# MCFS & BB, Inc. v. Hartford Insurance Company of the Southeast

> District Court, M.D. Florida · July 19, 2022

URL: https://www.frixlaw.com/law-library/cases/10110532

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** July 19, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## How later opinions describe it (automated extraction)

- noting that, “[a]lthough a district court would not be bound to follow any other district court’s determination, the decision would have significant persuasive effects”

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

MCFS & BB, INC., et al.,

Plaintiffs,

vs. Case No. 3:21-cv-254-MMH-MCR

HARTFORD INSURANCE
COMPANY OF THE SOUTHEAST,

Defendant.
/

O R D E R

THIS CAUSE is before the Court on two Daubert1 motions, one filed by
Defendant Hartford Insurance Company of the Southeast (Defendant) and one
filed by Plaintiffs MCFS & BB, Inc.; Peter E. Petersen, individually and as
trustee of the Peter E. Petersen Revocable Living Trust; and Mary Carter
Petersen, individually and as trustee of the Mary F. Carter Revocable Living
Trust (Plaintiffs). See Defendant, Hartford Insurance Company of the
Southeast’s Motion to Strike Expert Testimony of Plaintiff’s [sic] Expert
Witness Timothy P. Marshall Under Daubert Standard and Memorandum of
Law in Support Thereof (Doc. 35; Defendant’s Motion), filed January 21, 2022;
Plaintiffs’ Daubert Motion in Limine to Exclude Portions of Expert Testimony

1 See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).
of Kenneth R. Quigley and Incorporated Memorandum of Law (Doc. 36;
Plaintiffs’ Motion), filed January 21, 2022. Plaintiffs and Defendant timely filed

responses to the motions. See Plaintiffs’ Motion in Opposition to Defendant’s
Daubert Motion to Exclude Testimony of Timothy P. Marshall (Doc. 39;
Plaintiffs’ Response), filed February 11, 2022; Defendant’s Motion in Opposition
to Plaintiffs’ Daubert Motion (Doc. 38; Defendant’s Response), filed February 8,

2022. Accordingly, these matters are ripe for review.
I. Background2
Plaintiffs initiated this action on February 1, 2021, by filing a Complaint
(Doc. 3; Complaint) in the Circuit Court, Fourth Judicial Circuit, in and for

Duval County, Florida. Defendant removed the case to the Middle District of
Florida on March 11, 2021. See Defendant Hartford Insurance Company of the
Southeast’s Petition for Removal (Doc. 1). In the Complaint, Plaintiffs allege
that the individual Plaintiffs, Peter E. Petersen and Mary Carter Petersen, own

a commercial building in Jacksonville Beach, Florida (the “Building”). See
Complaint ¶¶ 4–6. Plaintiff Mary Carter Petersen owns Plaintiff MCFS & BB,
Inc., which operates out of the Building. See id. ¶ 7. Plaintiffs allege that the
Building suffered physical damage in 2020 and that the physical damage

2 The Court’s citations to page numbers in documents in the record refer to the CM-
ECF-stamped page numbers located at the top of each page, rather than a document’s internal
page numbers, if any.
allowed rain to enter, causing further loss. See id. ¶¶ 9–13. Plaintiffs assert
that Defendant issued a commercial property insurance policy for the Building

but breached its contractual obligation under the policy by refusing to pay
Plaintiffs’ damages. See id. ¶¶ 4, 15–17. Defendant’s insurance policy does not
cover damage caused by rain unless the Building first sustained “physical
damage by a Covered Cause of Loss to its roof or walls through which the rain”

entered. Complaint, Ex. A at 40. Plaintiffs’ theory of the case is that wind (a
covered cause of loss) created openings in the Building through which water
entered, causing the subject damages. See Plaintiffs’ Motion at 2.
On January 21, 2022, Defendant filed a Daubert motion seeking to

exclude the testimony of Plaintiffs’ witness Timothy P. Marshall. See
Defendant’s Motion at 1. Marshall is a meteorologist and engineer with an M.S.
in atmospheric science, an M.S. in civil engineering, and over forty years of
experience. See Defendant’s Motion, Ex. A: Plaintiffs’ Rule 26 Rebuttal Expert

