Predelus v. Atain Specialty Insurance Company

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 21-23382-Civ-GAYLES/TORRES

ANDY PREDELUS,

Plaintiff,

v.

ATAIN SPECIALTY INSURANCE

COMPANY,

Defendant.

___________________________________________/

ORDER ON DEFENDANT’S DAUBERT MOTION

This matter is before the Court on Atain Specialty Insurance Company’s

(“Defendant”) Daubert motion to strike and exclude Andy Predelus’ (“Plaintiff”)

expert witness. [D.E. 30]. Plaintiff responded to Defendant’s motion on

September 6, 2022 [D.E. 38] to which Defendant replied on September 20, 2022.

[D.E. 46]. Therefore, Defendant’s motion is now ripe for disposition. After careful

review of the motion, response, reply, relevant authority, and for the reasons

discussed below, Defendant’s motion is DENIED.1

I. BACKGROUND

Plaintiff filed this action on August 31, 2021, in Florida state court and

Defendant removed it to federal court on September 21, 2021, based on diversity

jurisdiction. This case is a property insurance coverage dispute pursuant to an

1 On August 23, 2022, the Honorable Darrin P. Gayles referred Defendant’s Daubert

motion to the undersigned Magistrate Judge for disposition. [D.E. 31].

insurance policy that Defendant issued to Plaintiff. The policy relates to a multi-

family property located at 780 NE 127 Street, North Miami, Florida, for the period

of August 28, 2020, to August 28, 2021.

Plaintiff alleges that on March 28, 2021, the property’s sewer pipe system

failed, causing wastewater backups in two of the property’s units and resulting in

water damage to interior finishes and flooring of the property. Plaintiff filed an

insurance claim shortly thereafter. However, after inspecting the property,

Defendant denied coverage for the alleged damages because, according to its

interpretation of the insurance agreement, Plaintiff’s loss was excluded by the

terms of the policy. Plaintiff disagreed and commenced this lawsuit, alleging that

Defendant’s denial constituted a breach of the insurance policy. Among other

things, the parties dispute whether the terms of the policy provide coverage of

“tear-out” expenses, which are the costs associated with digging out and replacing

the property’s faulty sewage pipe system.

II. APPLICABLE PRINCIPLES AND LAW

The decision to admit or exclude expert testimony is within the trial court’s

discretion and the court enjoys “considerable leeway” when determining the

admissibility of this testimony. See Cook v. Sheriff of Monroe County, Fla., 402 F.3d

1092, 1103 (11th Cir. 2005). As explained in Daubert v. Merrell Dow Pharm., Inc.,

509 U.S. 579 (1993), the admissibility of expert testimony is governed by Fed. R.

Evid. 702. The party offering the expert testimony carries the burden of laying the

proper foundation for its admission, and admissibility must be shown by a

preponderance of the evidence. See Allison v. McGhan Med. Corp., 184 F.3d 1300,

1306 (11th Cir. 1999); see also United States v. Frazier, 387 F.3d 1244, 1260 (11th

Cir. 2004) (“The burden of establishing qualification, reliability, and helpfulness

rests on the proponent of the expert opinion, whether the proponent is the plaintiff

or the defendant in a civil suit, or the government or the accused in a criminal

case.”).

“Under Rule 702 and Daubert, district courts must act as ‘gate keepers’ which

admit expert testimony only if it is both reliable and relevant.” Rink v. Cheminova,

Inc., 400 F.3d 1286, 1291 (11th Cir. 2005) (citing Daubert, 509 U.S. at 589).2 The

purpose of this role is “to ensure that speculative, unreliable expert testimony does

not reach the jury.” McCorvey v. Baxter Healthcare Corp., 298 F.3d 1253, 1256

(11th Cir. 2002). Also, in its role as Agatekeeper,@ its duty is not Ato make ultimate

conclusions as to the persuasiveness of the proffered evidence.@ Quiet Tech. DC-8,

Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1341 (11th Cir. 2003)

To facilitate this process, district courts engage in a three-part inquiry to

determine the admissibility of expert testimony:

(1) the expert is qualified to testify competently regarding the matters

he intends to address; (2) the methodology by which the expert reaches

2 Rule 702 states:

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.

