NORTH SHORE CO-OWNERS' ASSOCIATION, INC. v. NATIONWIDE MUTUAL INSURANCE COMPANY

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

NORTH SHORE CO-OWNERS' )

ASSOCIATION, INC., )

)

Plaintiff, )

)

v. ) No. 1:18-cv-03632-SEB-TAB

)

NATIONWIDE MUTUAL INSURANCE )

COMPANY, )

)

Defendant. )

ORDER ON MOTIONS TO STRIKE,

LIMIT, OR EXCLUDE EXPERT WITNESSES

I. Introduction

This case has been plagued by multiple discovery disputes and other disagreements that

seemingly have no end. In the latest chapter, the disputes center around expert witness

disclosures. Before the Court are motions filed by both Defendant Nationwide Mutual Insurance

Company [Filing Nos. 117 to 121] and Plaintiff North Shore Co-Owners' Association, Inc.

[Filing No. 144] to strike, preclude, and/or limit the testimony of witnesses the other side has

identified to provide opinion evidence as experts under Fed. R. Evid. 702. For reasons stated

below, Nationwide's motions to strike, preclude, or limit the testimony of Matthew Latham

[Filing No. 120], Justin Reddick [Filing No. 119], Randal Adkins [Filing No. 117], and Jane

Lampman [Filing No. 118] are granted in part. Nationwide's motion to strike Martin Shields

[Filing No. 121] is denied, as is North Shore's motion to strike Nationwide's witnesses [Filing

No. 144].

II. Background

This action began over two years ago, on November 20, 2018, when Nationwide removed

North Shore's claims for breach of contract and bad faith from state court. [Filing No. 1.] The

litigants seemingly agree that the heart of this case rests on a single question: did a hailstorm on

May 19, 2017, damage the roofs of the buildings at North Shore's condominium property that is

covered by Nationwide's policy? [Filing No. 122, at ECF p. 1.]

Both parties filed notice of service of their initial disclosures on February 18, 2019.

[Filing No. 25 and Filing No. 26.] On April 8, 2019, North Shore provided Nationwide with its

Amended Rule 26(a)(2) expert disclosures, which identified Latham, Reddick, Adkins,

Lampman, and Shields as witnesses who will provide opinions under Rule of Evidence 701 or

702 as experts at trial in this matter. [Filing No. 126-2.] On April 29, 2019, Nationwide moved

to strike North Shore's April 24 supplemental expert disclosure (and portions of an April 8

disclosure related to a witness not currently in dispute). [Filing No. 33.] The following day, the

Court denied Nationwide's motion as it was apparent that Nationwide's counsel failed to review

and follow this Court's local rules. [Filing No. 34.]

In May 2019, following an unsuccessful settlement conference, the Court warned North

Shore of the need to supplement its expert disclosures, stating: "[Nationwide] asserted [North

Shore]'s expert disclosures are insufficient. The Court encourages, but does not at this stage

require, [North Shore] to supplement its expert witness disclosures. The Court is hopeful that

this supplementation will avoid [Nationwide] filing a motion to strike [North Shore]'s experts."

[Filing No. 39, at ECF p. 1.] Despite this admonition, North Shore did not supplement its Rule

26 disclosures.

On July 31, 2020, Nationwide filed its pending motions to strike, preclude, and/or limit

the testimony of Latham [Filing No. 120], Reddick [Filing No. 119], Adkins [Filing No. 117],

Lampman [Filing No. 118], and Shields [Filing No. 121]. North Shore's response included a

variety of exhibits, including a late disclosed affidavit of Latham [Filing No. 126-13], which led

to more discord and a motion to strike Latham's affidavit [Filing No. 127]. On September 25,

2020, the Court issued an order decrying North Shore's tactics of filing late supplemental

documents to "patch up shortfalls" regarding its witness disclosures, including Latham and

Shields. [Filing No. 132, at ECF p. 1-2.] Nevertheless, the Court denied Nationwide's motion to

strike and noted that the proper way for Nationwide to raise its concerns was to include the

arguments in its reply brief in support of its original motion seeking to strike Latham's testimony.

[Filing No. 132, at ECF p. 2.]

Unfortunately, the discord did not end there. The same day that the Court entered its

order, North Shore filed a motion to strike Nationwide's reply brief. [Filing No. 133.] This led

to more time-consuming briefing and yet another Court ruling.1 On October 6, 2020,

Nationwide filed its amended witness list. [Filing No. 141.] Subsequently, on October 27, 2020,

North Shore filed its pending motion to strike Nationwide's amended witness list. [Filing No.

144.] North Shore claims that Nationwide filed a list of witnesses "for the first time" on October

6, 2020, after the close of discovery. [Filing No. 144.] In response, Nationwide labels North

Shore's claim as "patently false[,]" claiming that the October 6 filing was a trial-ready amended

witness list and that Nationwide made it clear to the Court and to the opposing party that its

1 In October, amid all these motions, responses, and orders, North Shore filed its first motion for

partial summary judgment. [Filing No. 136.] However, Nationwide filed a motion to stay the

summary judgment motion pending resolution of the motions to strike [Filing No. 140], which

the Court granted [Filing No. 146].

initial Rule 26 disclosures would serve as its initial witness list. [Filing No. 147.] In addition,

Nationwide argues that North Shore's motion is not timely, as the Court set a deadline requiring

any motion to strike experts to be filed by July 31, 2020. [Filing No. 112.] In response, North

Shore contends that Nationwide never identified its witnesses as Rule 702 experts until October

6, 2020. [Filing No. 149.]

