Client Alert: Fifth Circuit Guidance for Newly-Offered Expert Opinions and the Concurrent Causation Doctrine in Insurance Coverage Cases

Cianan Lesley and Brian Scarbrough | Jenner & Block

The United States Court of Appeals for the Fifth Circuit’s recent opinion in Majestic Oil, Inc. v. Certain Underwriters at Lloyd’s, London Subscribing to Policy Number W1B527170201, No. 21-20542 (5th Cir. Mar. 17, 2023), offers important guidance for practitioners in insurance coverage cases faced with offering new or supplemental expert opinions after the expert report deadline. Moreover, the opinion provides insight into how a recent articulation of Texas’ concurrent causation doctrine could affect insurance cases where the cause of damage is at issue.

The question underpinning Majestic Oil was whether Hurricane Harvey or an earlier January 2017 storm damaged Majestic Oil’s roof such that it started to leak. Majestic Oil’s first-party property insurance policy issued by Lloyd’s covered damage caused by “[r]ain or wind driven rain which enters the insured building or structure through an opening created by the force of a [n]amed [s]torm,” but according to the Firth Circuit, the policy did not cover “pre-existing damage, ongoing damage, or wear and tear.” Majestic Oil, slip op. at 1–2 (alteration in original). After Hurricane Harvey―a named storm―Majestic Oil’s roof began leaking, but the parties disputed whether the damage to the building predated the storm. Id. at 2–3. A Lloyd’s claims adjuster and a structural engineering expert hired by Lloyd’s determined that the damage predated Hurricane Harvey, and Lloyd’s denied the claim. Id. Meanwhile, Majestic Oil hired its own expert, who authored a report. Id. at 3. The report stated that while the earlier January 2017 storm could not “be ruled out as initially contributing to the roof vulnerability,” it was “more likely than not that” Hurricane Harvey caused the damage. Id.

At his deposition, Majestic Oil’s expert “refined his theory” and ruled out the January 2017 storm as the cause of the damage. Id. In other words, at his deposition, the expert concluded that only Hurricane Harvey caused the damage to Majestic Oil’s property. Id. In doing so, the expert referenced a previously unconsidered weather report that he discovered while researching an unrelated case. Id.

Shortly after the deposition, Majestic Oil’s expert authored a second expert report that reiterated his conclusion that Hurricane Harvey―not the January 2017 storm―caused the damage to Majestic Oil’s property. Id. at 4. However, the second report was offered six months after the deadline for expert reports, and Lloyd’s moved to strike the second report as “untimely because it contained a new opinion.” Id. In response, Majestic Oil argued that the report was supplemental. Id. The district court agreed with Lloyd’s and struck the second report. Id.

Lloyd’s then moved for summary judgment, which Majestic countered, in part, with an affidavit from its expert. Id. The affidavit restated the expert’s conclusion that Hurricane Harvey caused the damage instead of the January 2017 storm. Id. The district court struck the affidavit as a “sham affidavit” and, relying in part on Texas’s concurrent causation doctrine, granted summary judgment for Lloyd’s. Id. Specifically, under the district court’s reading of Texas’ concurrent causation doctrine, the district court “faulted” Majestic Oil’s expert for “failing to exclude the January 2017 storm as a potential cause of the damage” and found that Majestic Oil “otherwise failed to show that the damage was attributable to” Hurricane Harvey. Id. Majestic Oil appealed the decision.

While the appeal was pending, the Fifth Circuit commented on Texas’ concurrent causation doctrine in Advanced Indicator Manufacturing, Inc. v. Acadia Insurance, 50 F.4th 469 (5th Cir. 2022). Specifically, it held that under that doctrine, “when covered and non-covered perils combine to create a loss, the insured is entitled to recover that portion of the damage caused solely by the covered peril.” Advanced Indicator & Mfg., Inc. v. Acadia Ins. Co., 50 F.4th 469, 476–77 (5th Cir. 2022) (quoting Dallas Nat’l Ins. Co. v. Calitex Corp., 458 S.W.3d 210, 222 (Tex. App. Ct. 2015)). The Fifth Circuit placed the burden on the insured to segregate damage attributable solely to a covered peril and to offer evidence demonstrating either that a loss came solely from a covered cause or by which a jury may reasonably segregate covered loss from non-covered loss. Id. at 477.

