at 7-9.) Important here is
the purpose for which Thomas' opinions are offered: to
quantify any potential hailstorm damage to plaintiff's
roof. (See ECF No. ...