On November 17, 2020, the Court denied North Shore's motion to strike Nationwide's

reply brief to its motions to strike North Shore's witnesses and allowed North Shore to file a sur-

reply. [Filing No. 148.] Thus, at last, the motions to strike are fully briefed and ripe for

resolution.

III. Analysis

A. Legal Standards

i. Rule 26 Expert Disclosure Requirement

Both Nationwide and North Shore maintain that various witnesses identified by the other

to provide expert testimony should be limited or excluded from providing such testimony

because of improper disclosures under Fed. R. Civ. P. 26. Rule 26(a)(2) governs the disclosure

of expert testimony:

(A) In general. In addition to the disclosures required by Rule 26(a)(1), a party

must disclose to the other parties the identity of any witness it may use at trial to

present evidence under Federal Rule of Evidence 702, 703, or 705.

(B) Witnesses Who Must Provide a Written Report. Unless otherwise stipulated

or ordered by the court, this disclosure must be accompanied by a written report—

prepared and signed by the witness—if the witness is one retained or specially

employed to provide expert testimony in the case or one whose duties as the

party's employee regularly involve giving expert testimony. . . .

(C) Witnesses Who Do Not Provide a Written Report. Unless otherwise stipulated

or ordered by the court, if the witness is not required to provide a written report,

this disclosure must state:

(i) the subject matter on which the witness is expected to present evidence

under Federal Rule of Evidence 702, 703, or 705; and

(ii) a summary of the facts and opinions to which the witness is expected

to testify.

Fed. R. Civ. P. 26(a)(2).

ii. Federal Rule of Evidence 702

In addition, both Nationwide and North Shore maintain that several purported expert

witnesses should be excluded for falling short of the admissibility standard of Fed. R. Evid. 702.

Rule 702 sets forth the general framework for the admissibility of expert testimony, and provides

that a witness who is qualified as an expert based on knowledge, skill, experience, training, or

education may provide opinion testimony so long as:

(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.

Fed. R. Evid. 702. The Supreme Court interpreted Rule 702 in Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579, 589, 125 L. Ed. 2d 469, 113 S. Ct. 2786, 2795 (1993), to

mandate that the district court "must ensure that any and all scientific testimony or evidence

admitted is not only relevant, but reliable."

In performing its gatekeeper role under Rule 702 and Daubert, the district court

must engage in a three-step analysis before admitting expert testimony. It must

determine whether the witness is qualified; whether the expert's methodology is

scientifically reliable; and whether the testimony will ‘assist the trier of fact to

understand the evidence or to determine a fact in issue. In other words, the

district court must evaluate: (1) the proffered expert's qualifications; (2) the

reliability of the expert's methodology; and (3) the relevance of the expert's

testimony.

Gopalratnam v. Hewlett-Packard Co., 877 F.3d 771, 779 (7th Cir. 2017) (internal citations and

quotation marks omitted). See also Kopplin v. Wisconsin Cent. Ltd., 914 F.3d 1099, 1103-04

(7th Cir. 2019) ("The ultimate question is whether the expert's approach is scientifically valid,

which requires a careful examination of its evidentiary relevance and reliability. The focus is on

the expert's methodology, not his ultimate conclusions." (Internal citation and quotation marks

omitted)).

B. Nationwide's motions to strike North Shore's proposed expert witnesses

Nationwide challenges five of North Shore's proffered expert witnesses: Matthew

Latham, Justin Reddick, Randal Adkins, Jane Lampman, and Martin Shields. Nationwide argues

they should be excluded because North Shore failed to comply with the disclosure requirements

of Fed. R. Civ. P. 26(a)(2) and because each purported expert fails to meet the admissibility

standard of Rule 702. [Filing No. 122, at ECF p. 2.]

The Court addresses specific arguments on admissibility as to each witness below, yet

some commonalities apply to the analysis of North Shore's expert disclosures. Generally

speaking, North Shore's disclosures are problematic. As noted above, Rule 26(a)(2)(C) requires

disclosure of (1) the subject matter about which the witness will testify as an expert; and (2) a

summary of the facts and opinions to which the witness is expected to testify. While North

Shore minimally provided this information, the disclosures repeatedly contain vague, broad

language that falls short of Rule 26's standard. For instance, North Shore identified Latham as a

public adjuster, but used nearly identical generic language to describe what his opinion testimony

would entail as it used for some of the other witnesses at issue, including general contractors

Adkins and Reddick. [Filing No. 126-2, at ECF p. 1 ("The subject matter of his testimony would

comprise of shingle damage, cosmetic shingle damage, matching the shingles, the composition

of shingles, hail damage identification, wind damage identification, and wind damage.").]

