Maggie Tamburro – January 29, 2013<\/p>\n
Think successfully excluding your opposing party\u2019s expert on a\u00a0Daubert<\/em>\u00a0challenge equals a slam dunk on summary judgment and dismissal of the opposing party\u2019s case? Not so fast.<\/p>\n While many have concluded that prevailing on a\u00a0Daubert\u00a0<\/em>challenge is the equivalent of summary judgment, a recent case demonstrates, as with most things in law, there\u2019s always an exception \u2013 in this case it came in the form of a lay witness.<\/span><\/p>\n The decision seems particularly relevant considering its timing and specifics \u2013 the case concerned property damage and a denied insurance claim for losses alleged to have occurred in connection with 2011\u2019s\u00a0Hurricane Irene<\/a>. Decided just December 24, 2012, the opinion was coincidentally issued in the wake of the devastating events following hurricane Sandy and the flurry of litigation that is almost sure to follow. The court which issued the decision? None other than that of the U.S. District Court for the Southern District of New York.<\/p>\n The case serves up a tangible reminder that, so far as expert testimony is concerned, a litigator can win the battle (prevail in excluding an adversary\u2019s expert) but lose the war (still fail to prevail on a motion for summary judgment), leaving the opposing party\u2019s case alive and well.<\/p>\n Could this happen to your case? The short answer: It depends.<\/p>\n This unusual combination of seemingly incongruent rulings demonstrates that when it comes to expert testimony, there\u2019s no such thing as a\u00a0Daubert<\/em>\u00a0slam dunk, an automatic win, or a one-size-fits-all scenario.<\/p>\n Let\u2019s dig a little deeper into the facts in order to understand how and, more importantly,\u00a0why<\/em>\u00a0such a seemingly inconsistent scenario occurred. After all, knowing the\u00a0why<\/em>\u00a0makes for a much more powerful argument, whatever your position.<\/p>\n The Age-old Question: Wind or Water?<\/strong><\/p>\n The case involved a dispute over insurance policy coverage in connection with losses and property damage allegedly sustained by plaintiff \u2013 a New York corporation which owned condominium property it claimed was damaged during Hurricane Irene.<\/p>\n Following defendant\u2019s investigation which determined that plaintiff\u2019s damage was caused exclusively by rain, (which was allegedly not a cause of loss covered under the terms of plaintiff\u2019s policy, as opposed to wind, which was a covered cause of loss under the policy), defendant insurer denied plaintiff\u2019s claim.<\/p>\n Plaintiff then brought an action seeking indemnification for the claimed losses, seeking to show its damage was attributable to wind. In order to prove its case, plaintiff brought in a civil engineering expert and New York licensed professional engineer, with a highly credentialed background, who sought to testify that gusts of wind were the underlying cause of plaintiff\u2019s property damage. Defendant sought to exclude the testimony of plaintiff\u2019s expert under\u00a0Daubert<\/em>\u00a0and FRE 702, and moved for summary judgment and dismissal of the complaint.<\/p>\n In its ruling on the two motions, the court did something surprising. It granted defendant insurer\u2019s motion to bar the testimony of plaintiff\u2019s sole expert, after determining the testimony was not reliable. However, the court still denied defendant\u2019s motion for summary judgment, concluding, that, even without the expert\u2019s testimony, the plaintiff had presented enough evidence to survive.<\/p>\n Court Excludes Plaintiff\u2019s Expert Witness under\u00a0Daubert<\/em><\/em><\/strong><\/p>\n With regard to the exclusion of plaintiff\u2019s expert witness pursuant to\u00a0Daubert<\/em>\u00a0and\u00a0FRE 702<\/a>, the court agreed with the defendant insurer that the expert\u2019s testimony amounted to an \u201cipse dixit<\/em>\u00a0statement.\u201d The court determined that the proffered testimony failed to explain how the expert reached his conclusion that the claimed damage to plaintiff\u2019s property was attributable to gusts of wind.<\/p>\n In doing so, the court determined that the plaintiff\u2019s expert witness\u2019 testimony fell short of satisfying the reliability requirement of FRE 702 and lacked sufficient methodology and relevant data. Factors the court considered dispositive were that (1) the expert allegedly did not attempt to approximate the wind speeds necessary to cause the damage (which the court concluded rendered his testimony speculative), (2) the report was insufficient in methodology for differentiating wind damage from rain damage, and (3) the expert \u201cdid not examine the roof in person until \u2026 eight months after the damage allegedly occurred and after repairs had been completed\u2026\u201d. Thus, the court barred the expert\u2019s testimony.<\/p>\n It\u2019s noteworthy that the court, in its discussion of the federal rules discussing expert testimony, made specific reference to\u00a0FRE 403<\/a>, which provides that relevant evidence may be excluded where the \u201cprobative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing \u00a0the issues, misleading of the jury\u201d and more. \u00a0Here the court seemed to make a subtle point that it left hanging \u2013 it didn\u2019t expressly apply this rule to the case at hand. However, the court\u2019s inclusion of the rule in its discussion perhaps serves as both reminder and warning \u2013 expert testimony has the inherent potential to be both powerful and misleading. Therefore, in weighing possible prejudice against probative value under FRE 403, a judge has authority to exercise more control over expert witnesses than over lay witnesses.