In a recent case before the U.S. District Court in Ft. Lauderdale, the Court had to decide whether a policyholder’s expert should be allowed to testify on certain issues in the trial of the case involving Hurricane Wilma damages. Clena Investments, Inc. v. XL Specialty Ins. Co., 2012 WL 266422 (S.D. Fla. January 30, 2012). Often in litigation, parties challenge the validity of the opposing side’s expert testimony, and the courts must resolve these disputes. In essence, courts acts as a gatekeepers in deciding whether to admit expert testimony.
The policyholder in Clena Investments retained a professional engineer to offer opinions on the cause of damage to the property and the costs of repair. The policyholder’s expert earned a Master–of–Science degree in civil engineering from the University of Miami and worked as an engineer and project manager on various design and construction projects since 1997. Part of the expert’s conclusion was:
[T]he existing damages of the roof and, in turn, the interior leaks, are likely due to high winds activity in recent years. Hurricane Wilma likely caused the existing roof damages and interior leaks at the Property. The effect of such winds on the parapet wall, flashing and edge roof membrane and also on the air plenums and air condensing units created the proper conditions for water and air intrusion under the roof membrane. Continuous water and air infiltration has been undermining the membrane, metal deck and overall roof structure.
His report contained a comparison between Hurricane Wilma and previous storm activity in South Florida. In his deposition testimony, the policyholder’s engineer explained his conclusion that Hurricane Wilma, not Hurricane Frances, inflicted the damage also stemmed from his reasoning that if the cracking and holes in the roof membrane had existed when Hurricane Frances occurred, the roof membrane would have been peeled off by Hurricane Wilma.
The insurer focused its attacks on the expert’s qualifications. The insurer also argued that the methodology the expert used was neither reliable nor helpful and urged the Court to preclude him from rendering that opinion. The insurer also challenged the expert’s opinion regarding the cost of repairing the damaged property.
To resolve the challenge to the expert’s opinion testimony, the Court explained it conducts a “rigorous” three-part inquiry into whether: (1) the expert is qualified to testify competently regarding the matters he intends to address; (2) the methodology by which the expert reaches his conclusions is sufficiently reliable; and (3) the testimony assists the trier of fact, through the application of scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in issue.
When conducting this analysis, federal courts have a fine line to walk to ensure they are not making ultimate conclusions that are reserved for the trier of fact. In reaching its decision, the Court analyzed the factors above. The Court denied the insurer’s motion to the extent that it sought to strike the expert’s opinion that Hurricane Wilma most likely inflicted the damage to the property, finding the expert’s experience and training made him competent to testify to that conclusion.
It can be devastating when an expert is not allowed to testify or when expert testimony is limited. In many cases, a substantive amount of time and money is spent long before the expert will be challenged in court. Avoiding subjective or speculative leaps in the methodology or basis for conclusions will help to withstand the inevitable attack.