North Shore had opportunities to mend deficiencies in its disclosures. The Court

recognized deficiencies in North Shore's disclosures back in May 2019, and encouraged North

Shore to supplement its expert witness disclosures. [Filing No. 39.] North Shore failed to do so.

In regard to Latham, Adkins, and Reddick, North Shore largely failed to provide Nationwide

with a useful description of the subject matter on which the witness is expected to present

evidence under Rule 702 and/or a summary of the facts and opinions to which that witness is

expected to testify. See Fed. R. Civ. P. 26(a)(2)(C)(i)-(ii). Thus, North Shore failed to make

proper disclosures under Rule 26(a)(2).

The sanction for failing to follow Rule 26(a)(2) is exclusion. See Fed. R. Civ. P.

37(c)(1). However, this sanction is not automatic; instead, the Court must determine whether the

failure to properly disclose is harmless or justified under Fed. R. Civ. P. 37(c)(1). See, e.g.,

Tribble v. Evangelides, 670 F.3d 753, 759-60 (7th Cir. 2012) ("Without proper disclosures, a

party may miss its opportunity to disqualify the expert, retain rebuttal experts, or hold

depositions for an expert not required to provide a report. Because of these and other ways a

party may be prejudiced by an improperly disclosed expert, the sanction is severe. Under Rule

37(c)(1), exclusion of non-disclosed evidence is automatic and mandatory unless non-disclosure

was justified or harmless." (Internal citations, quotation marks, and ellipses omitted)). Such

decision is left to the discretion of the district court. See, e.g., Uncommon, LLC v. Spigen, Inc.,

926 F.3d 409, 417 (7th Cir. 2019) ("Rule 37(c)(1) states that if a party fails to comply with Rule

26(a), the evidence is excluded unless the failure was substantially justified or is harmless—and

the district court thought Spigen's failures were harmless. We review that decision for an abuse

of discretion and affirm as long as it was reasonable. The following factors. . . should guide

district courts in making Rule 37 determinations: (1) the prejudice or surprise to the party against

whom the evidence is offered; (2) the ability of the party to cure the prejudice; (3) the likelihood

of disruption to the trial; and (4) the bad faith or willfulness involved in not disclosing the

evidence at an earlier date." (Internal citations and quotation marks omitted)).

The harmful impact of the disclosures' deficiencies was mitigated, in part, because North

Shore identified these witnesses early in litigation, and Nationwide had the opportunity to depose

all of them. Thus, the prejudice and surprise to Nationwide is minimal. Moreover, while the

disclosures lack the level of detail needed under Fed. R. Civ. P. 26(a)(2), this is not a case of

complete non-disclosure. North Shore at least minimally attempted to disclose these witnesses,

and there is no evidence of bad faith. Thus, the Court declines to exclude these witnesses based

on shortcomings with North Shore's disclosures alone. However, the Court further scrutinizes

each of the purported expert witnesses and their proposed testimony, individually, for

admissibility under Fed. R. Evid. 702.

i. Matthew Latham

Nationwide argues that North Shore "failed to identify Latham's qualifications that would

establish him as an expert witness and failed to disclose a summary of Latham's proposed

opinions with supporting facts as required under Rule 26." [Filing No. 122, at ECF p. 6-7.]

Following the standard noted above, the Court will evaluate the following: (1) Latham's

qualifications to testify as an expert; (2) the reliability of his methodology; and (3) the relevance

of his testimony. See Gopalratnam, 877 F.3ed at 779.

In relation to Latham's qualifications, Nationwide argues that Latham is not qualified by

education or experience to testify as a Rule 702 expert. [Filing No. 122, at ECF p. 7.] North

Shore initially provided little information on Latham's skill, experience, or knowledge. While

North Shore's response to Nationwide's motion included an affidavit containing further

information on Latham's qualifications, Nationwide rightly raises many concerns regarding the

late-disclosed affidavit. [Filing No. 131, at ECF p. 9-10.] The Court already acknowledged the

validity of those concerns when addressing the dispute over how Nationwide should raise them,

concluding that Nationwide's reply brief was the appropriate method. [Filing No. 148.] In past

litigation, the Court granted a request to exclude this same expert where the plaintiffs failed to

highlight his qualifications that would allow him to testify as an expert. Cf. Rocklane Company

LLC v. Travels Casualty Ins. Co., No. 1:17-cv-02158-JMS-DLP, 2020 WL 1320963, at *9 (S.D.

Ind. Jan. 21, 2020) (granting the defendant's request to exclude Latham as an expert under Rule

702 because the plaintiffs failed to highlight any of Latham's academic or practical experience

that would qualify him as an expert under Daubert.). In comparison, here North Shore provided

a bit more detail, and Latham testified at his deposition regarding his qualifications as a licensed

public adjuster to interpret policy language and adjust claims for policyholders. [Filing No. 122-

3, at ECF p. 35, 43.]

