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358 Liberation LLC v. Country Mutual Insurance Co.

United States District Court, D. Colorado

May 30, 2017

358 LIBERATION LLC, Plaintiff,


          RAYMOND P. MOORE United States District Judge.

         Pending 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 following findings.

         I. Legal Standard

         Rule 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 as follows.

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.

Fed.R.Evid. 702.

         The 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).

         The 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).

         II. Discussion

         A. Thomas

         Defendant 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.

         As to 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.

         As for 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.

         This 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. ...

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