Disclosure (Doc. 35-1; Marshall Report) at 32. Plaintiffs identified and disclosed
Marshall as a rebuttal expert and asserted that he would testify “regarding
meteorological conditions that occurred within the proximity of the subject
building that were capable of causing or contributing to the damages to the

property. Additionally, he will explain the impact these meteorological events
have on buildings.” Id. at 2. Marshall conducted a meteorological study of wind
and rainfall events that occurred near the Building from January 2019 through
June 2020. Id. at 5. Based on official weather data gathered from Craig Airport,
Marshall concluded that the highest winds at the Building during the study’s

timeframe occurred on September 4, 2019, and February 6, 2020. See id. at 10–
11. At his deposition, Marshall testified that these wind events were
“reasonably capable” of causing damage to a commercial building. See
Plaintiffs’ Response, Ex. C: Deposition of Timothy P. Marshall, P.E. (Doc. 39-3;

Marshall Dep.) at 43–44. Defendant seeks to exclude Marshall’s testimony. See
generally Defendant’s Motion.
Plaintiffs also filed a Daubert motion in which they seek to exclude the
testimony of Defendant’s expert Kenneth R. Quigley “regarding causation of

damages, or that water intrusion was caused by construction defects and
inadequate prior repairs to the property.” Plaintiffs’ Motion at 15. Quigley is a
structural engineer with an M.S. in civil engineering and over forty years of
experience. See Plaintiffs’ Motion, Ex. 1: Report of Kenneth R. Quigley (Doc.

36-1; Quigley Report) at 33–38. Defendant retained Quigley to “determine,
based on this information [Plaintiffs’ production], whether damages were
caused by water entering the building through hole(s) created in the building
by wind forces and/or windblown debris.” Id. at 1. Quigley concluded that

“there has been historic water intrusion at this building and that water
intrusion at this building was due to problems with the construction of the
building, including previous repairs, and was not due to wind caused openings
in the building allowing water intrusion.” Id. Plaintiffs seek to exclude
Quigley’s opinion that construction defects caused the water damage to the

Building. See Plaintiffs’ Motion at 15.
II. Legal Standard
Rule 702 of the Federal Rules of Evidence (Evidence Rule(s)) 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.

Evidence Rule 702.3 In Daubert, the Supreme Court explained that Evidence
Rule 702 imposes an obligation on a trial court to act as gatekeeper, to ensure
that any and all scientific testimony or evidence admitted is not only relevant,
but reliable. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589 (1993).
The trial court must exercise “the same gatekeeping function” when
“considering the admissibility of technical expert evidence.” United States v.

3 The language of Evidence Rule 702 was amended in December 2011. The Advisory
Committee Notes accompanying this latest revision state that the changes are only stylistic
and do not make any substantive change. Evidence Rule 702 advisory committee’s note (2011
amends.). Thus, case law interpreting and applying Evidence Rule 702 prior to the 2011
changes is still applicable.
Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004) (en banc). To determine the
admissibility of expert testimony, a trial court must consider if:

(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 as determined
by the sort of inquiry mandated in Daubert; 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.

Id. The burden of establishing qualification, reliability, and helpfulness lies
with the party offering the expert opinion. See McClain v. Metabolife Int’l, Inc.
401 F.3d 1233, 1238 (11th Cir. 2005).
For the purpose of conducting the reliability inquiry mandated by
Daubert, the Supreme Court has suggested that a trial court consider a number
of factors, which include: (1) whether the theory or technique can be, and has
been, tested; (2) whether the theory or technique has been subjected to peer
review and publication; (3) the known or potential rate of error; and (4) whether
the theory has attained general acceptance in the relevant scientific
community. See Daubert, 509 U.S. at 593–94. These factors are not exhaustive,
and the Eleventh Circuit Court of Appeals has also considered whether an
expert has relied on anecdotal evidence, such as case reports; temporal
proximity; and improper extrapolation. See Allison v. McGhan Med. Corp., 184
F.3d 1300, 1312 (11th Cir. 1999). When evaluating non-scientific, experience-
based testimony, the Eleventh Circuit recognizes that “[s]ometimes the specific
Daubert factors will aid in determining reliability; sometimes other questions
may be more useful.” Frazier, 387 F.3d at 1262. Indeed, while a trial court

must always evaluate the reliability of expert testimony before allowing its
admission at trial, “[e]xactly how reliability is evaluated may vary from case to
case.” Id. Significantly, where an expert relies solely or primarily on experience
to establish the reliability of his opinion, the expert “must explain how that

experience leads to the conclusion reached, why that experience is a sufficient
basis for the opinion, and how that experience is reliably applied to the facts.”
Id. at 1261, 1265 (quoting Evidence Rule 702 advisory committee’s note (2000
amends.)). To fulfill its gatekeeping function, the Court must do more than