Still, even assuming he may be qualified to offer an expert opinion, Latham's testimony

did not include opinions of science or industry methodology. Rather, as Nationwide articulated,

Latham's opinions are largely limited to his factual observations, and he provided no scientific or

technical foundation for his estimate that an entire roof replacement was needed. [Filing No.

122, at ECF p. 10.] Moreover, many of Latham's opinions are rooted in his interpretation of the

underlying insurance policy, in addition to his visual observations. [Filing No. 122, at ECF p.

11.]

North Shore complains that Nationwide "asked confusing questions in an attempt to

muddy the record and his foundation for estimating and determining that roofs needed to be

replaced." [Filing No. 126, at ECF p. 9.] North Shore argues that Latham's opinions are based

on his training, skill, and experience as a public adjuster and maintains that it is not very difficult

to adjust hail damage claims and identify hail damage; rather, it is mostly based on experience.

Even if this were the case, North Shore nevertheless provided scant basis for the Court to

evaluate Latham as an expert. Lacking any reliable methodology for his opinions or scientific or

technical foundation, the Court cannot find Latham qualified to testify as an expert in this matter.

Latham inspected North Shore's property during May or June 2017, but admitted that he took no

notes or pictures on that day and generated no report or estimate. [Filing No. 122, at ECF p. 9.]

He later provided for an estimate calling for an entire roof replacement on all nine of the subject

roofs, yet provided no scientific or technical foundation for having such an opinion. Rather, his

opinion rests precariously on his interpretation of the insurance policy. [Filing No. 122-3, at

ECF p. 36.] These shortcomings do not provide the Court with a sufficient basis to properly

evaluate Latham's opinions.

Alternatively, North Shore argues that Latham should be permitted to offer an opinion on

the cost to replace the shingles and soft metals. [Filing No. 126, at ECF p. 19.] The Court

agrees that this testimony is permissible. Latham, a public adjuster, provided an investigative

report and an itemized estimate. [Filing No. 126-15.] This subject is relevant to the underlying

litigation. While Nationwide generally raises issues with Latham's qualifications to provide

expert testimony under Rule 702, Nationwide makes no specific arguments regarding Latham's

ability to opine on replacement cost or the software he used to estimate the replacement cost of

for the roofs and soft metals. Thus, Latham is qualified to offer an opinion as an expert under

Rule 702 on the topic of replacement cost for shingles and soft metals. However, the remainder

of Latham's testimony is otherwise limited to matters within his personal knowledge.2

ii. Justin Reddick

Nationwide next argues that North Shore's roofing contractor, Justin Reddick, is not

qualified to offer any expert opinions. [Filing No. 122, at ECF p. 12.] As noted above, many of

the same concerns regarding North Shore's disclosure of Latham also apply to Reddick. North

Shore used similar boilerplate disclosure language and failed to identify Reddick's area of

expertise. [Filing No. 126-2, at ECF p. 2.] However, Nationwide deposed him for over seven

hours. [Filing No. 126, at ECF p. 20.] In addition, North Shore's disclosure does provide some

specific detail on the opinions that Reddick may offer, including testimony based on his

observations that the property was damaged by hail and wind and needed to be replaced and that

the shingles were discontinued, so repair would leave the owners with mismatched shingles.

[Filing No. 126-2, at ECF p. 2.] Thus, the Court declines to exclude Reddick based on non-

compliance with Rule 26.

Yet several concerns remain on Reddick's admissibility as an expert witness under Rule

702. Reddick has no technical background or experience in engineering or roofing. While

Reddick has experience as a general contractor and has been around building and construction

for a long time, his resume did not include any courses on engineering or certification in roofing.

2 Nationwide also argues that Latham should be barred from testifying because of his bias and

financial stake in the outcome of this litigation. [Filing No. 122, at ECF p. 11.] However, bias

or financial incentive alone is not enough to disqualify a witness. See, e.g., Rocklane, No. 1:17-

cv-02158-JMP-DLP, 2020 WL 1320963, at *5 ("Bias alone is not enough to disqualify an expert.

The proposed testimony must be found unreliable utilizing the Daubert framework." (Internal

citations omitted)); Tagatz v. Marquette Univ., 861 F.2d 1040, 1042 (7th Cir. 1988) ("The trier of

fact should be able to discount for so obvious a conflict of interest."). This issue is better

reserved for cross-examination.

[Filing No. 122-4, at ECF p. 123.] And while he apparently worked for Rocklane Company,

LLC as a general contractor for over seven years, this experience is not reflected on the version

of his resume attached to his deposition. [Filing No. 122-4, at ECF p. 19-21; 123.] Furthermore,

as Nationwide states, "[m]ere experience as a roofer does not qualify a witness to testify as to the

cause of alleged damage to the roof." [Filing No. 131, at ECF p. 13.]

