Wunstell v. Clear Blue Specialty Insurance Company

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

SUZANNE WUNSTELL, ET AL. CIVIL ACTION

VERSUS No. 22-975

CLEAR BLUE SPECIALTY SECTION I

INSURANCE COMPANY

ORDER & REASONS

Before the Court is a motion1 in limine filed by defendant Clear Blue Specialty

Insurance Company (“defendant”). Defendant’s motion seeks to exclude the reports

and testimony of plaintiffs Suzanne and Blyght Wunstell’s (“plaintiffs”) experts,

Susan Lewis (“Lewis”) and Henry LaBrie (“LaBrie”).2 For the following reasons, the

Court grants the motion in limine in part and denies it in part.

I. BACKGROUND

A. Factual History

Defendant issued policy number OUA10074103-01 to the plaintiffs for the

period of May 13, 2021 to May 13, 2022.3 Plaintiffs allege that the covered property

sustained significant damage caused by Hurricane Ida and Tropical Storm Nicholas,

which made landfall on August 29, 2021, and September 14, 2021, respectively.4

1 R. Doc. No. 38.

2 Defendant also filed a motion for partial summary judgment, arguing that if the

Court grants defendant’s motion in limine, plaintiffs will lack evidence to prove the

cause of the damages plaintiffs allege, or that any additional damages are owed. See

R. Doc. Nos. 39 (original motion for summary judgment), 46 (substituted motion for

summary judgment).

3 R. Doc. No. 39-3, at 1.

4 R. Doc. No. 45, at 1.

Plaintiffs initially reported damages due to Hurricane Ida, and defendant’s

adjuster performed an inspection on September 4, 2021, issuing an estimate of

$103,743.23 in damages, net of deductible.5 Defendant issued payments of $3,000 and

$30,000 on September 21 and 22, 2021, respectively.6 Defendant sent an additional

adjuster on September 28, 20217 and between November 6, 2021 and February 15,

2022, defendants issued four payments to plaintiffs, totaling $131,828.40.8

Unsatisfied with the amount paid by the defendant, plaintiffs retained Lewis,

a licensed adjuster,9 to provide estimates of damage to their property for each storm.10

Lewis performed a single inspection of the property on February 10, 2022. LaBrie, a

contractor and plaintiffs’ “consultant,”11 was present during the inspection and

assisted Lewis by taking moisture readings in the property.12 After the inspection,

Lewis issued two estimates: One for Hurricane Ida, containing an estimate of

$298,119.40 in damages, and one for Tropical Storm Nicholas, containing an estimate

of $163,751.80 in damages.13 Lewis’ two reports are plaintiffs’ only expert reports;

LaBrie did not author a report.14

5 Id. at 2.

6 R. Doc. No. 53, at 7.

7 Id.; R. Doc. No. 39-4, at 48.

8 R. Doc. No. 53, at 7.

9 R. Doc. No. 44-3, at 1.

10 Id.

11 R. Doc. No. 44, at 6.

12 Id. at 5.

13 R. Doc. No. 45-6, at 1.

14 R. Doc. No. 38-1, at 2.

Following receipt of these two estimates, on March 25, 2022, defendant sent

Gregory Landes to perform a reinspection of the property and he provided an estimate

of damages for the complete scope of work in the amount of $295,560.20.15 On March

4 and 11, 2022, defendant issued payment of $73,890.72 and $10,858.24,

respectively.16 Defendant then issued an additional payment of $60,639.06 on May

11, 2022.17 Plaintiffs provided defendant with a contents list on July 28, 2022, in the

amount of $76,144,18 and defendants issued the most recent payment to plaintiffs in

the amount of $45,271.02 on August 18, 2022.19 In total, the defendant has paid

plaintiffs $355,487.44.20 All payments have been made pursuant to plaintiffs’

Hurricane Ida claim.21

15 R. Doc. No. 55-6, at 2. Landes’ estimate notes that “[b]ased on the information from

the homeowner’s estimator Susan Lewis, who inspected the property [on] February

10, 2022, the insurance carriers’ adjuster John Alligood[’s] . . . photo sheets and our

inspection on March 25, 2022, it is very difficult to delineate where Hurricane Ida

damages ended and Tropical Storm Nicholas damages began. There are no definitive

photographs showing the actual damages that occurred as a result of each loss.