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.

City of Tuscaloosa, 158 F.3d 548, 562 (11th Cir. 1998) (citations omitted). The

Eleventh Circuit refers to the aforementioned requirements as the “qualification,”

“reliability,” and “helpfulness” prongs and while they “remain distinct concepts”;

“the courts must take care not to conflate them.” Frazier, 387 F.3d at 1260 (citing

Quiet Tech, 326 F.3d at 1341).

In determining the reliability of a scientific expert opinion, the Eleventh

Circuit also considers the following factors to the extent possible:

(1) whether the expert’s theory can be and has been tested; (2) whether

the theory has been subjected to peer review and publication; (3) the

known or potential rate of error of the particular scientific technique;

and (4) whether the technique is generally accepted in the scientific

community. Notably, however, these factors do not exhaust the

universe of considerations that may bear on the reliability of a given

expert opinion, and a federal court should consider any additional

factors that may advance its Rule 702 analysis.

Quiet Tech, 326 F.3d at 1341 (citations omitted). The aforementioned factors are

not “a definitive checklist or test,” Daubert, 509 U.S. at 593, but are “applied in

case-specific evidentiary circumstances,” United States v. Brown, 415 F.3d 1257,

1266 (11th Cir. 2005). While this inquiry is flexible, the Court must focus “solely on

principles and methodology, not on conclusions that they generate.” Daubert, 509

U.S. at 594-95. It is also important to note that a “district court’s gatekeeper role

under Daubert ‘is not intended to supplant the adversary system or the role of the

jury.’” Quiet Tech, 326 F.3d at 1341 (quoting Maiz v. Virani, 253 F.3d 641, 666

(11th Cir. 2001)). Rather, “[v]igorous cross-examination, presentation of contrary

evidence, and careful instruction on the burden of proof are the traditional and

appropriate means of attacking but admissible evidence.” Daubert, 509 U.S. at 580;

see also Chapman v. Procter & Gamble Distrib., LLC, 766 F.3d 1296, 1306 (11th Cir.

2014) (“As gatekeeper for the expert evidence presented to the jury, the judge ‘must

do a preliminary assessment of whether the reasoning or methodology underlying

the testimony is scientifically valid and of whether that reasoning or methodology

properly can be applied to the facts in issue.’”) (quoting Kilpatrick v. Breg, Inc., 613

F.3d 1329, 1335 (11th Cir. 2010)).

“[T]he objective of [the gatekeeping role] is to ensure the reliability and

relevancy of expert testimony. It is to make certain that an expert, whether basing

testimony upon professional studies or personal experience, employs in the

courtroom the same level of intellectual rigor that characterizes the practice of an

expert in the relevant field.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152

(1999). The district court’s role is especially significant since the expert’s opinion

“can be both powerful and quite misleading because of the difficulty in evaluating

it.” Daubert, 509 U.S. at 595 (quoting Jack B. Weinstein, Rule 702 of the Federal

Rules of Evidence is Sound; It Should Not Be Amended, 138 F.R.D. 631, 632 (1991)).

III. ANALYSIS

Defendant’s motion seeks to exclude the testimony and expert report of

Plaintiff’s building engineering expert, Harold R. Charles, on three different

grounds: (i) the untimeliness of Plaintiff’s expert disclosure, (ii) the unreliability of

Mr. Charles’ opinions, and (iii) the irrelevance of Mr. Charles’ expert conclusions.

Plaintiff responds by noting that Mr. Charles untimely disclosure – if untimely at

all – was harmless, that Mr. Charles’ methodology was sound and consistent with

practices relied on by experts in his field, and that his opinions are relevant to the

dispute of covered damages at hand. We will discuss each of these arguments in

turn, but for the reasons that follow, we agree with Plaintiff that exclusion of

Mr. Charles is not warranted in this case. As such Defendant’s motion is DENIED.

