United States District Court, D. Colorado
BROOKSHIRE DOWNS AT HEATHERRIDGE CONDOMINIUM ASSOCIATION, INC., a Colorado corporation, Plaintiff,
OWNERS INSURANCE COMPANY, a foreign corporation, Defendant.
ORDER DENYING DEFENDANT'S RULE 702 MOTIONS AND
RESETTING CASE FOR TRIAL
WILLIAM J. MARTINEZ UNITED STATES DISTRICT JUDGE
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
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.
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
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)
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).
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.
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,
Defendant's Challenges to Dixon's Opinions (ECF No.
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 ...