On appeal, the Fifth Circuit evaluated whether the district court properly excluded the second report and affidavit of Majestic Oil’s expert. While the Fifth Circuit reasoned that the district court did not abuse its discretion in determining that the second report was new rather than supplemental, it also reasoned that the district court failed to properly apply the Federal Rules of Civil Procedure (FRCP). Majestic Oil, slip op. at 6. Specifically, the Fifth Circuit held that the district court did not evaluate three of the four factors[1] relevant under FRCP 37(c)(1)―the importance of the information, potential prejudice in allowing the information, and the availability of a continuance to cure prejudice―before determining that the second expert report should be excluded. Id. at 6–7. Similarly, the Fifth Circuit held that the district court improperly struck the affidavit because the affidavit was consistent with the expert’s deposition testimony. Id. at 8. However, the Fifth Circuit explained that “as a practical matter” the affidavit “rises and falls” with the expert’s second report “as the two repeat the same conclusions.” Id. Under these holdings, the Fifth Circuit vacated the district court’s summary judgment order and remanded. Id. at 9.

In remanding the case, the Fifth Circuit revisited its opinion in Advanced Indicator on concurrent causation. Specifically, it opined that whether Advanced Indicator “breathes new life into Majestic’s sole causation theory it advances on appeal is a question, like the admissibility of” the expert’s second report and affidavit “for the district court to consider anew, once the summary judgment record is properly settled.” Id.

The Fifth Circuit’s opinion in Majestic Oil serves as reminder to practitioners about the importance of expert opinions in insurance coverage cases, particularly in cases where an expert offers a new or revised opinion after the deadline for expert reports. Because the Fifth Circuit’s opinion demonstrates that courts should not allow one factor to displace others when evaluating whether to exclude new or revised expert opinions, litigants faced with new expert reports after the deadline would be wise to consider and address all four factors that courts must examine.

Moreover, as the Fifth Circuit previewed, it is possible that the concurrent causation doctrine, as articulated in Advanced Indicator, could affect the district court’s decision on remand. Id. The district court initially “faulted” Majestic Oil’s expert for “failing to exclude the January 2017 storm as a potential cause of the damage and found that Majestic otherwise failed to show that the damage was attributable” to Hurricane Harvey. Id. at 4. However, in Advanced Indicator, the Fifth Circuit explained that an insured could “carry its burden by putting forth evidence demonstrating that the loss came solely from a covered cause or by putting forth evidence by which a jury may reasonably segregate covered and non-covered losses.” Advanced Indicator, 50 F.4th at 477. Thus, the district court will likely have to consider whether a failure to exclude the January 2017 storm warrants a grant of summary judgment or whether Majestic Oil can satisfy its evidentiary burden to segregate loss.  

When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email

Proposed Changes to Federal Rule of Evidence on Expert Witness Testimony

Marisa T. Darden and Jay Thomas | Squire Patton Boggs

Expert testimony can play a crucial role in the trial process. Consequently, parties often file motions to disqualify the opposing side’s expert witnesses. The success of these motions in federal cases is controlled by the Federal Rules of Evidence (“FRE”), which stipulate that expert testimony must meet certain standards of reliability to be admissible. In May 2022, the Advisory Committee on Evidence Rules (“ACER”) approved proposed amendments to Rule 702 of the FRE.[1] The amendments would render “preponderance of evidence” the proper evidentiary standard for evaluating the reliability of expert testimony. Structurally, this change would expand the trial court’s role in overseeing the admissibility of expert testimony. The Supreme Court will review the ACER proposed amendments this fall, and if approved, the changes will take effect at the end of 2023.[2]

Rule 702 on Testimony by Expert Witnesses: Current and Proposed Versions

Rule 702 currently states that expert testimony must: (a) help the trier of fact understand the evidence or determine a fact at issue; (b) be based on sufficient facts or data; (c) be based on reliable principles and methods; and (d) be based on principles and methods reliably applied to facts of the case.