In addition, Reddick was unable to explain the scientific principles or professional

methodology he used to determine whether hail damage occurred to shingles on North Shore's

roofs. Reddick generally claimed to have expertise on the matter of hail damage during his

deposition, described what he saw at North Shore, and provided some general knowledge on how

he identifies hail damage. [Filing No. 122-4, at ECF p. 42-44.] At Reddick's deposition, counsel

had a very contentious discussion surrounding Reddick's credentials. [Filing No. 122-4, at ECF

p. 45.] During that heated debate, North Shore referred to Reddick as a fact witness and

instructed him not to answer a question because "he's not here to testify as an expert per

[Nationwide's] instruction." [Filing No. 122-4, at ECF p. 45.]

For these reasons, Reddick may only testify as to what he observed. Reddick is not

qualified to testify as a Rule 702 expert on hail damage. Accordingly, Nationwide's motion to

strike, limit, or exclude Reddick's Rule 702 testimony is granted.

iii. Randal Adkins

The analysis of Adkins, in some ways, mirrors that of Reddick. Adkins, another one of

North Shore's roofing contractors, only inspected two of the nine roofs in question. During

Nationwide's deposition of Adkins, he stated that the only opinion he could provide was that

there was hail damage at North Shore, based on his viewing two of the nine roofs in question.

[Filing No. 122-5, at ECF p. 15.] Yet North Shore wishes to present Adkins at trial as an expert

on identifying hail damage. In doing so, North Shore once again used mostly boilerplate

disclosure language. [Filing No. 126-2, at ECF p. 2-3 ("[D]ue to his skill, experience and

knowledge concerning shingle damage from hail and wind as well as GAF shingles and the

inability of these shingles to be matched, Mr. Adkins will provide opinions under Rule of

Evidence 701 or 702 as an expert at trial in this matter. The subject matter of his testimony

would comprise of shingle damage, cosmetic shingle damage, matching the shingles, the

composition of shingles, hail damage identification, wind damage identification, wind damage,

and training he has provided on these topics."). However, as with Reddick, Nationwide had the

opportunity to depose Adkins, so any prejudice is minimized, and there is no evidence of bad

faith on North Shore's part in providing the deficient disclosure statement. Thus, the Court

declines to exclude Reddick based on non-compliance with Rule 26.

Nevertheless, the Court has similar concerns regarding the admissibility of Adkins's

opinion testimony under Rule 702 as noted above for Reddick. Regarding his qualifications,

Adkins has worked as a roofer and contractor for over 30 years but has no credentials specific to

identifying hail damage. [Filing No. 122-5, at ECF p. 7.] He testified that his only opinion in

this case is that there is hail damage on the roofs at North Shore. [Filing No. 122-5, at ECF p. 9.]

The bigger issue with Adkins's reliability, however, is lack of reliable methodology or principles

behind his opinions.

Adkins did not testify regarding any scientific or professional methodology he used to

reach his conclusion, nor did North Shore's disclosure identify any. North Shore claims that

Adkins "employed a proper and standard methodology for determining whether the buildings'

shingles sustained hail damage." [Filing No. 126, at ECF p. 25.] However, at his deposition,

when asked how he determines if there is hail impact on a roof, he replied: "[b]y inspecting the

roof." [Filing No. 122-5, at ECF p. 24.] At the same time, though, he confirmed that he only

inspected two roofs. [Filing No. 122-5, at ECF p. 15.] When directly asked if all nine roofs

were damaged by hail, he stated: "I cannot say on the seven I didn't get on." [Filing No. 122-5,

at ECF p. 15.] He eventually claimed, based on his observations, that he observed collateral

damage on other buildings that led him to believe they were damaged by hail. [Filing No. 122-5,

at ECF p. 35.] To allow Adkins to testify as an expert opinion that all nine roofs were subject to

hail damage would amount to nothing more than speculation on the seven roofs that he did not

inspect.

While experts can testify as to things they did not inspect, it would be quite a stretch to

call Adkins's conclusion, simply conflating what he observed on two roofs to an opinion as to all

nine, an "expert" opinion. Moreover, Adkins's comments about the lack of a reasonable shingle

match amount to factual recitations, which do not require expert testimony. See, e.g., Rocklane,

No. 1:17-cv-02158-JMP-DLP, 2020 WL 1320963, at *7 ("In reviewing the summary of facts and

opinions section of Adkins' written report regarding matching shingles, the Court finds that it

contains factual recitations for which expert testimony is not necessary."). Therefore,

Nationwide's motion to exclude Adkins from testifying as an expert witness under Rule 702 and

strike his conclusive statement that there is hail damage at North Shore is granted. Adkins's

testimony is limited to observations and personal knowledge as a lay witness under Rule 7013 of

the Federal Rules of Evidence. He may testify as to what he observed on the two roofs he

inspected, but he lacks the necessary qualifications in this litigation to provide expert testimony

3 North Shore disclosed all the witnesses at issue as both Rule 702 experts and as having

opinions under Rule 701. [Filing No. 126-2.] None of Nationwide's arguments address whether

the experts are qualified to offer opinions under Rule 701, so this question is not before the Court

at this time.

on any other relevant matter, including hail damage.4 Thus, as with Reddick, Adkins's testimony

is limited to personal his knowledge only.

iv. Jane Lampman

North Shore identified Jane Lampman, a representative of GAF Materials Corporation, to

offer expert testimony regarding the repairability of the shingles at North Shore because the

shingles were discontinued and could not be reasonably matched with a replacement product.