“simply tak[e] the expert’s word for it.” Id. at 1262 (quoting Evidence Rule 702
advisory committee’s note (2000 amends.)). The Court’s inquiry under Evidence
Rule 702 must focus on the methodology, not conclusions, but the Court is not
required to admit opinion testimony only connected to existing data by an

expert’s unsupported assertion. See Daubert, 509 U.S. at 595; Gen. Elec. Co. v.
Joiner, 522 U.S. 136, 146 (1997).
The proponent of expert testimony need not show that the opinion
proffered is scientifically correct, but only, based upon a preponderance of the

evidence, that the opinion is reliable. See Allison, 184 F.3d at 1312. Thus,
absolute certainty is not required. See Jones v. Otis Elevator Co., 861 F.2d 655,
662 (11th Cir. 1988). However, an expert must know “facts which enable him
to express a reasonably accurate conclusion instead of mere conjecture or
speculation,” id., and an expert’s assurances that he has used generally

accepted scientific methodology are insufficient, McClain, 401 F.3d at 1244.
In addition to determining the reliability of the proposed testimony,
Daubert instructs that Evidence Rule 702 requires a court to determine
whether the evidence or testimony assists the trier of fact in understanding the

evidence or determining a fact in issue. See Daubert 509 U.S. at 591. This
consideration focuses on the relevance of the proffered expert testimony or
evidence. The Supreme Court has explained that to satisfy this relevance
requirement, the expert testimony must “fit,” that is, it must be “relevant to the

task at hand.” Id. at 591, 597. In other words, it must be “sufficiently tied to
the facts of the case that it will aid the jury in resolving a factual dispute.” Id.
at 591 (quoting United States v. Downing, 753 F.2d 1224, 1242 (3d Cir. 1985)).
Because scientific testimony does not assist the trier of fact unless it has a

justified scientific relation to the facts, the Eleventh Circuit has instructed that
“there is no fit where a large analytical leap must be made between the facts
and the opinion.” McDowell v. Brown, 392 F.3d 1283, 1299 (11th Cir. 2004)
(citing Joiner, 522 U.S. at 143–46) (finding too great an analytical gap between

data suggesting that one type of cancer was caused in mice and the conclusion
or opinion that such data established causation of another type of cancer in
humans)). Expert testimony also must “concern[] matters that are beyond the
understanding of the average lay person.” Frazier, 387 F.3d at 1262. The
Eleventh Circuit has observed that “[p]roffered expert testimony generally will

not help the trier of fact when it offers nothing more than what lawyers for the
parties can argue in closing arguments.” Id. at 1262–63.
III. Discussion
A. Marshall

Defendant argues that the Court should exclude Marshall’s testimony
because Plaintiffs improperly disclosed him as a rebuttal expert, his
methodology is not reliable, and his testimony would not assist the jury.4 See
Defendant’s Motion at 4–10. Having thoroughly reviewed the arguments, the

evidence of record, and the applicable law, the Court finds that Plaintiffs
properly identified Marshall as a rebuttal witness, that he used a reliable
methodology to reach the opinions stated in his report, and that those opinions
will assist the jury. However, the Court will preclude Marshall from testifying

that storms were “reasonably capable” of damaging the Building.
1. Disclosure as a Rebuttal Witness
In a perfunctory manner, Defendant argues that Marshall is not a proper
rebuttal witness because he did not state that he had evaluated or analyzed any

4 Defendant does not contest Marshall’s qualifications as a meteorologist. The Court
finds that Marshall is well-qualified to render his meteorological opinions by virtue of his
education, training, and over forty years of experience. See Marshall Report at 32–37
(Marshall’s resume).
opinion of Defendant’s experts. See id. at 10. In opposition, Plaintiffs contend
that Marshall is a rebuttal expert because Defendant’s expert Quigley analyzed

weather conditions and asserted that “58 and 51 miles per hour gusts are well
below hurricane force winds and normally do not physically damage sound, well
maintained, buildings.” Plaintiffs’ Response at 14 (quoting Quigley Report at
18). Plaintiffs assert that Marshall responds to this “very opinion.” Id. at 15–

16.
Under Rule 26 of the Federal Rules of Civil Procedure (Rule(s)), a rebuttal
expert witness is one whose opinion is “intended solely to contradict or rebut
evidence on the same subject matter identified by another party.” Rule 26