Documentation for the conditions of the property after each loss is lacking, affecting

the ability to correctly assess the damages for each loss event. There appears to be

overlapping damages to the dwelling resulting from the two losses, but again without

more definitive documentation, it cannot be broken down properly.” R. Doc. No. 39-5,

at 5.

16 R. Doc. No. 53, at 7

17 Id.

18 R. Doc. No. 55, at 3.

19 R. Doc. No. 53, at 7; R. Doc. No. 55-7, at 1.

20 R. Doc. No. 39, at 4 (“To date the Defendant has issued payments totaling

$272,053.13 for Coverage A Dwelling, $220.43 for Coverage B Other Structures,

$47,213.88 for Coverage C Personal Property, and limits up to $36,000 for Coverage

D Loss of Use.”); R. Doc. No. 53, at 7.

21 R. Doc. No. 46-3, at 2.

B. Procedural History

On June 14, 2022, this Court issued a scheduling order which states, in

relevant part:

Written reports of experts, as defined by Federal Rule of Civil

Procedure 26(a)(2)(B), who may be witnesses for Plaintiffs fully

setting forth all matters about which they will testify and the basis

therefor shall be obtained and delivered to counsel for Defendant

as soon as possible, but in no event later than Wednesday, July 6,

2022. The same deadline applies for any expert disclosures

pursuant to Federal Rule of Civil Procedure 26(a)(2)(C).22

The next paragraph, pertaining to the defendant’s expert reports and disclosures, is

identical except that it references “Defendants” and sets the deadline date for a

month later.23

Both the defendant and the plaintiffs filed their expert reports and disclosures

on August 5, 2022.24 Plaintiffs filed a second witness and exhibit list on August 25,

2022.25

C. Defendant’s Motion in Limine

In its motion, the defendant submits that the reports and testimony of

plaintiffs’ experts, LaBrie and Lewis, should be excluded on the grounds that: (1)

plaintiffs’ expert disclosures were untimely;26 (2) Lewis’ written expert reports satisfy

neither the requirements of Rule 26 of the Federal Rules of Civil Procedure nor the

22 R. Doc. No. 8, at 2 (emphasis added).

23 Id. (emphasis added).

24 R. Doc. Nos. 23 (defendant’s witness and exhibit list), 24 (plaintiffs’ witness and

exhibit list).

25 R. Doc. No. 29.

26 R. Doc. No. 38, at 3.

requirements of this Court’s scheduling order;27 (3) Lewis’ testimony and reports are

“not [] helpful to the jury to determine whether the hurricane caused damage to the

property or to quantify any such damage[;]”28 (4) plaintiffs cannot demonstrate that

Lewis’ valuations are reliable;29 and (5) LaBrie did not issue an expert report, as

required by Rule 26 and this Court’s scheduling order, and therefore cannot testify

as an expert at trial.30 For the reasons discussed below, this Court grants the motion

in part and denies it in part.

II. STANDARD OF LAW

Federal Rule of Civil Procedure 26(a)(2)(B) establishes the requirements for

written disclosures of witnesses who are “retained or specially employed to provide

expert testimony in the case.” “Unless otherwise stipulated or ordered by the court,”

a party’s expert disclosure must be accompanied by a written report which contains:

(i) a complete statement of all opinions the witness will express and

the basis and reason for them; (ii) the facts or data considered by

the witness in forming them; (iii) any exhibits that will be used to

summarize or support them; (iv) the witness’s qualifications,

including a list of all publications authored in the previous 10

years; (v) a list of all other cases in which, during the previous 4

years, the witness testified as an expert at trial or by deposition;

and (vi) a statement of the compensation to be paid for the study

and testimony in the case.