[Filing No. 126-2, at ECF p. 2.] Nationwide argues that North Shore "has failed to establish the

requirements for admissibility under Rule 702" as it relates to Lampman's purported testimony.

[Filing No. 122, at ECF p. 17.] Nationwide notes that Lampman testified that she never visited

North Shore and has no personal knowledge regarding the damage at issue or North Shore's roof

shingles. [Filing No. 122, at ECF p. 16.] Lampman testified that she could not offer any

scientific or technical opinions in this case. [Filing No. 122-6, at ECF p. 8.]

North Shore argues that Lampman is "qualified to provide expert testimony that the

shingles at North Shore were discontinued and that existing shingles cannot provide a reasonable

match." [Filing No. 126, at ECF p. 28.] However, Lampman did not visit North Shore to view

the shingles at issue and has never been on the site. While North Shore claims that the existing

shingle type is not in dispute, this still does not qualify Lampman to testify as a Rule 702 expert

at trial regarding the appropriateness of a reasonable shingle match. North Shore has not

presented any methodology or principles behind her testimony, beyond generally referring to the

fact that she works for a company that manufactures shingles. She may testify as to her

knowledge and experience, as a GAF employee, on whether a particular type of shingle has been

4 It is not possible at this stage to conclusively detail the full scope of Adkins's potential

testimony, but it is clear he is not an expert under Rule 702.

discontinued and whether she is aware of any shingle that would be appropriate to replace it.

However, Lampman is not qualified to testify on anything more than those facts. Thus, for these

reasons, Nationwide's motion to limit Lampman's testimony is granted.5

v. Martin Shields

Finally, Nationwide argues that Shields should be barred from testifying regarding the

application of the Indiana Building Code or an insurer's legal obligation to provide matching

roofs under Indiana law. [Filing No. 122, at ECF p. 17.]

North Shore provided a supplement report in May 2020 [Filing No. 122-7, at ECF p. 42-

52], and now claims that Shields is a specifically retained expert for the limited purpose of

identifying when the shingles were installed at North Shore [Filing No. 122-2, at ECF p. 2].

Shields's opinion is that the shingles were installed in 2007, based on his review of satellite

images and his impression of the color seen in those images. However, Shields admitted that a

lay person could see the same thing. [Filing No. 122-7, at ECF p. 19.]

In response, North Shore maintains that Nationwide's motion makes no specific reference

to Shields's supposedly inadmissible testimony. [Filing No. 126, at ECF p. 30.] North Shore

argues that Nationwide's arguments are not developed enough and thus waived. [Filing No. 126,

at ECF p. 30-31.] In addition, North Shore contends that the opinion that this shingle style was

discontinued is not in dispute. [Filing No. 126, at ECF p. 31.] Finally, North Shore argues that

5 It should be noted that pretrial rulings are preliminary in nature. See, e.g., Eversole v. H & J

Trucking, Inc., No. 3:09-cv-007-RLY-WGH, 2010 WL 9589559, at * 3 (S.D. Ind. June 4, 2010)

("The rulings with respect to these motions [to exclude expert testimony and in limine] are

preliminary in nature and are subject to change depending upon the evidence and argument

presented at trial."). Whether developments at trial prompt the trial judge to revisit any rulings in

this order is an issue for another day.

Shields's conclusions are the product of specialized knowledge or expertise based on his

extensive engineering and construction experience. [Filling No. 126, at ECF p. 32.]

Nationwide's motion does not dispute Shields's qualifications to identify hail damage and

provide an opinion that North Shore's roofs should be replaced. He appears well-qualified to

offer such opinions. However, in relation to the two specific issues Nationwide raises in its

motion to strike, Nationwide provides inaccurate citations to the record. Nationwide cited to and

attached Shields's deposition at Filing No. 122-7, but then the deposition discussed in the body of

Nationwide's motion is a completely different deposition, at Filing No. 97-1. Filing No. 122-7

does not contain the statements referenced or go to the page numbers the citation claims. The

deposition of Shields that does, Filing No. 97-1, was not filed in support of Nationwide's motion

to strike. Furthermore, the remaining arguments in this section of Nationwide's motion contain

no specific references to Shields's testimony, so there is not enough information for the Court to

properly evaluate the alleged issues. Thus, Nationwide's motion to strike Shields is denied.

C. North Shore's motion to strike certain defense witnesses

North Shore moved to strike6 Nationwide's proposed witnesses Joshua Trei, Drew

Knostman7, David Weaver, John Holland, and Michael Wildason from offering opinions under

Rule 702 because North Shore claims Nationwide provided untimely and incomplete disclosures

under Fed. R. Civ. P. 26(a)(2). [Filing No. 144.] Unlike Nationwide's motions, the bulk of

6 Nationwide argues that North Shore's motion is untimely and violates S.D. Ind. L.R. 37-1

because North Shore did not attempt to resolve this dispute with Nationwide before filing the

instant motion. [Filing No. 147, at ECF p. 3.] While the Court ultimately addresses the

underlying motion, it agrees that North Shore's motion is yet another example of how this matter

has become needlessly complicated.