The new proposed rule states that 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 the proponent demonstrates to the court that it is more likely than not that: (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’s opinion reflects a reliable application of the principles and methods to the facts of the case.

Purpose of Proposed Changes

ACER proposed amendments to Rule 702 with two intertwined goals in mind.[3] First, clarifying the evidentiary standard: the proposed amendments to the rule emphasize that the admissibility of expert testimony must be established by a preponderance of evidence. To establish something by a preponderance of evidence essentially means showing that something is more likely than not. ACER noted that “emphasizing the preponderance standard in Rule 702 specifically was made necessary by the courts that have failed to correctly apply the reliability requirements of that rule.”[4]  Courts’ prevailing approach to expert testimony has been to err on the side of admissibility. Some courts have even interpreted Rule 702 as lending a presumption of admissibility. For instance, the Second Circuit has stated “the Court’s role as a gatekeeper is tempered by the liberal thrust of the Federal Rules of Evidence and the presumption of admissibility” and “[u]nder Daubert, expert testimony should be excluded only if it is speculative or conjectural or based on assumptions that are so unrealistic and contradictory as to suggest bad faith.”[5] The Fifth Circuit has taken a similar view towards the admissibility of expert testimony, stating: “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.”[6]  ACER’s proposed amendments to Rule 702 clarify that expert testimony should not be presumed admissible on its face. Rather, an attorney seeking to have their expert’s testimony admitted must prove, according to a preponderance of evidence standard, that the expert’s methodology and principles are reliable and that the expert reliably applied their methodology and principles to the case at issue.

ACER’s second goal for the amendments to Rule 702 was a direct response to the aforementioned tendency of courts to assign a weight to expert testimony rather than making a judgement on admissibility. ACER emphasized the trial court’s gatekeeping role in admitting expert testimony. ACER stated, “a trial judge must exercise gatekeeping authority with respect to the opinion ultimately expressed by a testifying expert.”[7]  This is largely a rebuttal to the practice of allowing expert testimony under a presumption of admissibility, then instructing jurors to assign weight to the expert testimony, in lieu of the trial court scrutinizing the admissibility of the testimony. ACER noted that many courts have held that the critical questions of the sufficiency of an expert’s basis, and the application of the expert’s methodology, are questions of weight and not admissibility. These rulings are an incorrect application of Rules 702 and 104(a). Therefore, ACER amended Rule 702 to compel courts to assess the reliability of the expert testimony, rather than delegating the issue to the jury as a question of weight.

Impact on Litigation

Assuming the Supreme Court approves the amendments, litigators can no longer presume their expert’s testimony will be admissible at trial. Rather, litigators must be prepared to defend the qualifications of their experts, alongside the methodologies they use. Litigators may also have more success using Daubert motions to challenge experts on the opposing side and disqualify them before trial. Under the amended rule litigators can expect a more fertile pretrial battleground over the admissibility of expert testimony. In response to this change, litigators must further scrutinize their prospective expert’s communication skills alongside their technical qualifications. In essence, experts must be able to distill their knowledge into a form that is easily digestible by trial judges to avoid running afoul of the amended Rule 702. Furthermore, the amended rule expands the importance of pretrial witness preparation. Litigators must instruct their experts on striking the delicate balance between talking over juror’s heads and providing a sound technical basis for their testimony. Finally, litigators must have a fulsome understanding of the concepts underlying their expert’s testimony so they can mount an appropriate defense of the testimony’s admissibility.

[1] Report of the Advisory Comm. on Evidence Rules (May 15, 2022).

[2] Id.

[3] Comm. on Rules of Prac. of Proc., Agenda Book 892–95 (June 7, 2022),

[4] Id.