Fed. R. Civ. P. 26(a)(2)(B)(i)-(vi).31

27 Id. at 4–5.

28 Id. at 5–8.

29 Id. at 8–9.

30 Id. at 8.

31 The issues raised in the motion currently before the Court pertain solely to Rule

26(a)(2)(B)(i) through (iii).

The requirement that expert witnesses include a statement of all opinions they

will testify to in their written report is echoed in this Court’s scheduling order:

“Written reports of experts, as defined by Federal Rule of Civil Procedure 26(a)(2)(B),

. . . fully setting forth all matters about which they will testify and the basis therefor

shall be obtained and delivered to counsel for Defendant as soon as possible . . . .”32

Per the Advisory Committee on Civil Rules’ note to Rule 26, “[e]xpert reports under

Rule 26 must be ‘detailed and complete,’ not ‘sketchy and vague.’” Harmon v. Georgia

Gulf Lake Charles L.L.C., 476 F. App’x 31, 36 (5th Cir. 2012) (quoting Advisory

Committee Notes).

“District courts have the discretion to exclude expert . . . testimony when a

party does not comply with [Rule 26(a)(2)’s disclosure requirements] in preparing an

expert report . . . .” S. Snow Mfg. v. Snowizard Holdings, Inc., No. 06-9170, 2013 WL

161189, at *2 (E.D. La. Jan. 15, 2013) (Brown, C.J.) (citing Harmon, 476 F. App’x at

36). Accordingly, as this Court has previously held, “[o]pinions not included in a

required report may not be offered.” Beech v. Ariatic Marine, L.L.C., 511 F. Supp. 3d

750, 759 (E.D. La. 2021) (Africk, J.).

III. LAW AND ANALYSIS

A. Exclusion of Plaintiffs’ Expert Reports and Disclosures for Untimeliness

Is Not Appropriate

As previously noted, the Court’s scheduling order states that plaintiffs’ expert

reports and disclosures were due “in no event later than Wednesday, July 6, 2022[,]”33

32 R. Doc. No. 8.

33 R. Doc. No. 8, at 2.

and the defendant’s were due on Friday, August 5, 2022.34 However, instead of filing

their expert reports and disclosures on July 6, 2022, plaintiffs filed on August 5,

2022—a full month late. It appears that counsel for the plaintiffs mistook the

deadline for the defendant’s expert reports and disclosures as the deadline for their

own.35

Federal Rule of Civil Procedure 16(b) “authorizes the district court to control

and expedite pretrial discovery through a Scheduling Order.” Pride Centric Res., Inc.

v. LaPorte, No. 19-10163, 2021 WL 4476796, at *2 (E.D. La. Sept. 30, 2021) (Vitter,

J.). Rule 16 further provides that a scheduling order “may be modified only for good

cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). Pursuant to Rule 16, the

Court has “broad discretion” to enforce its scheduling order. See Geiserman v.

MacDonald, 893 F.2d 787, 790 (5th Cir. 1990) (“[O]ur court gives the trial court ‘broad

discretion to preserve the integrity and purpose of the pretrial order.’”) (quoting

Hodges v. United States, 597 F.2d 1014, 1018 (5th Cir. 1979)). This discretion extends

to excluding untimely expert reports. Briley v. Aquarius Boat Corp., No. 05-5711,

2007 WL 4532240, at *1 (E.D. La. Feb. 22, 2007) (Africk, J.) (excluding a plaintiff’s

expert report that was provided to the defendant over two months after the deadline

stated in the Court’s scheduling order.).

When deciding whether to exercise the Court’s discretion to exclude evidence,

34 Id.

35 In their opposition to defendant’s motion in limine, plaintiffs assert that “[w]itness

and [e]xhibit lists were due on August 5, 2022. Plaintiffs filed their witness and

exhibit list on August 5, 2022, (doc. 24) the same day as Defendants [sic] filed theirs.”