(a)(2)(D)(ii). Here, the Court finds that Plaintiffs intended Marshall to rebut
Quigley’s discussion of weather data. On at least one point, Marshall’s
conclusion differs from Quigley’s opinion. Quigley reported that the wind on
February 6, 2020, came from the west. See Quigley Report at 18. But Marshall

found that the wind came from the southwest. See Marshall Report at 9. In
addition, Defendant provides no authority for its apparent proposition that,
because Marshall generally agreed with Quigley, Plaintiffs improperly
designated Marshall as a rebuttal witness. This situation is unlike cases where

courts have excluded so-called “rebuttal” experts because those experts
improperly sought to supplement the opinion of a previously disclosed expert or
to add new theories or damages to the plaintiff’s case. See Flamingo S. Beach I
Condo. Ass’n, Inc. v. Selective Ins. Co. of Se., 492 F. App’x 16, 25 (11th Cir. 2012)
(“Plaintiff’s late addition of Basulto was in reality an effort to substitute Basulto

as Plaintiff’s expert witness in place of Perez.”);5 Kroll v. Carnival Corp., No.
19-23017-CIV, 2020 WL 4793444, at *5–6 (S.D. Fla. Aug. 17, 2020) (“It is also
clear that Dr. Suite’s report is an attempt to add new theories and damages.”).6
Thus, the Court declines to find that Plaintiffs acted improperly by disclosing

Marshall as a rebuttal witness.
2. Methodology
Defendant raises two arguments challenging the reliability of Marshall’s
methodology. First, Defendant argues that Marshall’s testimony does nothing

more than serve as a conduit for introducing arguably inadmissible hearsay
weather reports. See Defendant’s Motion at 4–5. Second, Defendant contests
Marshall’s conclusion that the wind conditions at the Plaintiffs’ Building were
similar to the wind conditions at Craig Airport, the source of the weather data.

See id. at 5. Defendant contends that this opinion is unreliable because
Marshall did not visit the Building or Craig Airport or conduct tests to

5 The Court does not rely on unpublished opinions as binding precedent; however, they
may be cited in this Order when the Court finds them persuasive on a particular point. See
McNamara v. GEICO, 30 F.4th 1055, 1060–61 (11th Cir. 2022); see generally Fed. R. App. P.
32.1; 11th Cir. R. 36–2 (“Unpublished opinions are not considered binding precedent, but they
may be cited as persuasive authority.”).

6 The Court notes that although decisions of other district courts are not binding, they
may be cited as persuasive authority. See Stone v. First Union Corp., 371 F.3d 1305, 1310
(11th Cir. 2004) (noting that, “[a]lthough a district court would not be bound to follow any
other district court’s determination, the decision would have significant persuasive effects”).
determine whether the wind conditions at the two locations were similar. See
id. at 5–6.

In response, Plaintiffs argue that Marshall properly analyzed the
available weather data to form his opinions about weather conditions at
Plaintiffs’ Building. See Plaintiffs’ Response at 7. Plaintiffs explain that other
experts in the field rely on these official weather records, such that Marshall’s

use of them is permissible under Evidence Rule 703. See id. at 7–8. According
to Plaintiffs, Marshall used this data to deduce “that the identified squall line
in proximity to the Property was capable of producing wind and rain that could
damage the building.” Id. at 8–9. Plaintiffs also maintain that Marshall

adequately explained why he believed that conditions at Craig Airport and the
Building were similar. See id. at 9–10. Plaintiffs point out that Defendant’s
expert, Quigley, relied on similar weather data from Jacksonville International
Airport without performing tests to compare conditions at the airport and the

Building. See id.
After considering Marshall’s report and deposition, the Court concludes
that Marshall employed a sufficiently reliable methodology. Marshall testified
that he relied on documentation that is “official record” and that Defendant’s

expert Quigley relied on similar data. See Marshall Dep. at 17; see also Quigley
Report at 2; SFR Servs. LLC v. Elec. Ins. Co., No. 8:19-CV-2013-CPT, 2021 WL
1193284, at *9 (M.D. Fla. Mar. 30, 2021) (“EIC does not contest Butler’s use of
the NOAA data, nor could it, since its own experts relied on similar data in
reaching their respective conclusions.”). Evidence Rule 703 expressly allows

experts to consider otherwise inadmissible evidence “[i]f experts in the
particular field would reasonably rely on those kinds of facts or data in forming
an opinion on the subject.” Evidence Rule 703. Marshall then reviewed the
meteorological data, compared the Building’s location to the source of the

weather data, and formed an opinion about what weather events occurred at
the Building. See Marshall Report at 10–11. Other courts have found similar
methodologies to be reliable. See Incardone v. Royal Carribean Cruises, Ltd.,
No. 16-20924-CIV, 2018 WL 6520934, at *13 (S.D. Fla. Dec. 11, 2018) (“Nolan’s

