Expert witness designations were at the heart of a recent decision in the Eastern District of Texas where a plaintiff filed suit against Defendant Insurance Company for alleged violations of the Texas Insurance Code, Texas Deceptive Trade Practices Act, breach of contract, and breach of the duty of good faith and fair dealing.
U.S. District Judge Amos L. Mazzant wrote in his opinion that if an expert is properly disclosed, the expert is admissible if it meets the standard set out in the Federal Rules of Evidence. Rule 702 provides for the admission of expert testimony that assists the trier of fact to understand the evidence or to determine a fact in issue. A district court must make a preliminary determination, when requested, as to whether the requirements of Rule 702 are satisfied with regard to a particular expert’s proposed testimony.
Because Plaintiff admitted that the initial disclosures were insufficient, the Court had to determine the appropriate remedy. In determining the remedy, Judge Mazzant explained that courts must balance four factors:
- the explanation for failure to properly identify the witness;
- the importance of the testimony;
- potential prejudice in allowing testimony; and
- the availability of a continuance to cure such prejudice.
Judge Mazzant found the instant case much like Betzel v. State Farm Lloyds (5th Cir. 2007), in which the Fifth Circuit held that striking an expert in a similar set of circumstances was unwarranted. Defendant tried to distinguish that case by claiming it provided Plaintiff with repeated reminders that its designations weren’t in compliance with the Federal Rules. However, with the facts of this case, this distinction didn’t provide a reason to depart from the Fifth Circuit’s holding. Striking Plaintiff’s expert all together was too harsh a remedy in this case, the judge said. Therefore, Plaintiff’s Motion for Leave should be granted.
Defendant argued that granting Plaintiff’s Motion for Leave didn’t cure all the deficiencies Defendant identified with Plaintiff’s designations. However, the judge held that the factors favored allowing Plaintiff’s experts to testify at trial. Accordingly, the Court granted Plaintiff 14 days to amend its expert designations.
Defendant also argued that Plaintiff’s expert provided insufficient reports to be allowed to testify as to causation in the case. The Insurance Company claimed that the expert’s report was based on the assumption that hail damage was concealed by gravel ballast, but argued that the expert didn’t explain how gravel could conceal hail damage. Further, Defendant faulted the expert for not even attempting to move the gravel to discover the damage beneath it. Defendant maintained that this conclusion was conclusory and should not be considered at trial.
Defendant next took issue with the fact that the expert didn’t explain why the entire roof had to be replaced based on minimal hail damage. Upon reviewing the expert’s report, the judge found that the expert’s interview with the owner of the building and his visit to the property, coupled with his review of the applicable engineering guidelines and industry standards provided a sufficiently reliable basis to admit the expert’s testimony as to causation pursuant to Rule 702.
Defendant also asserted that because the expert failed to rule out alternative causes, his report was deficient. Judge Mazzant found Defendant’s argument similar to that found in Chisesi Brothers Meat Packing Company, Incorporated v. Westchester Surplus Lines Insurance Company(E.D. La. 2010). In Chisesi Brothers, the district court found that an expert’s opinion that a hurricane was the cause of damage done to a roof was admissible, even though the expert assumedthe hurricane was the cause of the damage. The district court reasoned that, “[elimination of alternative possibilities is one method of arriving at a result reliably, but it is not the only method.”
Here, the expert’s failure to rule out alternative causes didn’t render his opinion as to causation inadmissible under the circumstances, Judge Mazzant said. “As a general rule, questions relating to the bases and sources of an expert’s opinion affect the weight to be assigned that opinion rather than its admissibility and should be left for the jury’s consideration,” the judge wrote, quoting a 1996 Fifth Circuit case. Defendant’s argument went to the weight to be given the expert’s testimony, the judge said, which should be left to the trier of fact. As such, the Court found that the expert’s testimony shouldn’t be stricken.
Based on the four factors reviewed in the opinion, the judge held that the appropriate remedy was to allow the plaintiff to amend its expert designations.
La Verdure & Assocs. v. Depositors Ins. Co.,2017 U.S. Dist. LEXIS 173415 (E.D. Tex. 2017)