R. Doc. No. 44, at 4.

the Court weighs the following factors: (1) the party’s explanation for its failure to

timely identify its witnesses; (2) the importance of the proposed testimony; (3) any

potential prejudice in allowing the admission of the testimony; and (4) the availability

of a continuance to cure such prejudice. Geiserman, 893 F.2d at 790; accord Briley,

2007 WL 4532240, at *1–2.

Applying these factors, first, plaintiffs have not offered a justification for their

failure to abide by the deadlines established in the Court’s scheduling order. This

appears to be due to the fact that, as of the time of their reply, plaintiffs were laboring

under the misapprehension that both plaintiffs’ and defendant’s expert reports and

disclosures were due on August 5, 2022. Failure to closely read the Court’s order is

not generally an adequate justification, although the Court cannot state that

counsel’s conduct was intentional.

Second, the proposed testimony of plaintiffs’ experts Lewis and LaBrie is

central to plaintiffs’ case. Indeed, plaintiffs’ case requires testimony as to causation.

See Ferguson v. State Farm Ins. Co., No. 06-3936, 2007 WL 1378507 (E.D. La. May 9,

2007) (Berrigan, J.) (discussing burdens of proof under Louisiana law in cases

concerning insurance coverage); Royal Manufactured Homes, LLC v. N.H. Ins. Co.,

No. 6:09-1063, 2011 WL 3468391, at *4 (W.D. La. Aug. 5, 2011).

Third, there is little evidence that admitting plaintiffs’ experts’ reports and

testimony would prejudice the defendant. The defendant has received Lewis’ expert

reports36 and has already had an opportunity to depose both Lewis and LaBrie.37 The

defendant does not argue that it would be prejudiced if the Court were to admit

plaintiffs’ expert reports and testimony in spite of their lateness.

Fourth, and finally, trial in this matter is scheduled for November 14, 2022,

just over a month and a half away. Neither party has requested a continuance and

“[a] continuance at this eleventh hour is neither appropriate nor in the interests of

justice.” Briley, 2007 WL 4532240, at *2.

Weighing the Geiserman factors, the Court finds that exclusion of plaintiffs’

expert reports and disclosures due to their late filing is not appropriate.

B. Lewis’ Expert Reports Do Not Address Causation and Do Not Meet the

Requirements of Rule 26(A)(2)(B) or This Court’s Scheduling Order

Lewis authored plaintiffs’ only two expert reports: one pertaining to the

damage caused by Hurricane Ida38 and one pertaining to the damage caused by

Tropical Storm Nicholas.39 Both of her expert reports contain the same seven

sentences, which the plaintiffs assert contain her expert opinion as to causation40:

The water causing the and these issues of type [sic] damages is

category 3 water according to ANSI/IICRC S500. This category of

water requires remove [sic] and replacement of materials.

After surveying the area for wind damages, evidence of tornadic

activity was discovered within the area. The vibration and

36 LaBrie did not author an expert report. R. Doc. No. 38-1, at 2.

37 See id. at 5 n.2.

38 R. Doc. No. 44-1.

39 R. Doc. No. 44-2.

40 R. Doc. No. 44, at 3 (“In these reports, Ms. Lewis stated her opinion regarding what

caused the damages on each report, and the data she used to make them . . . . On

page 7 of her Hurricane Ida estimate, Ms. Lewis states: [the seven sentences

excerpted here.]”).

movement of the structure of home [sic] more likely than not

caused plumbing pipe damages as well as electrical wiring

damages.

Due to the impact of the coronavirus pandemic, Hurricane Ida, and

Hurricane Nicholas, costs have significantly increased for this area

for limited labor, materials, and equipment. Prices also reflect

[s]ubcontractor overhead and profit. General contractor overhead

and profit will be addressed on the subtotal cost of the estimate by

the standard ten and ten percentage.41

The remainder of both of Lewis’ reports do not offer any opinions as to

causation, and instead consist of itemized estimates of the cost of repairs to the

property and photographs of the damage Lewis attributes to either storm. Defendant

argues that these few sentences do not satisfy Rule 26(a)(2)(B) and this Court’s

scheduling order. Accordingly, Lewis’ report must be excluded and she may not testify

as an expert concerning causation.42

This Court agrees with the defendant. The few sentences transcribed above

constitute the entirety of Lewis’ expert opinion as reflected in her reports. The reports

are too conclusory and fail to satisfy Rule 26.