[5] Feliciano v. CoreLogic Saferent, LLC, No. 17 CIV. 5507 (AKH), 2020 WL 6205689, at *2 (S.D.N.Y. June 11, 2020).

[6] United States v. Hodge, 933 F.3d 468, 478 (5th Cir. 2019), as revised (Aug. 9, 2019).

[7] Comm. On Rules of Prac. of Proc., Agenda Book 892–95 (June 7, 2022),

When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email

Contrasting Expert Opinions Result in Denial of Cross Motions for Summary Judgment

Tred R. Eyerly | Insurance Law Hawaii

    Given the opposing experts’ contradictory reports, the court denied both the insured and insurer’s motions for summary judgment regarding coverage for a pipe leak. Pronti v. Hanover Ins. Co., 2022 U.S. Dist. LEXIS 222306 (W.D. N. Y. Dec. 9, 2022).

    The insured had a swimming poll and spa, which functioned using a subsurface plumbing system, covered with concrete decking. A subsurface pipe began to leak, preventing the pool from properly functioning. The insureds gave notice under their homeowners’ policy and contended that significant portions of the pool, spa, concrete decking and other landscaping had to be torn out to do repairs. The insurer retained an expert, Sarah G. Byer, a structural engineer, to investigate. The parties agreed that the pipe had a leak, but disputed if the location of the leak was specifically identified.

    The parties also disputed the cause of the leak. Byer found that the most likely cause was deterioration incurred over the pipe’s lifetime based on the age of the plumbing system and Byer’s personal observation of the pipe. Byer further stated that the physical qualities of flexible PVC piping made it susceptible to damage from chlorine and water over time. 

    The insureds retained Patrick Williams as their expert. He concluded that wear and tear was not the cause of the pipe leak. Williams based his conclusion on the purported typical lifespan of flexible PVC piping, his observation of the lack of discolouration or brittleness typical of deteriorated piping, and the lack of leaking water from other sections of the pipe system. Williams did not ultimately identify a specific cause of the pipe leak. 

    The insurer denied coverage based upon exclusions for wear and tear and water damage. Suit was filed and cross motions for summary judgment were presented. 

    The court found that both expert reports were admissible. Considering both expert reports in the light most favorable to the respective nonmoving parties, the court found that there was a genius dispute of material fact regarding the cause of the alleged damage. The expert reports came to opposing conclusions on what caused the pipe to leak. Therefore, the reports created a genuine dispute of fact precluding summary judgment. 

    There was also a genie dispute as to whether the policy covered the tear-out costs the insureds incurred when preparing their plumbing system. The policy stated that all “ensuing loss to property . . . not excluded or excepted in this policy is covered.” The insures agreed that the resulting tear-out costs directly resulted from non-excluded losses, and therefore constituted an ensuing loss to “other structures” under the policy. The insurer argued that these damages were merely indirectly caused by the pipe leak, and all related to excluded loss under the policy. 

    There was a genuine dispute of material fact as to whether any exclusion applied, since there was conflicting evidence on what caused the pipe lea. Therefore, because the court could not determine whether any exclusions applied on summary judgment motions it could not determine whether the tear-out costs were covered under the ensuing loss provision.

When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email

Thinking About a Daubert Motion to Challenge an Expert Opinion?

David Adelstein | Florida Construction Legal Updates

When you receive an expert opinion, one of the first things you are considering is whether it is worth filing a Daubert motion / challenge.  A Daubert motion is a generally a pretrial motion you are using to challenge the admissibility of the expert opinion.  Keep in mind this deals with the admissibility, not the credibility, of the expert opinion. A Daubert motion is based on three prongs that must be answered: 1) is the witness qualified to render the expert opinion?; 2) is the expert’s opinion reliable?; and 3) is the expert’s opinion relevant?. 

A Daubert motion is premised after Federal Rule of Evidence 702 that 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.