<\/p>\n Testimony of Lay Witnesses Saves the Day<\/strong><\/p>\n In the absence of its expert witness\u2019 testimony, what rescued the plaintiff\u2019s case was perhaps not what you might expect. It amounted to the testimony of two lay witnesses \u2013 both of whom allegedly had personal knowledge of events either during or immediately following the storm \u2013 and certain invoices the judge ruled as admissible evidence under the business records exception to the hearsay rule.<\/p>\n The lay witnesses included a contractor, who allegedly witnessed the property damage the morning after the storm, and the managing partner of the plaintiff\u2019s property, who testified he observed damage to the property during the storm.<\/p>\n Turning its attention to the contractor, the court took full opportunity to discuss\u00a0FRE 701<\/a>, the rule governing opinion testimony of lay witnesses. Rule 701 generally states that, if a witness is not testifying as an expert, the testimony is limited to testimony that is (1) rationally based on perception, is (2) helpful, and (3) is \u201cnot based on scientific, technical, or other specialized knowledge within the scope of Rule 702.\u201d<\/p>\n Here, the defendant used FRE 702 as a sword rather than a shield, in an attempt to exclude the contractor\u2019s testimony as a lay witness. The defendant claimed that, since the contractor would testify to an opinion that was based on \u201cscientific, technical, or other specialized knowledge,\u201d he was required to be properly qualified as an expert under FRE 702.<\/p>\n The court disagreed with the defendant insurer, and held that the contractor did\u00a0not<\/em>\u00a0have to be qualified as an expert under FRE 702 to testify as to matters that were within his sphere of\u00a0personal\u00a0knowledge and perception of the events. The court found the contractor\u2019s testimony admissible under FRE 701 to the extent it relied on his first-hand knowledge, stating, \u201c[I]t doesn\u2019t take an expert to see that roof flashing has peeled back, allowing water to penetrate a roof. \u00a0Testimony to that effect is neither irrelevant nor prejudicial. \u00a0Nor does [plaintiff\u2019s witness] experience as a contractor convert him from a lay witness to an expert witness.\u201d<\/p>\n Reading Between the Lines \u2013 Words of Wisdom from the Case<\/strong><\/p>\n The court\u2019s ruling stands for a few propositions which are worth noting, some of which may tend to get lost in an effort to extrapolate bright line rules with regard to expert witness testimony.<\/p>\n 1. Having an expert (even if the only expert in a case), excluded on a\u00a0Daubert<\/em>\u00a0challenge doesn\u2019t automatically yield a win on motion for summary judgment. The court may look to other evidence, even that of \u00a0lay witnesses, in determining whether there is a genuine issue as to a material fact, and whether any such evidence exists that could allow a reasonable jury opportunity to render a decision in the non-movant\u2019s favor.<\/p>\n 2. A witness may not necessarily have to be qualified as an expert in order to testify about technical or specialized matters if he or she can otherwise testify under\u00a0FRE 602<\/a>\u00a0and FRE 701 as a lay witness. In the right kind of case, the court\u2019s discussion can be a useful one in (1) defending against arguments which attempt to preclude a witness based on the fact that he or she has not been properly qualified as an expert under FRE 702, and (2) arguing that a lay witness should be allowed to testify on a matter, even if technical, of which he or she has personal and first-hand knowledge regardless of whether he or she has been qualified as an expert.<\/p>\n 3. In the post-Daubert\u00a0<\/em>world of trial judge as gatekeeper, the particular facts, circumstances, and degree to which expert testimony may be required to explain technical or specialized opinions are different for every case. The court honed in on the fact that, when addressing the admissibility of expert testimony under the federal rules, any inquiry must be a flexible one, (as is specifically dictated by the law). In addition, in weighing prejudicial verses probative value under FRE 403, courts will have more control over expert witnesses than lay witnesses, due to the difficulty in evaluating expert testimony and the court\u2019s duty to protect the jury from testimony that may be misleading or confusing.<\/p>\n Expert witnesses are still critical in a large number of cases, and often the extent to which an expert is needed will vary depending on the subject matter and nature of the case, the degree of technical or specialized experience that is required, the underlying claims, and a host of other facts and circumstances. What this case can tell us is that one should refrain from taking for granted the proposition that excluding an expert in certain cases means an automatic win at the summary judgment level, as hard and fast rules with regard to experts are often few and far between.<\/p>\n Although the court ruled that plaintiff had sufficient evidence, even without its expert, to survive summary judgment, is it enough for plaintiff to ultimately prevail at trial? \u00a0Or, in a case such as this, is the court merely prolonging the inevitable? \u00a0Tell us what you think in the comments section below.<\/p>\n