report demonstrates that he relied on graphical ocean weather forecasts from
NOAA . . . . Nolan used a reliable methodology and his permissible opinions
meet the Daubert threshold.” (citations omitted)), report and recommendation
adopted, No. 16-20924-CIV, 2019 WL 8989848 (S.D. Fla. June 5, 2019); Bellina

v. Liberty Mut. Ins. Co., No. CV 19-13711, 2021 WL 1295018, at *10 (E.D. La.
Apr. 7, 2021) (“Other courts have found a similar review and synthesis of
meteorological materials, by a qualified meteorological expert, a reliable
method of concluding whether there was a hailstorm on a given date.”).

In addition, the Court finds that Marshall provided a reliable explanation
for his opinion that the weather events reported at Craig Airport did occur at
the Building. Marshall explained that the weather observations at Craig
Airport were taken at the same height as the Building. See Marshall Report at
10. Marshall also considered the differences in the terrain at Craig Airport and

at the Building and explained why these differences would likely offset each
other. See id.; see also Arlington S. Hills, LLC v. Am. Ins. Co., 51 F. Supp. 3d
681, 688–89 (N.D. Tex. 2014) (allowing an expert witness to rely on weather
reports from nearby locations to offer an opinion about the weather conditions

at the subject location). The Court finds that the methodology is consistent with
that used by other experts in the field and is sufficiently reliable to be admitted.7
Although exclusion of the testimony is inappropriate, Defendant may cross-
examine Marshall concerning any perceived deficiencies in his analysis. See

Quiet Tech. DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1341, 1345
(11th Cir. 2003) (“The identification of such flaws in generally reliable scientific
evidence is precisely the role of cross-examination.”); Incardone, 2018 WL
6520934, at *13.

3. Assistance to the Jury
Defendant argues that the Court should not admit Marshall’s testimony
because it would not assist the jury. Defendant first contends that Marshall’s

7 Defendant’s closing salvo of objections to Marshall’s methodology is likewise
unpersuasive. Defendant asserts that Marshall “offers no opinions on why the weather
occurred; the manners in which weather data could deviate from the recording instrument;
[and] the deviations in intensity weather events can have from the proximity of the recording
instrument.” Defendant’s Motion at 6. To the extent these issues are relevant, they go to the
weight of Marshall’s opinion, not to the reliability of his methodology.
testimony is unhelpful because it is unreliable. See Defendant’s Motion at 7.
Next, Defendant asserts that Marshall’s testimony would invite the jury to

commit a logical fallacy that, because a storm occurred at Plaintiffs’ Building
and Plaintiffs later discovered damage, the storm must have caused the
damage. See id. Finally, Defendant argues that Marshall’s conclusion would
not be helpful to the jury because he will not testify that a storm actually

damaged the Building. See id. at 9–10.
Plaintiffs respond by clarifying the scope of Marshall’s opinion: “Mr.
Marshall is not being offered to provide an opinion as to actual causation of
damage to the Property.” Plaintiffs’ Response at 3. Rather, Plaintiffs maintain

that Marshall’s opinion assists the jury by providing the incremental piece of
evidence that storms occurred that could have caused the damage alleged by
Plaintiffs. See id. at 12. Plaintiffs contend that Marshall’s testimony also will
assist the jury in understanding what weather conditions must occur in order

for wind to damage a commercial building. Id. at 13. Plaintiffs argue that an
ordinary juror does not understand how different weather events specifically
affect commercial buildings. See id. at 13–14.
Here, Defendant’s first argument is unavailing because the Court has

determined that Marshall’s opinion is sufficiently reliable. The Court also
rejects Defendant’s second argument because, in his report, Marshall limited
his opinion to reporting the weather that occurred and the general effects of
wind on a commercial building. See Marshall Report at 10–11. This carefully
worded opinion is unlikely to lead the jury into a logical fallacy. And, contrary

to Defendant’s third argument, the Court finds that Marshall’s limited opinion
will assist the jury. To prove that wind damaged the Building, Plaintiffs must
show that high winds occurred. Marshall could assist the jury by interpreting
weather data and testifying that the storms reported in the area during the

relevant timeframe actually passed over the Building. Marshall does not have
to prove Plaintiffs’ entire case to assist the jury. See City of Tuscaloosa v.
Harcros Chems., Inc., 158 F.3d 548, 564–65 (11th Cir. 1998) (“As circumstantial
evidence, McClave’s data and testimony need not prove the plaintiffs’ case by

themselves; they must merely constitute one piece of the puzzle that the
plaintiffs endeavor to assemble before the jury.”). Therefore, the Court finds
that the conclusions contained in Marshall’s report will assist the jury and are
admissible.