7 Nationwide identified this witness as "Drew Knostman" in its initial disclosure [Filing No. 147-

2] and amended expert disclosure [Filing No. 141], but in the parties' briefs his last name is

spelled "Knutzman" [Filing No. 144; Filing No. 147; Filing No. 149] or "Kotsman" [Filing No.

144, at ECF p. 2]. This is yet another example of sloppy editing by both sides. For consistency

and ease of reference, the Court uses the spelling in the disclosures, "Knostman."

North Shore's arguments relate to alleged shortcomings with Nationwide's disclosure under Fed.

R. Civ. P. 26(a)(2), rather than admissibility concerns under Rule 702. Instead, North Shore

focuses on general arguments of untimeliness and insufficiency with the disclosure.

For instance, North Shore contends that on October 6, 2020, Nationwide, for the first

time, identified Trei, Knostman, Weaver, Holland, and Wildason as having expert opinions

under Rule 702. [Filing No. 144, at ECF p. 1-3.] However, Nationwide disclosed all these

individuals, except Holland, in its initial discovery disclosures in February 2019. [Filing No. 43;

Filing No. 147-2.] As reflected in the adopted Case Management Plan, Nationwide clearly stated

that its initial disclosures would serve as its initial witness list during the initial pretrial

conference. [Filing No. 43.] While Nationwide did not explicitly state that these witnesses

would offer opinions under Rule 702, Nationwide's initial disclosure provided background

information on Trei, Knostman, Weaver, and Wildsaon and a preview of what Nationwide

anticipated they would be called to testify about at trial. [Filing No. 147-2.] For instance, with

Trei, Nationwide's initial disclosure stated:

Mr. Trei will testify as to those facts and opinions contained in his report

produced at bates range NATIONWIDE001010 – NATIONWIDE001057 as well

as any supplemental reports he contributed to and/or authored. He will be called

to testify and render opinions concerning his investigation into Plaintiff's properly

loss claim, including the nature of the occurrence; the alleged damage to the

property caused by the hail/wind storm; and the scope/extent of any

repairs/replacement needed to remedy any observed damage caused by the

hail/wind storm. Mr. Trei will testify as to any observations made during his

inspection of the property, as well as any statements made by the parties or

witnesses following the occurrence and/or during the inspection. Mr. Trei will

further testify regarding his review and analysis of any reports drafted by

Plaintiff's public adjuster. Nationwide reserves the right to amend and

supplement this disclosure.

[Filing No. 147-2, at ECF p 3.] Nationwide provided similarly detailed disclosures as to

Wildason, Knostman, and Weaver.8 [Filing No. 147-2.]

As for Holland, he sat for two depositions as a corporate representative when North

Shore requested a Rule 30(b)(6) deposition. [Filing No. 144, at ECF p. 3.] Nationwide argues

that North Shore "cannot complain about Holland's opinions not being disclosed when [North

Shore] solicited those same opinions." [Filing No. 147, at ECF p. 5.] Nationwide's amended

disclosure states: "Mr. Holland has not been specifically retained as a testifying litigation expert.

However, due to his skill, experience, and knowledge, Mr. Wildason [sic?']9 will provide

opinions under Rule of Evidence 701 or 702 as an expert at trial in this matter consistent with

those in his deposition." [Filing No. 141, at ECF p. 4.] While there are certainly clerical errors

in Nationwide's disclosure of Holland, these errors are less severe than those noted above

regarding Weaver. Furthermore, any prejudice is minimal since North Shore had the opportunity

8 However, the Court does have concerns with Weaver's disclosure. In its initial disclosure,

Nationwide stated that Weaver would testify as to facts and opinions contained in the same

report as Trei and Knostman. [Filing No. 147-2, at ECF p. 2-3.] But in both the initial and

updated disclosure, Nationwide referenced both Weaver and Trei with what appears to be

possibly a scribing error from cutting and pasting Trei's disclosure, stating "Mr. Trei will

testify…" in the section disclosing Weaver. [Filing No. 141, at ECF p. 2.] North Shore contends

that "[f]rom the disclosure it appears that Mr. Weaver intends on providing Rule 702 opinions

based upon Mr. Trei's observations, rather than his own. . . . Further, Mr. Trei testified that Mr.

Weaver never went to the site and simply reviewed and signed the report." [Filing No. 144, at

ECF p. 2.] North Shore chose not to depose Weaver. And the extent of his participation in

drafting the report is not before the Court. Still, the Court agrees that Nationwide's disclosure is

confusing, error-ridden, and lacking in proper detail. To the extent that Nationwide claims

Weaver will testify as to facts and opinions contained in Trei's report, but that he did not

contribute, this is problematic. However, given that North Shore does not state any specific

substantive concerns about Weaver's proposed testimony, the Court does not address this issue

further at this point.

9 This is yet another example of poor editing and drafting, resulting in a needlessly confusing

disclosure statement.

to depose this witness twice. Holland provided testimony specifically requested by North

Shore's Rule 30(b)(6) notice.

