Hurricane expert witnessThe extent to which a contractor is permitted to testify concerning wind damage to a building from a hurricane was at the eye of this legal storm. An individual with first-hand knowledge and a specialized knowledge and experience will be allowed to give expert testimony, but with some limitations.

A condominium association brought an action seeking indemnification for losses stemming from Hurricane Irene against defendant, an insurance company. The insurance company moved for summary judgment seeking to dismiss the plaintiff’s complaint in its entirety. The defendant also asked that Condo’s expert to be barred pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc. and by Rule 702 of the Federal Rules of Evidence. The motion to bar expert testimony was granted and the motion for summary judgment was denied.

The insurance company issued an insurance policy (the “Policy”) to the Condo in 2010 that covered certain losses to its property, a five-story condominium bordered by buildings in excess of twenty stories. Condo alleged that the property was damaged by winds from Hurricane Irene in August of 2011. Shortly after the hurricane, Condo retained a contractor to repair the roof. Those repair cost were approximately $140,000. The founder and principal of the contracting company oversaw the repairs and allegedly witnessed damage to the roof the morning after the hurricane. At the same time, General Mechanical performed $42,000 worth of repairs to interior areas of the building damaged by leakage. Condo also incurred approximately $20,000 of expenses due to window repairs and treatments. Condo filed an insurance claim under the Policy asserting that it was entitled to recover costs totaling $208,411.51 for damage caused by Hurricane Irene.

The insurance company sought to bar the condo’s expert from testifying that gusts of wind caused damage to the roof.

The condo’s expert received a Bachelor’s Degree in Civil Engineering and a Master’s Degree in Civil Engineering in 1997, both from Cooper Union. He had worked as an engineer for four different firms since earning his degrees. From 2001–2004, the plaintiff’s expert was responsible for field supervision of structural repairs as well as waterproofing and roofing repairs at a consulting engineering firm that provided structural and civil engineering services to architectural firms, builders, contractors, private clients, and government agencies nationally and internationally. In 2001, he founded his own firm, which offers roof inspection and replacement services. The condo’s expert was a licensed professional engineer in New York and a member of the American Institute of Steel Construction, the National Society of Professional Engineers, and the American Welding Society. He was certified as an expert witness in the New York Supreme Court, as well as several courts in Kings County and Queens County.

District Judge Shira A. Scheindlin wrote in her opinion that under Rule 702 and Daubert, the district court must determine whether the proposed expert testimony “both rests on a reliable foundation and is relevant to the task at hand.” Although t he district court is to act as ” ‘a gatekeeper to exclude invalid and unreliable expert testimony, “the Federal Rules of Evidence favor the admissibility of expert testimony, and [the court’s] role as gatekeeper is not intended to serve as a replacement for the adversary system,” she wrote (citing Vuitton IV in the Southern District of New York, 2006). As such, Judge Scheindlin explained, “the court must focus on the principles and methodologies underlying the expert’s conclusions, rather than on the conclusions themselves.” She said that to this end, courts may consider under Daubert: (1) “whether [the method or theory] can be (and has been) tested,” (2) “whether [it] has been subjected to peer review and publication,” (3) “the known or potential rate of error [associated with the technique] and the existence and maintenance of standards controlling the technique’s operation,” and (4) whether the method has achieved “general acceptance” within the relevant community. Further, Judge Scheindlin cautioned that expert testimony may not usurp the role of the court in determining the applicable law. An expert is allowed to give an opinion as to an issue of fact, but may not give testimony stating ultimate legal conclusions based on those facts. Expert testimony is also inadmissible when it addresses “lay matters which [the trier of fact] is capable of understanding and deciding without the expert’s help.” (Citing Andrews v. Metro N. Commuter R.R. Co., 882 F.2d 705, 708 (2d Cir.1989)).