4. “Reasonably Capable” Opinion
Although Marshall may testify as to the conclusions listed in his report,
the Court will exclude Marshall’s testimony to the extent he seeks to testify that
the winds on September 4, 2019, and February 6, 2020, “were reasonably

capable of causing the damage” that Plaintiffs allege. Marshall Dep. at 43–44.
This opinion is due to be excluded for a number of reasons. First, this specific
opinion is not in Marshall’s report. See Marshall Report at 10–11. Rule 26
requires that an expert must include “a complete statement of all opinions the
witness will express and the basis and reasons for them” in his report. See Rule

26(a)(2)(B)(i). During his deposition, Marshall confirmed that the five
conclusions listed in his report comprised all of the opinions he had in the case.
See Marshall Dep. at 36. Because Marshall did not include the “reasonably
capable” opinion in his report, the Court will exclude it. Second, Marshall

expressed the opinion in response to a deposition question without identifying
a reliable basis for it. See Marshall Dep. at 43–47. Although Plaintiffs argue
that Marshall’s experience and training support the opinion, see Plaintiffs’
Response at 11, Marshall himself never explained “how that experience led to

the conclusion he reached, why that experience was a sufficient basis for the
opinion, and just how that experience was reliably applied to the facts.” Frazier,
387 F.3d at 1265.
Third, the Court finds that the opinion would not assist the trier of fact

because the phrase “reasonably capable” does not clarify the probability of
damage. In Frazier, a criminal defendant charged with kidnapping sought to
introduce an expert witness who would testify that finding the defendant’s hair
and seminal fluid on the victim “would be expected” if the alleged events had

occurred. Id. at 1248, 1252. The Eleventh Circuit concluded that the district
court did not abuse its discretion in excluding the testimony because the witness
did not have a reliable foundation for his opinion. See id. at 1264–65. In
addition, the circuit court found that the district court was within its discretion
in concluding that the opinion would not be helpful to the jury:

[B]ecause [the expert’s] opinion was imprecise and unspecific, the
members of the jury could not readily determine whether the
“expectation” of finding hair or seminal fluid was a virtual
certainty, a strong probability, a possibility more likely than not,
or perhaps even just a possibility. As a result, [the expert’s]
imprecise opinion easily could serve to confuse the jury, and might
well have misled it.

Id. Marshall’s opinion here is similarly imprecise. Accordingly, the Court finds
that Defendant’s Motion is due to be denied, in part, and granted, in part. The
Court will deny Defendant’s Motion as to the conclusions stated in Marshall’s
report, but the Court will grant Defendant’s Motion as to Marshall’s opinion
that the winds were “reasonably capable” of damaging a commercial building.
B. Quigley
Plaintiffs argue that the Court should exclude as unreliable Quigley’s
opinion that construction defects caused the water damage reported in the
Building.8 Plaintiffs repeatedly contend that Quigley’s opinions about
construction defects are “mere speculation” and are “based on presumptions
rather than fact.” Plaintiffs’ Motion at 4, 7, 14. Plaintiffs also argue that “Mr.

8 Plaintiffs do not contest Quigley’s qualifications or the fact that his testimony would
assist the jury. Indeed, the Court finds that Quigley is well-qualified to render his opinions
by virtue of his education, training, and over forty years of experience as a structural engineer.
See Quigley Report at 33–38 (Quigley’s curriculum vitae). In addition, his testimony would
assist the jury because his opinions address a central issue in the case: Did wind create
openings which resulted in water damage, or did something else allow water into the Building?
See id. at 1.
Quigley testified that he is not qualified to provide a legal opinion regarding the
cause of damage to Plaintiffs’ property.” Id. at 14.

