Brookshire Downs at Heatherridge Condominium Association, Inc. v. Owners Insurance Co.

          ORDER DENYING DEFENDANT'S RULE 702 MOTIONS AND RESETTING CASE FOR TRIAL

          WILLIAM J. MARTINEZ UNITED STATES DISTRICT JUDGE

         Plaintiff Brookshire Downs at Heatherridge Condominium Association, Inc. (“Plaintiff”) sues Defendant Owners Insurance Company (“Defendant”) for breach of insurance contract and unreasonable delay or denial of insurance benefits under Colorado Revised Statutes §§ 10-3-1115 and -1116. (See ECF No. 1.) Before the Court are two motions challenging expert evidence: Defendant's Motion to Limit the Testimony of Craig Dixon Per F.R.E. 702 (ECF No. 56), and Defendant's Motion to Preclude the Testimony of Steve Patrick Per F.R.E. 702, or in the Alternative, Limit the Testimony of Steve Patrick (ECF No. 62). For the reasons explained below, both motions will be denied.

         I. BACKGROUND

         The Brookshire Downs at Heatherridge condominiums were hit by a significant hailstorm on September 29, 2014. Plaintiff eventually made a claim on Defendant for roof repairs. Most of the claims handling took place from the latter half of 2015 through the early months of 2017. Defendant paid to replace the roofs, or certain slopes, on some of the condominium buildings, but not all slopes or all roofs. At issue in this lawsuit is whether Defendant has lawfully denied coverage for replacing the as-yet-unreplaced slopes on condominium buildings “2120” and “2130.” There is also a question of whether one of Defendant's adjusters held back a depreciation payment (which was eventually paid) with no reasonable basis.

         II. LEGAL STANDARD

         A district court must act as a “gatekeeper” in admitting or excluding expert testimony. Bitler v. A.O. Smith Corp., 400 F.3d 1227, 1232 (10th Cir. 2004). Admission of expert testimony is governed by Rule 702, which 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.

Fed. R. Evid. 702. The proponent of the expert testimony bears the burden of proving the foundational requirements of Rule 702 by a preponderance of the evidence. United States v. Nacchio, 555 F.3d 1234, 1241 (10th Cir. 2009) (en banc).

         An expert's proposed testimony also must be shown to be relevant and otherwise admissible. See Adamscheck v. Am. Family Mut. Ins. Co., 818 F.3d 576, 588 n.7 (10th Cir. 2016). To be relevant, expert testimony must “logically advanc[e] a material aspect of the case” and be “sufficiently tied to the facts of the case that it will aid the jury in resolving a factual dispute.” United States v. Garcia, 635 F.3d 472, 476 (10th Cir. 2011) (alterations in original).

         While an expert witness's testimony must assist the jury to be deemed admissible, Fed.R.Evid. 702(a), it may not usurp the jury's fact-finding function. See Specht v. Jensen, 853 F.2d 805, 808 (10th Cir. 1988). The line between what is helpful to the jury and what intrudes on the jury's role as the finder of fact is not always clear, but “[a]n opinion is not objectionable just because it embraces an ultimate issue.” Fed.R.Evid. 704.

         The trial court's focus under Rule 702 is on the methodology employed by an expert, not on his or her conclusions. Bitler, 400 F.3d at 1233. Ultimately, “the rejection of expert testimony is the exception rather than the rule.” Fed.R.Evid. 702 advisory committee's note. “[T]he trial court's role as gatekeeper is not intended to serve as a replacement for the adversary system. . . . Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.” Id. (quoting Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 595 (1993)).

         III. ANALYSIS

         A. Defendant's Challenges to Dixon's Opinions (ECF No. 56)

         1. Dixon's Opinions

         Plaintiff hired a firm named SBSA, Inc., to evaluate whether hail damage on buildings 2120 and 2130 can be attributed to the September 29, 2014 hailstorm, and to provide a recommendation for repairing that damage. (ECF No. 56-1 at 4.) SBSA assigned an engineer, Craig Dixon, to the matter. (Id. at 4, 25.) Dixon visually inspected the roof slopes in question and came to two conclusions: (1) the hail damage on buildings 2120 and 2130 was likely caused by the September 29, 2014 storm, and (2) complete replacement of the affected slopes was recommended. (Id. at 23.) Dixon elaborated on that second conclusion as follows:

The frequency of [hail strikes observed in] four test squares laid out and analyzed is such that spot-type repairs to correct the hail-caused damage[] on the shingle roof coverings in question is not feasible. Moreover, Mr. Benglen [Plaintiff's adjuster] indicated that the existing asphalt shingles are no longer manufactured or available, which, if accurate, would render the ...