For instance, the first sentence43 of Lewis’ reports discusses “causation,” yet

speaks in only general terms and without any foundation for the opinion.

41 R. Doc. No. 44-1, at 7; R. Doc. No. 44-2, at 2.

42 R. Doc. No. 38-1, at 4–5.

43 “The water causing the and these issues of type [sic] damages is category 3 water

according to ANSI/IICRC S500.” R. Doc. No. 44-1, at 7; R. Doc. No. 44-2, at 2.

“ANSI/IICRC 500” is a reference to a general standard44 which “describes the

procedures to be followed and the precautions to be taken when performing water

damage restoration in residential, commercial, and institutional buildings, and the

systems and personal property contained within those structures.”45 These standards

include different “categories” of water, based on the range of contamination in the

water, with “category 3 water” being “grossly contaminated.”46

Lewis’ brief comment does not connect “category 3 water” and its generally

associated damages with either Hurricane Ida or Tropical Storm Nicholas, and it does

not address the essential questions of causation: whether the additional damages

plaintiffs claim were caused by either or both of the storms. Nor does the statement

provide the Court with information regarding how Lewis arrived at her conclusion

that the damages claimed by the plaintiffs were caused by “category 3 water.” A

passing and decidedly unclear reference to causation—“causing the and these issues

of type [sic] damages”—is not sufficient to meet Rule 26(a)(2)(B)’s requirement that

expert disclosures contain “a complete statement of all opinions the witness will

44 Lewis’ reference to “ANSI/IICRC S500” appears to be a citation to the standard

promulgated by Institute of Inspection Cleaning and Restoration Certification

(“IICRC”), a member of the American National Standards Institute (“ANSI”). IICRC

Standards, INST. INSPECTION CLEANING & RESTORATION CERTIFICATION,

https://iicrc.org/iicrcstandards/ (last accessed Sept. 29, 2022).

45 ANSI/IICRC S500 Standard for Professional Water Damage Restoration, INST.

INSPECTION CLEANING & RESTORATION CERTIFICATION, https://iicrc.org/s500/ (last

accessed Sept. 29, 2022).

46 BSR/IICRC S500 Standard for Professional Water Damage Restoration 5–6 (drft.

5th ed. 2021), INST. INSPECTION CLEANING & RESTORATION CERTIFICATION,

https://cdn.ymaws.com/www.iicrc.org/resource/resmgr/docs/standards/iicrc_s500_dra

ft_standard_pu.pdf.

express and the basis and reason for them” and “the facts or data considered by the

witness in forming them[.]” Fed. R. Civ. Proc. 26(a)(2)(B)(i), (ii).

Even if this oblique reference to causation is read to assert that Hurricane Ida

and Tropical Storm Nicholas resulted in water intrusion into plaintiffs’ home, which

then caused the damages for which plaintiffs seek payment—a generous reading—

such an assertion would be too conclusory. For Lewis to declare that “category 3

water” caused damage to plaintiffs’ home (if indeed that is what this sentence means)

without providing any information with regards to how she arrived at that conclusion,

including the data and methodologies she relied upon, amounts to a conclusion

without any support.

Lewis’ subsequent assertions that “[a]fter surveying the area for wind

damages, evidence of tornadic activity was discovered within the area” and that “[t]he

vibration and movement of the structure of home more likely than not caused

plumbing pipe damages as well as electrical wiring damages”47 are likewise too

conclusory to constitute an admissible expert opinion as to whether the claimed

damages were caused by Hurricane Ida and/or Tropical Storm Nicholas, or to

attribute the damages to one storm and/or the other. Lewis inspected the property on

February 10, 2022,48 nearly five months after Tropical Storm Nicholas and five and

a half months after Hurricane Ida. It is unclear how—after so many intervening

months and without viewing the property between the two storms—she arrived at

47 R. Doc. 44-1, at 7; R. Doc. No. 44-2, at 2.

48 R. Doc. 44-1, at 7; R. Doc. No. 44-2, at 2.

her conclusion and also attributed the damages to a particular storm.49 Her reports

offer no discussion of the “basis or reasons” or the “facts or data considered” when

forming her opinion that (1) tornadic activity occurred, (2) the tornadic activity “more

likely than not” caused damage to the electrical wiring and plumbing in plaintiffs’

home, (3) the tornadic activity was caused by either Hurricane Ida and/or Tropical

Storm Nicholas.