Thus, even assuming Nationwide's disclosures were late or incomplete, such failures may

be excused if they were harmless. See, e.g., King v. Ford Motor Co., 872 F.3d 833, 838 (7th Cir.

2017) ("Rule 26(a) requires a party to disclose the name of each individual likely to have

discoverable information—along with the subjects of that information—that the disclosing party

may use to support its claims or defenses[.] If a party fails to do so, it is not allowed to use that

witness to supply evidence on a motion, unless the failure was substantially justified or is

harmless. The determination of whether a Rule 26(a) violation is justified or harmless is

entrusted to the broad discretion of the district court." (Internal citations, quotation marks, and

ellipses omitted)); United States v. Z Investment Properties, LLC, 921 F.3d 696, 698-99 (7th Cir.

2019) ("Rule 37 articulates the sanction for failing to comply with the above discovery

disclosure requirements"). As noted above in analyzing North Shore's disclosures, "[t]he

following factors. . . should guide district courts in making Rule 37 determinations: (1) the

prejudice or surprise to the party against whom the evidence is offered; (2) the ability of the

party to cure the prejudice; (3) the likelihood of disruption to the trial; and (4) the bad faith or

willfulness involved in not disclosing the evidence at an earlier date." Uncommon, LLC v.

Spigen, Inc., 926 F.3d 409, 417 (7th Cir. 2019) (internal citations and quotation marks omitted)).

All factors weigh in Nationwide's favor.

Nationwide aptly notes that North Shore never raised any concerns about its February

2019 Rule 26 disclosures prior to October 2020. North Shore makes no credible argument for

prejudice or surprise by the disclosure. As noted above, Nationwide identified the witnesses at

issue in its initial Rule 26 disclosures in February 2019, and made it clear at the initial pretrial

conference that those disclosures would serve as its initial witness list. [Filing No. 43.] North

Shore deposed Trei, Holland, and Wildason. Emails from February 2019 indicate that North

Shore's counsel was aware Trei, for instance, would offer Rule 702 opinions and North Shore

sought to depose him on the issue of whether the shingles were damaged by hail. [Filing No.

147-1.] While North Shore points out that Knostman and Weaver were not deposed, this tactical

decision was of North Shore's own doing. [Filing No. 144, at ECF p. 2.] North Shore knew that

Nationwide had disclosed these witnesses and chose not to depose them. Finally, North Shore

accuses Nationwide of bad faith and claims that Nationwide "blatantly delayed its expert

disclosures until after the close of discovery in order to avoid scrutiny of its compliance with

Federal Rule of Civil Procedure 26(a)(2)(B) and (C)." [Filing No. 149, at ECF p. 1, 7.] North

Shore has provided no support for this accusation.

Finally, North Shore raises no specific issues with the admissibility of any of these

experts' opinions under Rule 702, so any such argument is waived. See, e.g., Schaefer v.

Universal Scaffolding & Equip., LLC, 839 F.3d 599, 607 (7th Cir. 2016) ("Perfunctory and

undeveloped legal arguments are waived[.]"). Accordingly, North Shore's motion [Filing No.

144] is denied.

IV. Conclusion

North Shore and Nationwide have raised some legitimate concerns with the disclosures

and proposed testimony of each other's witnesses. However, many of these problems were

avoidable, or could have been resolved in a more simplified manner if counsel had focused on

communicating about these issues rather than using them as a vehicle to exacerbate this

litigation.

Nevertheless, for reasons conveyed above, the Court issues the following rulings:

1) Nationwide's motion to strike Latham [Filing No. 120] is granted in part. Latham

may testify as a Rule 702 expert regarding the replacement cost of shingles and soft metals, but

the remainder of his testimony is limited to his personal knowledge.

2) Nationwide's motion to strike Reddick [Filing No. 119] is granted in part.

Reddick's testimony is limited to his observations and personal knowledge.

3) Nationwide's motion to strike Adkins [Filing No. 117] is granted in part. Adkins's

testimony is limited to personal knowledge and his observations of the two roofs he inspected.

4) Nationwide's motion to strike Lampman [Filing No. 118] is granted in part.

Lampman's testimony is limited to her knowledge and experience, as a GAF employee,

regarding whether a particular type of shingle has been discontinued and whether she is aware of

any shingle that would be appropriate to replace it.

5) Nationwide's motion to strike Shields [Filing No. 121] is denied. Shields is

qualified to identify hail damage and provide an opinion on whether North Shore's roofs should

be replaced. Nationwide's remaining arguments regarding Shields are unpersuasive due to

obvious errors in Nationwide's brief.

6) North Shore's motion [Filing No. 144] to strike Nationwide's witnesses Trei,

Knostman, Weaver, Holland, and Wildason is denied. Any errors with Nationwide's disclosures

were harmless, though the Court has noted specific concerns regarding Weaver.

Date: 2/12/2021

Lz (SA

Tim A. Baker

United States Magistrate Judge

Southern District of Indiana

Distribution:

All ECF-registered counsel of record via email

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