A. Plaintiff’s Untimely Expert Disclosure

Defendant’s first argument is that Mr. Charles should be excluded because

Plaintiff failed to disclose his expert report on or before March 25, 2022, as required

in the Court’s Scheduling Order. [D.E. 30 at 8]. Defendant claims that Plaintiff’s

piecemeal submission of multiple expert disclosures failed to comply with both the

timing and substantive requirements of Federal Rule of Civil Procedure 26(a)(2),

thus, his report should be striken by this Court. We disagree. Striking Mr. Charles’

report under the circumstances of this case would be an excessive sanction given

that neither the delay nor the deficiencies of the disclosures amounted to

substantive harm to Defendant.

Rule 26(a)(2)(B)(i) provides that a written expert report must contain “a

complete statement of all opinions the witness will express and the basis and

reasons for them.” An expert witness has a duty to supplement his or her report “in

a timely manner if the party learns that in some material respect the disclosure or

response is incomplete or incorrect, and if the additional or corrective information

has not otherwise been made known to the other parties during the discovery

process or in writing.” Fed. R. Civ. P. 26(e)(1)(A). “If a party fails to provide

information . . . as required by Rule 26(a) or (e), the party is not allowed to use that

information . . . to supply evidence . . . at a trial, unless the failure was

substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). “Exclusion is also

appropriate pursuant to Rule 16(b), which ‘authorizes the district court to control

and expedite pretrial discovery through a scheduling order’ and which gives the

court ‘broad discretion to preserve the integrity and purpose of the pretrial order,’

including the exclusion of evidence as a means of enforcing the pretrial

order.” Buxton v. Lil’ Drug Store Prods., Inc., 2007 WL 2254492, at *7 (S.D. Miss.

Aug. 1, 2007), aff'd, 294 F. App’x 92 (5th Cir. 2008) (quoting Geiserman v.

MacDonald, 893 F.2d 787, 790 (5th Cir. 1990)).

When a party fails to comply with Rule 26, the sanction of exclusion is

automatic and mandatory unless the sanctioned party can show that its violation

was either justified or harmless. See Fed. R. Civ. P. 37(c)(1); Cooper v. Southern

Co., 390 F.3d 695, 728 (11th Cir. 2004) (explaining that compliance with Rule 26’s

expert disclosure requirements is “not merely aspirational”), overruled on other

grounds, Ash v. Tyson Foods, Inc., 546 U.S. 454, 457 (2006); Mitchell v. Ford Motor

Co., 318 F. App’x 821, 825 (11th Cir. 2009) (affirming order striking expert for not

properly disclosing the scientific bases for his expert opinion in a timely

manner); United States v. Batchelor-Robjohns, 2015 WL 1761429, at *2 (S.D. Fla.

June 3, 2005) (granting motion to strike expert’s report and excluding expert from

testifying and explaining that “Rule 37(c)(1) requires absolute compliance with Rule

26(a), in that it mandates that a trial court punish a party for discovery violations

in connection with Rule 26 unless the violation was harmless or substantially

justified.”) (internal quotations omitted).

The determination of whether a party’s failure is substantially justified or

harmless lies within the “broad discretion” of the Court. Abdulla v. Klosinski, 898

F. Supp. 2d 1348, 1359 (S.D. Ga. 2012). In determining whether to allow an

untimely expert report under Rule 37(c)(1), the Court considers: (1) the unfair

prejudice or surprise of the opposing party, (2) that party’s ability to cure the

surprise, (3) the likelihood and extent of disruption to the trial, (4) the importance

of the evidence, and (5) the offering party’s explanation for its failure to timely

disclose the evidence. See Mobile Shelter Systems USA, Inc. v. Grate Pallet

Solutions, LLC, 845 F. Supp. 2d 1241, 1250–51 (M.D. Fla. 2012).