The qualification prong is the foundational prong.  It is based on whether the witness has the “knowledge, skill, experience, training, or education” to render to expert opinion.  It’s a more liberal standard to determine whether the expert is qualified to testify competently as to his/her opinions.  “This inquiry is not stringent, and so long as the expert is minimally qualified, objections to the level of the expert’s expertise [go] to credibility and weight, not admissibility.” See Clena Investments, Inc. v. XL Specialty Ins. Co., 280 F.R.D. 653 (S.D.Fla. 2012) (internal quotations and citations omitted).

The reliability prong is generally the prong where focus is placed. Focus is whether the expert opinion is “based on scientific, technical, or other specialized knowledge and not on belief or speculation, and inferences must be derived using scientific or other valid methods.”   See Nease v. Ford Motor Co., 848 F.3d 219, 229 (4th Cir. 2017) (internal quotation and citation omitted). “Under the reliability requirement, the expert testimony must have a reliable basis in the knowledge and experience of the relevant discipline. To ensure reliability, the Court assess[es] the [expert’s] reasoning or methodology, using as appropriate such criteria as testability, publication in peer reviewed literature, and general acceptance.” See JH Kelly, LLC v. AECOM Technical Services, Inc., 2022 WL 1817415, *3 (N.D.Ca. 2022) (internal citations and quotations omitted). There are various guideposts the court uses to determine the reliability of the opinion and there is not necessarily a one-size-fits-all model applied universally to all experts.

The relevance prong is simply based on whether the expert’s opinion will assist the fact-finder to understand evidence and/or determine an issue in dispute. See JH Kelly, supra (internal citations and quotations omitted).

These prongs allow the trial court to serve as a gatekeeper to ensure the fact-finder (jury) hears admissible expert opinions. Just remember, a Daubert challenge is based on these three prongs: qualification, reliability, and relevance. Thus, when making a Daubert challenge, you want to focus on which of the prongs you are using to challenge the admissibility of the expert’s opinion.  It could be one prong.  It could be them all. Again, the focus is on the admissibility, not on the weight of the expert’s opinion because trial courts will view the weight of the expert’s opinion as a credibility issue that can be attacked through rigorous cross-examination.

JH Kelly is an example of a construction dispute out of the Northern District of California where a prime contractor and a subcontractor each filed Daubert motions.  There were multiple experts and numerous challenges. Most of the Daubert motions were denied as the trial court found they were really credibility arguments, not admissibility arguments. However, there were a couple of rulings worth pointing out here.

The subcontractor moved to strike expert opinions from one of the prime contractor’s experts that was opining that the subcontractor “is not entitled to recover its: (1) post-project completion damages; (2) change management support fees; and (3) costs for changed work due to untimely and insufficient notice based on the Subcontract provisions….”  The subcontractor claimed these opinions were a question of law and nothing more than attorney argument masked as an expert opinion.  The trial court agreed.

[T]he Court agrees with [subcontractor] that although these opinions are purportedly based on [expert’s] reading of the Subcontract, they are at bottom attorney argument dressed up as expert opinion.  [Expert’s] opinion that various provisions of the Subcontract preclude [subcontractor] from recovering its costs is just straightforward contract interpretation, and as such it permissibly treads on ultimate issues of law.

JH Kelly, supra, at *12.

The general contractor wanted to strike one of the subcontractor’s experts that was opining on lost productivity damages due to excessive changes to the project.  The expert used four different methods to calculate lost productivity (e.g., measured mile, IBBS Curves, MCAA factors, and Modified Total Cost). The general contractor claimed all such calculations were not reliable – they were subjective and unsubstantiated.  However, the court found that the flaws in the expert’s analysis go to the weight of the opinion, and not on admissibility, and can be vetted through incisive cross-examination. “The major theme here is that while the Court agrees that some of [contractor’s] criticisms of [expert’s] analysis have significant force, it will ultimately allow the jury to determine how much weight to assign his opinions.” JH Kelly, supra, at *6.

There are numerous considerations, including strategic, when filing a Daubert motion.