In Defendant’s Response, Defendant contends that Quigley used a
reliable methodology by performing a water intrusion study to the extent
possible, reviewing a prior water intrusion study, and analyzing documentation
from Plaintiffs. See Defendant’s Response at 9–10. Defendant argues that

Quigley asserted a clear opinion in his report that construction defects caused
the water intrusion. See id. at 5–9. Defendant further asserts that its answers
to Plaintiffs’ interrogatories reflect Quigley’s belief that he formed and held a
properly grounded opinion about the role of construction defects in the damage

to Plaintiffs’ property. See id. at 10–11. In addition, Defendant argues that
Plaintiffs mischaracterize Quigley’s answers to questions posed during his
deposition. See id. at 11–14. Finally, Defendant contends that Plaintiffs can
cross-examine Quigley concerning any perceived inconsistencies between his

report and his deposition testimony. See id. at 2–3, 14–15.
As an initial matter, the Court finds that Quigley stated that he has an
opinion about construction defects and is qualified to render such an opinion.
In his report, Quigley stated that the “water intrusion at this building was due

to problems with the construction of the building, including previous repairs,
and was not due to wind caused openings in the building.” Quigley Report at 1.
Similarly, Quigley asserted that “[i]t is my opinion that water within this
building was caused by construction defects related to the window and door
installation and the flashing and counter flashing system between the roof and

the east and west walls.” Id. at 29. He maintained that “[t]hese opinions are
based on my education, training, and experience and are to a reasonable degree
of engineering certainty.” Id. at 31. Given these statements in the report,
Plaintiffs’ argument that Quigley himself does not believe that he has a reliable

opinion about construction defects is unavailing.
Moreover, during his deposition, Quigley stated he is certain that
construction defects caused at least some of the damage. For example, the
following passage demonstrates that Quigley formed an opinion regarding

construction defects:
Q: And while you evaluated construction defects, you’ve not formed
an opinion with certainty that that’s what caused the damage in
this case; is that fair?

A: Well, I’m certainly – I’m certain that there was a lot of water
coming in through the windows, and that was most likely due to
construction defects. That’s certainly what they repaired around
the window. They repaired the flashing around the window. Kind
of similar up at the roof intersection with the parapet, you know,
it certainly looks like there were construction defects in that
interface.

Plaintiffs’ Motion, Ex. 2: Zoom Deposition of Kenneth R. Quigley (Doc. 36-2;
Quigley Dep.) at 62–63. At one point, Plaintiffs’ lawyer asked Quigley, “But
just what potential causes of loss do you think could have contributed to this
claim?” Id. at 60. Quigley responded, “I think there’s obviously a construction
defect.” Id. Later in his deposition, Quigley categorized inadequate repairs and
improper installation as aspects of his opinion about construction defects. See

id. at 69. Contrary to Plaintiffs’ characterization, Quigley never stated that his
opinions about construction defects were merely speculation. To the extent that
Plaintiffs believe that Quigley contradicted himself in his deposition, Plaintiffs
may cross-examine him concerning those alleged inconsistent statements. See

Quiet Tech. DC-8, 326 F.3d at 1341, 1345.
Plaintiffs are correct that Quigley stated that, if this case had involved a
construction defect claim, he would have wanted to do more work. See
Plaintiffs’ Motion at 8–9 (quoting Quigley Dep. at 62–63); Quigley Dep. at 38.

But the fact that Quigley would have wanted to do more if this had been a
different case with a different claim does not mean that he did insufficient work
in this case given the claim alleged by Plaintiffs and the available evidence. He
is confident that Plaintiffs’ evidence shows water damage that is likely due to

construction defects, not wind damage. See Quigley Report at 1, 29, 31. Quigley
does not need to have absolute certainty for his opinion to be admissible. See
Jones, 861 F.2d at 662.
Notably, Plaintiffs do not identify anything specific about Quigley’s

methodology that is flawed. Although Quigley could not perform a full
inspection of the Building’s damage and prior construction because Plaintiffs’
contractor Jardy Group had already repaired the Building, see Quigley Report
at 11, the Court finds that Quigley used a reliable methodology to reach his
opinions about construction defects. Quigley noted the size, location, and

surroundings of the Building. See id. at 2, 11. He reviewed Plaintiffs’
production, including the photographs and reports of Plaintiffs’ expert Ron
Young of Jardy Group. See id. at 2, 14–30. He compared the photographs
provided by Plaintiffs to “known engineering characteristics of wind, wind

interfacing with buildings and their components, and water dispersion in
buildings.” Id. at 11. He consulted industry standards and guides, including
the ASTM E2128 Standard Guide for Evaluating Water Leakage of Building
Walls, the Brick Industry Association’s Technical Notes on Brick Construction

28D “Brick Veneer/Concrete Masonry Walls,” and the Dow Construction
Sealants Technical Manual (Americas). See id. at 11, 16, 24, 31–32. Quigley
compared what he could see of the Building’s construction to local building
codes. See id. at 11; Quigley Dep. at 103. He relied on his education, training,

and experience. See Quigley Report at 31. Quigley considered a project
proposal from 2013 in which Construction Management Consulting Group
noted apparent water intrusion issues in the Building and proposed further
investigation. See id. at 11–12. Quigley also reviewed weather records from