Here, the motion to strike does not, and cannot, allege that Defendant

suffered meaningful harm as a consequence of Plaintiff’s deficient disclosures. For

starters, it is undisputed that while the scheduling order set March 25, 2022, as the

expert disclosure deadline, the parties expressly stipulated to extending this

deadline to at least April 12, and arguably up to April 15. See [D.E. 30-2];

[D.E. 38-2]. Keeping this chronology in mind, Plaintiff’s final disclosure of April 15,

then, was delayed by less than a week at most. Moreover, it is evident from the

record that Defendant was put on notice of Plaintiff’s intention to produce expert

opinion regarding causation and cost of repairs as early as April 12. [D.E. 30-3].

This initial disclosure, although deficient in that it did not accurately convey that

Mr. Charles would be providing causation testimony and omitted his actual report,

did include the plumbing report prepared by Total Leak,3 as well as the exhibits

documenting the state of the pipes that Mr. Charles relied on when reaching his

own conclusions. This initial disclosure also included Mr. Charles’ CV describing

the extent of his experience analyzing properly loss claims. Id. at 9-24.

The record also reflects that Plaintiff’s final disclosure and expert report was

produced to Defendant more than three months in advance of the discovery cut-off

date on July 28, 2022, and more than six months ahead of the trial scheduled to

commence on November 22, 2022. [D.E. 22]. This factual context weighs heavily in

favor of denial of the motion to strike. This procedural backdrop also makes it clear

that none of the authorities that Defendant purports to cite in support of its motion

are applicable here. In Romero, for instance, the plaintiff produced its incomplete

disclosure report more than four months after the scheduling order deadline, which

rendered the defendant unable to “prepare for rebuttal or cross-examination.”

Romero v. Drummond Co., 552 F.3d 1303, 1323 (11th Cir. 2008) (affirming exclusion

of expert). By comparison, here, Defendant was provided with Mr. Charles’ expert

report weeks in advance of the parties’ rebuttal deadline, and more than two

3 On May 04, 2021, Plaintiff retained Total Leak Detection, a plumbing services

provider, to examine the pipes and document the issues that were causing the

sewage overflows at Plaintiff’s property. Total Leak ran a video line though the

plumbing system and captured video and photograph evidence documenting the

state of deterioration of the pipes. Total Leak also prepared a report that concluded

that the entire sanitary plumbing system needed to be replaced and provided an

estimate of the cost that replacing the pipes would entail. Id. at 19. Plaintiff’s

initial disclosure listed Total Leak as an expert witness, but that was latter

withdrawn.

months ahead of Mr. Charles’ deposition, which Plaintiff took on June 28, 2022.

[D.E. 18]; [D.E. 30-6]. Based on this context, we find that Plaintiff’s motion to strike

lacks merit.

To be sure, we do not find that Plaintiff’s piecemeal productions of incomplete

disclosures in this case is beyond reproach, but merely that Plaintiff’s Rule 26(a)(2)

deficiencies were not so egregious or harmful as to justify striking under the

circumstances. As stated above, the record shows that Plaintiff produced an initial

disclosure on April 12, 2022, a date the parties had agreed upon. Although this

disclosure was woefully incomplete, it conveyed Plaintiff’s intention to produce

causation and cost of repair expert testimony, as well as the Total Leak report and

the list of exhibits that Mr. Charles ultimately used for his own report; three days

later, on April 15, Plaintiff produced Mr. Charles’ final report, which expressly

conveyed causation and replacement costs opinions, and confirmed that he

consulted the Total Leak materials in reaching his conclusions; this final disclosure

was produced weeks in advance of the May 5, 2022, rebuttal deadline, more than

two months ahead of Mr. Charles’ deposition on June 28, 2022, and more than six

months before trial. In light of these facts, it is clear that Plaintiff’s faulty

disclosures were harmless and that the striking of Mr. Charles’ testimony is

unwarranted. See Ferguson v. Bombardier Servs. Corp., 244 F. App'x 944, 950 (11th