When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email

The Benefits Of Hiring A Consulting Expert

Paige McKirahan | WIT Legal

In a world where every industry seems to be in flux, legal disputes are becoming more and more complex. And while your legal team may be well-versed in all aspects of your specific sector, there are cases where employing a subject matter expert to aid in the creation of your litigation strategy can be crucial in obtaining a successful verdict.

While bringing in testifying experts to speak in deposition or at trial can be beneficial, it is also important to consider how a consulting expert may be able to positively contribute to your proceedings. Testifying experts provide opinions, specialized knowledge, and reports, all of which are discoverable. But consulting experts can help your team behind the scenes, and the earlier you engage with them, the stronger your stance will be.

Why should you work with a consulting expert?

In short, consulting experts are available to act in your best interest and to help you and your client form a tactical approach to the given dispute. Unlike testifying experts, consultants will not appear in court; the facts known and opinions held by these experts are not discoverable, and they do not need to be concerned about Daubert challenges or disqualifications. They are also usually available at a lower bill rate than testifiers.

Consulting experts work to analyze the opposing expert’s stance along with the strengths and weaknesses of the case to advise you on how to best disprove their presented arguments.

Some of their functions involve:

  • The education of attorneys and clients on the special issues of the case, allowing them to speak to or understand the true issues in the dispute. They can even guide attorneys in deciding whether or not to take on a case as consultants can help predict what complications may arise during litigation.
  • Helping their clients determine if a theory or opinion is sound prior to discovery through running tests or experiments in the field. This is a great resource in the early stages of litigation and can help form the basis for an argument that is used in a deposition.
  • Helping their clients decide which items to include in discovery and how to make them as effective as possible as well as advising counsel on what to pursue from the adverse party during discovery
  • Providing additional experts in the field from their network to help further inform their client’s litigation strategy.

In addition to helping find other experts, consulting experts can also become testifying experts – but that comes with its own set of complexities. Consulting experts must be vigilant about maintaining privilege and guarding communications if there is the potential for them to act as a testifying expert for the case in the future.

Consulting experts and their impact

What is it like being a consulting expert, and how can they impact litigation? Muriel Médard, Ph.D., a WIT IP Advisory Panel member and current NEC Professor of Software Science and Engineering at MIT, explains that “acting as a consulting expert allows an overall view, clear synthesis, and more effective approach than reactively managing litigation in a piecemeal, myopic fashion. For example, if multiple patents are being considered, different expert witnesses may be working on those individual patents, but common technical issues among those patents might be missed.”

She went on to say that “consulting experts can provide perspective and context to make sense of the ensemble of information that arises from expert witnesses from each side. In other cases, a consulting expert can provide non-discoverable advice regarding the strengths and risks in a case, say an IPR matter or an infringement one, to aid the legal team in its inquiries and be prepared for possible difficult issues that may arise.” Sometimes, a consulting expert might simply be able to guide the selection of experts in terms of needed background and specialization in complex technical multi-patent matters. Overall, a consulting expert’s ability to interpret and distill multifaceted technical information directly benefits the legal team’s work.

If you need a consulting expert to help inform your strategy and stay ahead of the curve with upcoming litigation, WIT has teams of world-class professionals comprised of:

  • Academics who act as a trusted authority in a certain subject matter or field. These experts can offer a deeper understanding of academic prose and an educated look at niche areas of each industry.
  • C-Suite executives who know the ins and outs of corporate operations and have experience working at the highest levels of management at firms and in government. These experts give your litigation team an understanding of best business practices and what the inner workings of the corporate business structure may look like.
  • Engineers who have the know-how to handle a wide range of tasks and can conduct research, due diligence, and analysis. These experts are highly technical, have excellent attention to detail, and can provide an in-depth look at the processes that create data and products across industries.
  • Regulators with the experience and insider knowledge to help counsel understand and communicate complex issues involving policies and regulations within industries. These experts are constantly examining each industry for potential issues and know the ins and outs of existing policies.

When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email