NOAA and photographs from GoogleEarth. See id. at 2. Finally, Quigley
visited the Building and corrected one minor aspect of his report based on what
he saw. See Quigley Dep. at 7–9.
In sum, Quigley’s process included reviewing documentation from
Plaintiffs; observing reported damage and the construction of the Building;

comparing those observations to the building code, manufacturer’s
requirements, industry standards, and his experience; considering the history
of the Building, including a previous proposal for a water intrusion study;
gathering information about weather events that could have caused wind-

created openings; and personally visiting the Building. This methodology is
sufficiently reliable for the Court to admit Quigley’s testimony. Indeed, district
courts in this circuit have approved similar methodologies used by engineers
who provided opinions about damage to buildings. See SFR Servs., 2021 WL

1193284, at *9 (approving the methodology of an engineer who considered
“purportedly-pertinent NOAA data, his own visit to the home, his own roof
inspection experience, knowledge, and training, and the three-second wind
speed contour map”); St. Louis Condo. Ass’n v. Rockhill Ins. Co., No. 18-21365-

Civ, 2019 WL 2013007, at *4 (S.D. Fla. Mar. 11, 2019) (finding reliable an
engineer’s methodology of reviewing meteorological data, making a visual
inspection of the building, conducting measurements, opening doors and
windows, observing physical evidence, consulting public records, and relying on

thirty years of experience); Travelers Prop. Cas. Co. of Am. v. All-S.
Subcontractors, Inc., No. CV 17-0041-WS-B, 2018 WL 1787884, at *7 (S.D. Ala.
Apr. 13, 2018) (“[C]ourts have recognized that an engineer’s use of techniques
of visual inspection, code review, and reliance on experience and expertise can
satisfy the Daubert reliability prong.”). Although Quigley could not review the

damage in person because the Building had already been repaired, he still
employed a sufficiently reliable methodology under the circumstances. See
Rahmings v. Essary, No. 10-CV-716, 2012 WL 12910264, at *5 (M.D. Fla. Feb.
3, 2012) (“Mr. Medwell bases his decision about the condition of the brakes on

his assessment of the damage to the brakes in accident photographs. He could
not inspect the brakes themselves as they were fixed after the accident.
Whether Mr. Medwell is credible on this point is for the jury to decide.”); Smith
W. Tex. Props., Ltd. v. Allied Prop. & Cas. Ins. Co., No. MO:18-CV-137-DC, 2020

WL 5521137, at *3–4 (W.D. Tex. Aug. 21, 2020) (finding that an expert
employed a reliable methodology by reviewing photographs of “suspected hail
strikes at the properties” and comparing them to his own experience and to
published photographs of typical hail damage). For all of the foregoing reasons,

after careful consideration of Quigley’s report, his deposition testimony, and the
other evidence of record, the Court finds that Quigley’s opinion is reliable.
Thus, Plaintiffs’ Motion is due to be denied.
IV. Conclusion

The Court finds that Plaintiffs’ expert Marshall employed a reliable
methodology and reached conclusions that will assist the trier of fact. However,
the Court will limit his testimony to the opinions expressed in his report.
Marshall may not testify that the wind events he identified were “reasonably
capable” of causing damage to Plaintiffs’ Building. The Court also finds that
Defendant’s expert Quigley used a reliable methodology in reaching his
opinions about construction defects. Therefore, the Court will allow him to
testify as to those opinions. Accordingly, it is
ORDERED:
1. Defendant, Hartford Insurance Company of the Southeast’s Motion
to Strike Expert Testimony of Plaintiffs [sic] Expert Witness
Timothy P. Marshall Under Daubert Standard and Memorandum
of Law in Support Thereof (Doc. 35) is GRANTED, in part, and
DENIED, in part.
A. The Motion is GRANTED to the extent that Marshall may
not testify to opinions not included in his report.
B. In all other respects, the Motion is DENIED.
2. Plaintiffs’ Daubert Motion in Limine to Exclude Portions of Expert
Testimony of Kenneth R. Quigley and Incorporated Memorandum
of Law (Doc. 36) is DENIED.
DONE AND ORDERED in Jacksonville, Florida, on July 19, 2022.

MARCIA MORALES HOWARD
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10110532. Public record. Not legal advice.