Cir. 2007) (upholding decision to allow expert report to be submitted after the

discovery cut-off date, but eight months before trial); Reese v. Herbert, 527 F.3d

1253, 1265 (11th Cir. 2008) (“[T]he expert disclosure rule is intended to provide

opposing parties reasonable opportunity to prepare for effective cross examination

and perhaps arrange for expert testimony from other witnesses.”); Benner v. NCL

(Bahamas) Ltd., No. 15-20585-CIV, 2016 WL 11547582, at *8 (S.D. Fla. Mar. 29,

2016) (denying motion to strike “woefully inadequate” disclosure where “[Plaintff]

received [expert’s] report and his counsel used it to take [expert’s] deposition”; AIM

Recycling of Fla., LLC v. Metals USA, Inc., No. 18-CV-60292, 2019 WL 11505086, at

*3 (S.D. Fla. Oct. 8, 2019) (not striking untimely report where “[Defendants] have

ample time to depose [ ] rebuttal expert and adequately prepare for trial.”).

Accordingly, Defendant’s motion to strike on this basis is DENIED.

B. Whether Mr. Charles’ Opinion Should be Excluded

Defendant next argues that Mr. Charles’ opinion should be excluded because

it is unreliable. Notably, Defendant does not challenge Mr. Charles’ qualifications

to provide expert testimony regarding sewer pipe damage or construction repair

costs.4 Instead, Defendant makes Daubert challenges to multiple aspects of

Plaintiff’s expert opinion, including the methodology implemented by Mr. Charles in

producing his repair cost estimate of $240,266, the lack of personal testing or

observations by Mr. Charles upon the subject property, and Mr. Charles’

overwhelming reliance on the Total Leak report and exhibits in reaching his

causation and cost opinions.5

4 Mr. Charles is the President and CEO of GRREEN ACE, LLC., a company that

provides property loss analysis services. Mr. Charles has an engineering

background and over two decades of experience in construction planning and

design.

5 We pause to note that Mr. Charles plans to provide opinion testimony regarding

causation in this case. Although Defendant suggests that “Plaintiff did not retain

As noted above, “[t]he reliability standard is established by Rule 702’s

requirement that an expert’s testimony pertain to ‘scientific . . . knowledge,’ since

the adjective ‘scientific’ implies a grounding in science’s methods and procedures,

while the word ‘knowledge’ connotes a body of known facts or of ideas inferred from

such facts or accepted as true on good grounds.” Daubert, 509 U.S. at 580. This

entails an assessment of whether the “methodology underlying the testimony is

scientifically valid.” Id. at 592. The four non-exhaustive factors used to evaluate

the reliability of a scientific expert opinion include the following:

(1) whether the expert’s theory can be and has been tested; (2) whether

the theory has been subjected to peer review and publication; (3) the

known or potential rate of error of the particular scientific technique;

and (4) whether the technique is generally accepted in the scientific

community.

Frazier, 387 F.3d at 1262 (citations omitted).

After an independent review of the underlying expert report and the

testimony in the record, we find that Defendant’s motion lacks merit because

Mr. Charles’ opinions were arguably drawn from reasonable data and methods that

characterize the practice of experts in his field. First, it is undisputed that

Mr. Charles conducted an on-site visual inspection of Plaintiff’s property and that

he personally interviewed Plaintiff about the recurring sewage overflows and

related damages. [D.E. 30-5 at 6] (“The purpose of the inspection was to determine

the cause of and extent of water damage reported at the property . . . and also the

Mr. Charles to provide causation testimony,” both his expert report and deposition

testimony have made this explicitly clear for Defendant. See [D.E. 30-6 at 7:17-23]

(Q. Okay. So you have causation opinions? A. I do. Q. Okay. All right. Let’s go back

to your report).

cost of repair to replace the cast iron drain line with PVC and restore building

materials and interior finishes in all units.”). As noted in the report, Mr. Charles’

assessment of the property was also guided by industry standards, practice

manuals, and his experience as a licensed engineer, building inspector, and general

contractor. Id. at 6-7, 22 (citing, among others, to the “Standard and Reference

Guide for Professional Water Damage Restoration”; the “Miami-Date County

Property Appraiser Website”; and “Damage Assessment for Residential and

Commercial Structures” literature). Indeed, the forty-one page long costs summary

articulates in granular fashion the specific construction details and costs associated

with each room, including the specific square footage and construction task

involved. Id. at 39-84. We find that this constitutes sufficient indicia of reliability.