Judge Scheindlin went on to say that the court’s objective when exercising this gatekeeping function is to be sure that an expert—whether basing testimony upon professional studies or personal experience—uses the same level of intellectual rigor in the courtroom that characterizes the practice of an expert in the relevant field. The judge, however, recognized that there were many different kinds of experts, and many different kinds of expertise. The United States Supreme Court has emphasized that the reliability inquiry “is a flexible one.” General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997).

Accordingly, the Daubert factors may or may not be pertinent in assessing the reliability of the expert, depending on the nature of the issue, his or her particular expertise, and the subject of the testimony. The trial court has “the same kind of latitude in deciding how to test an expert’s reliability … as it enjoys when it decides whether or not that expert’s relevant testimony is reliable.” Moreover, “nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert.” In particular, “expert testimony should be excluded if it is speculative or conjectural.” (citing Boucher v. U.S. Suzuki Motor Corp., 73 F.3d 18, 21 (2d Cir.1996)).

The insurance company challenged the reliability of the condo’s expert’s testimony rather than his qualification as an expert, arguing that the expert’s testimony constituted an impermissible “net opinion,” or ipse dixit statement, because it failed to adequately explain how he reached his conclusion that gusts of wind damaged the roof. The judge agreed.

The expert said that “within a reasonable degree of engineering certainty that the roof and flashing were first damaged by wind and that the water penetration and damage were subsequent to the wind damage.” The expert based this opinion on a weather report taken at JFK airport, 13 miles away from the condominium. This report said that the airport recorded wind gusts of up to 59 miles per hour on the date of the storm. He believed that the tall buildings neighboring the condominium raised the wind speed in the area and increased “the load on items such as windows and flashing” due to a phenomenon known as the Bernoulli Effect. His testimony would be that these elevated wind speeds resulted in damage to the roof flashing, allowing rainwater to enter the building.

Judge Scheindlin held that the expert’s testimony failed to satisfy the reliability requirement of Federal Rule of Evidence 702. First, she said, the expert’s report did not mention the type of material used in the flashing or attempt to approximate the wind speeds necessary to cause the flashing to peel back. As a result, his testimony was speculative. Next, his report contained no methodology for differentiating wind damage caused by Hurricane Irene from prior damage or rain damage alone. Finally, the judge said that the expert did not examine the roof in person until eight months after the damage allegedly occurred and after repairs had been completed. This called into doubt the reliability of the expert’s testimony with no clear methodology or relevant data; there was “simply too great an analytical gap between the data and the opinion proffered.” Thus because of the speculative nature of this expert’s testimony, it was excluded.

The insurance company subsequently argued that the founder and principal of the contracting company should not be permitted to testify, as he was not a qualified expert. Judge Scheindlin explained that under Federal Rule of Evidence 701, “if an opinion rests ‘in anyway’ upon scientific, technical, or other specialized knowledge, its admissibility must be determined by reference to Rule 702, not Rule 701.” The condo’s contracting company had first-hand knowledge of the condition of the condominium roof after the storm; the court said that it didn’t take an expert to see that the roof flashing has peeled back, allowing water to penetrate a roof. Testimony to that effect would be neither irrelevant nor prejudicial, and his experience as a contractor does not convert him from a lay witness to an expert witness. (Citing U.S. v. Fama, No. 12–CR–186, 2012 WL 6102700 (E.D.N.Y. Dec. 10, 2012) (” ‘When a lay witness has particularized knowledge by virtue of her experience, she may testify—even if the subject matter is specialized or technical—because the testimony is based upon a layperson’s personal knowledge rather than on specialized knowledge within the scope of Rule 702.’ “) (quoting Donlin v. Philips Lighting N. Am. Corp., 581 F.3d 73, 81 (3d Cir.2009)).

However, because the contracting company’s owner lacked personal knowledge as to wind speeds during the storm, he was not permitted to testify as to the wind speeds during the storm or whether, in his opinion, wind speeds reached the levels required to cause the damage he observed to the roof’s flashing. This testimony was unrelated to his perception, and, was therefore inadmissible.

By: Kurt Mattson, J.D. LLM

Source: 2012 WL 6700225 (S.D.N.Y. Dec. 26, 2012)