See Bodo v. GeoVera Specialty Ins. Co., No. 8:18-CV-678-T-30AAS, 2019 WL

9598314, at *4 (M.D. Fla. Mar. 8, 2019) (“Construction damage summary related to

[] tear-out/cast iron pipe claim” admissible where licensed building contractor

“personally inspected the property”; “talked to [Plaintff] about her loss”; and the

“estimate include[d] the specific construction details and costs in each room.”).

Although Defendant claims otherwise, nothing in its motion or the record it

cites undermine the admissibility of, as opposed to the weight or strength of, Mr.

Charles’ expert opinion. It is noteworthy, for instance, that Defendant chose not to

file a rebuttal opinion challenging the methodology employed by Mr. Charles.

Likewise, a review of Mr. Charles’ deposition transcript does not reveal any

testimony calling into question the admissibility of his appraisal testimony. Indeed,

contrary to Defendant’s assertion that Mr. Charles’ failed to provide an explanation

as to how he created the estimate, his testimony confirms the steps that he took in

reaching his opinion, including inspecting the property in March 2022, interviewing

Plaintiff about the incident, assessing Total Leak’s report and photographic

evidence of the pipe system, reviewing the record in this case, and relying on his

substantial experience in the field of properly loss analysis. See [D.E. 30-6 at

8:3-9:5]. Mr. Charles also expressly explained the scope of his estimate and what it

encompasses:

The other parts of my estimate consisted of pretty much putting the

sand around the PVC pipe, and then back filling it, and compacting it,

and the concrete slabs that would be installed right above the

compacted field, and also the finishing including flooring system; that

would have been to be replaced in its entirety in each unit because, you

know, the tiles match then, you know, you would need to replace the

entire surface area. And whatever was affected by water would also

have been replaced and whatever was damaged by the – during the

demolition work it would also have to be replaced.

Id. at 11:8-12:15.

In sum, Defendant’s assertions that Mr. Charles’ estimate is unexplained or

incapable of being tested are simply not supported by the record. As noted above,

his report described the methodology he implemented in ascertaining his figures,

and nothing in his deposition testimony, or elsewhere, suggests that his detailed

forty-one page long summary is legally unreliable because it cannot be tested. Cf.

Jones Creek Invs., LLC v. Columbia Cnty., Georgia, No. CV 111-174, 2013 WL

12141348, at *19 (S.D. Ga. Dec. 23, 2013) (excluding costs estimates where expert

conceded that his figures were “rough estimates rather than financial calculations,

and his calculations cannot be replicated because he deleted his work and cannot

recreate it.”). In the absence of rebuttal evidence undermining Mr. Charles’

methods, or testimonial admissions indicating that his methods were indeed

unreliable, we cannot agree that, under these facts, Mr. Charles’ methods are so

flawed as to warrant exclusion. See Haman, Inc. v. Chubb Custom Ins. Co., No.

2:18-CV-01534-KOB, 2020 WL 4569470, at *6 (N.D. Ala. Aug. 7, 2020) (admitting

causation opinion and appraisal estimates despite imperfect actual cash value and

depreciation assessments by expert); Furmanite Am., Inc. v. T.D. Williamson, Inc.,

506 F. Supp. 2d 1126, 1131 (M.D. Fla. 2007) (“[Defendant’s] arguments that

[expert’s] findings are speculative and lead to an unreliable estimate of worth are

arguments as to the credibility of [the] findings rather than the general acceptance

of his methods.”).

Defendant’s additional purported attacks on Mr. Charles’ methodology are

similarly unavailing. Defendant takes issue with the fact that Mr. Charles did not

conduct any testing at the property himself, and that he blindly relied on Total

Leak’s report in reaching his causation opinion. These objections are of no moment.

For starters, personally conducting testing is not a prerequisite for the admission of

expert testimony, and Defendant cites no authority to the contrary. See Fed. R.

Evid. 703 (“An expert may base an opinion on facts or data in the case that the

expert has been made aware of or personally observed.”) (emphasis added); Peteet v.

Dow Chem. Co., 868 F.2d 1428, 1432-33 (5th Cir. 1989) (rejecting argument seeking

to exclude opinion of expert toxicologist because he never personally examined the

plaintiff). As noted above, Mr. Charles personally inspected the property,

interviewed plaintiff about the incident, and relied on materials – including

photographic and video evidence – that experts in his field normally rely on.

Similarly, Defendant’s claim that Mr. Charles overwhelmingly relied on the

Total Leak report fails to persuade. Although Defendant characterizes Mr. Charles’

use of the report as an act of mere parroting, both the report itself, as well as

Mr. Charles’ deposition testimony contradict this claim. To begin with, and as

noted earlier, Mr. Charles’ opinion regarding cost of repairs goes well beyond the

scope of the Total Leak report. Whereas the latter focused on the cost of repair to

replace the cast iron plumbing system itself, the former also accounts for the costs

associated with restoring the building materials and interior finishes in all units to

pre-loss condition (“tear-out expenses”). [D.E. 30-5 at 7]. Further, Mr. Charles’

opinion regarding causation is not just based on Total Leak’s report. As he

responded during his deposition:

No, that’s not – my opinion is not just based on that. I mean, clearly, I

reviewed the reports and itemized the photographs that showed the

rupture and corroded iron lines. But also my knowledge of, you know,

plumbing systems and how they work. I have been a general contractor

having built similar buildings then I am aware of what happens when

sewage backup is experienced. Also, I collected information from the

insured. And I also, you know, reviewed all the documentation that

was provided and my reference manuals, and all of that together

helped me to arrive at the opinion that I did.

[D.E. 30-6 at 14:4-16].

Furthermore, nothing in Defendant’s motion challenges the legitimacy of the

Total Leak report consulted by Mr. Charles. Defendant does not challenge the

accuracy of the report nor the propriety of the video and photographic evidence it

documented, and we do not find anything in the record making us doubt its

reliability. Accordingly, in light of this record, we cannot agree with Defendant’s

position that Mr. Charles’ use of the plumbing report amounts to the kind of blind

reliance on extraneous sources that warrants exclusion. See Palma v. Safeco Ins.

Co. of Illinois, No. 820CV251TKKMJSS, 2021 WL 1405507, at *3 (M.D. Fla. Apr.

14, 2021) (“It is normal for one expert to partially rely on another expert’s report to

form his or her own opinion.”); Arch Specialty Ins. Co. v. Balzebre, No. 10-23775-

CIV, 2013 WL 12061814, at *1 (S.D. Fla. Jan. 9, 2013) (“There is a distinction,

which is applicable here, between an expert basing his independent opinions upon

hearsay and otherwise inadmissible evidence, and an expert merely parroting the

expert opinion of another.”); Nat'l Union Fire Ins. Co. of Pittsburgh v. Tyco

Integrated Sec., LLC, No. 13-CIV-80371, 2015 WL 11251759, at *12 (S.D. Fla. July

6, 2015) (“an expert’s hasty adoption of another expert’s opinion raises concerns to

the extent that the first expert’s opinion may be unreliable.”) (emphasis added);

Hendrix v. Evenflo Co., 255 F.R.D. 568, 607 (N.D. Fla. 2009), aff'd sub nom. Hendrix

ex rel. G.P. v. Evenflo Co., 609 F.3d 1183 (11th Cir. 2010) (“An expert may properly

rely on the opinion of another expert.”).

We recognize that Mr. Charles’ methodology may be vulnerable to criticism,

but “[a]n expert’s method need not be perfect, nor need he apply it perfectly.” Banta

Properties, Inc. v. Arch Specialty Ins. Co., 2011 WL 13096149, at *4 (S.D. Fla. Dec.

20, 2011) (citing Pandora Jewelers 1995, Inc. v. Pandora Jewelry, LLC, 2011 WL

2295269, at *5-6 (S.D. Fla. June 8, 2011) (noting that a rebuttal expert could testify

to the flaws in a report based on imperfect data or imperfect methodology). The

defects Defendant identifies merely affect the weight of Mr. Charles’ opinions, as

opposed to their admissibility. See, e.g., Pods Enterprises, Inc. v. U-Haul Int'l, Inc.,

2014 WL 2625297, at *3 (M.D. Fla. June 12, 2014) (“PEI also argues that Dr. Wood

improperly weighted the data, included improper questions, and failed to employ

proper quality controls. These criticisms likewise go to the weight of her opinions,

not their admissibility.”). This means that, even if Mr. Charles did not use a perfect

methodology, he used his extensive experience and observations to determine the

cause of the pipes’ malfunctioning, as well as the costs associated with restauration

of the property post-removal. While Defendant may take issue with those

observations, and challenge them at trial, Mr. Charles has presented a reliable

methodology that passes muster under Daubert and therefore Defendant’s motion to

exclude his testimony and opinions is DENIED.

C. Whether Mr. Charles’ Opinions are Relevant

Lastly, Defendant moves this Court to exclude Mr. Charles’ opinions on the

basis that his opinions will not be helpful to the trier of fact due to their irrelevancy.

Specifically, Defendant contends that Mr. Charles’ replacement costs, which include

costs associated with matching expenses, are irrelevant because the insurance

policy in this case did not provide coverage of such losses. We reject this argument

because the question of whether replacement or matching expenses are covered

under the policy’s terms is not an issue to be decided on a motion in limine. See

Barnext Offshore, Ltd. v. Ferretti Grp. USA, Inc., No. 10-23869-CIV, 2012 WL

13012778, at *7 (S.D. Fla. May 24, 2012) (“Defendants’ initial argument is an

inappropriate request for the Court to rule on an issue of law. Such a request is not

properly presented in a motion in limine and therefore will not be addressed

further.”); Hall v. Nettles, No. 1:08-CV-2437-TCB, 2010 WL 11493784, at *11 (N.D.

Ga. Jan. 7, 2010) (“The Court finds that Defendants’ arguments are their position

on the disputed facts, and the Court will not resolve the factual disputes within the

context of this motion.”); Soliday v. 7-Eleven, Inc., No. 2:09-CV-807-FTM-29, 2011

WL 1837807, at *1 (M.D. Fla. Apr. 20, 2011) (stating that a motion in limine is not a

motion “to determine the sufficiency of the evidence or merits of an issue”) (citation

omitted).

Accordingly, we find that Mr. Charles’ opinions as to what could have caused

the cast iron pipes to malfunction and the cost of replacing the sewage system and

restoration of the property are sufficiently related to the coverage dispute at hand,

and would be helpful to the trier of fact. See Marquez v. Nat'l Fire & Marine Ins.

Co., 551 F. Supp. 3d 1313, 1324 (S.D. Fla. 2021) (“under Florida law, the

replacement cost is still relevant to the jury’s ultimate determination on damages,

as actual cash value is typically derived from the full replacement cost.”).

IV. CONCLUSION

For the foregoing reasons, Defendant’s Daubert motion [D.E. 30] to exclude

the testimony and opinions of Plaintiff’s experts is DENIED.

DONE AND ORDERED in Chambers at Miami, Florida, this 19th day of

October, 2022.

/s/ Edwin G. Torres

EDWIN G. TORRES

United States Magistrate Judge