Without such content, Lewis’ reports fail to comply with Rule 26 and this

Court’s scheduling order. Moreover, because Lewis’ reports do not offer an admissible

opinion as to causation, including how she arrived at her opinion, she may not testify

as to causation. Accordingly, both Lewis’ expert reports and testimony are properly

excluded.50

C. LaBrie May Testify as a Lay Witness

The defendant argues that as plaintiffs submitted no expert report by LaBrie,

as required by Rule 26, and this Court’s scheduling order, he may not testify as an

expert. Plaintiffs do not appear to contest the defendant’s argument that LaBrie

cannot testify as an expert, instead urging that he be allowed to provide lay witness

testimony.

49 Lewis includes costs for electrical and plumbing repairs in both her Hurricane Ida

and Tropical Strom Nicholas reports. See R. Doc. No. 38-3, at 2, lines 4, 332–33; R.

Doc. No. 38-4, at 2, lines 1–3. She does not state how she attributed particular

plumbing and electrical damages to a specific storm.

50 Because the Court finds that Lewis’ expert reports and testimony should be

excluded for failure to satisfy the requirements of Rule 26 and the Court’s scheduling

order, the Court will not address defendant’s additional argument that Lewis’ reports

and testimony should be excluded because they are not relevant or helpful to the jury.

The admissibility of opinions by lay witnesses is governed by Federal Rule of

Evidence 701, which provides that non-expert witnesses may offer opinions that are

“rationally based on the witness’s perception[,]” are “helpful to clearly understanding

the witness’s testimony or to determining a fact in issue[,]” and are “not based on

scientific, technical, or other specialized knowledge . . . .”

As noted by the Fifth Circuit, “the distinction between lay and expert

testimony is that lay testimony ‘results from a process of reasoning familiar in

everyday life,’ while expert testimony ‘results from a process of reasoning which can

be mastered only by specialists in the field.’” Pendarvis v. Am. Bankers Ins. Co. of

Fla., 354 F. App’x 866, 868 (5th Cir. 2009) (quotations and citations omitted). Thus,

“[t]he general rule is that lay witnesses may ‘draw straightforward conclusions from

observations informed by [their] own experience’ . . . . In other words, a lay witness

may testify ‘as a witness relaying his own observations,’ but not as a knowledgeable

expert who can ‘provide the jury with an overview’ of a particular field of knowledge

and ‘authoritatively’ speak on an issue.” StoneCoat of Tex., LLC v. ProCal Stone

Design, LLC, 2019 WL 9899920, at *20 (E.D. Tex. June 28, 2019) (quoting United

States v. Riddle, 103 F.3d 423, 429 (5th Cir. 1997)). “A lay opinion must be based on

personal perception, must be one that a normal person would form from those

perceptions, and must be helpful to the jury.” United States v. Ebron, 683 F.3d 105,

136–37 (5th Cir. 2012).

While the Fifth Circuit has “allowed lay witnesses to express opinions that

required specialized knowledge[,]” if the witness does not “wield[] his expertise . . . in

a way that is incompatible with a lay witness[,]” Riddle, 103 F.3d 428–29, this holding

applies only when the lay witness gained their specialized knowledge about a topic

through extensive observation in a specific context over an extended period of time.

For example, lay testimony of FBI agents regarding the “meaning and use of certain

code words in the drug trade” was not improper despite requiring specialized

knowledge on the part of the agents because the witnesses based their opinions on

their “extensive participation” and “first-hand observations in a specific

investigation.” United States v. El-Mezain, 664 F.3d 467, 514 (5th Cir. 2011), as

revised (Dec. 27, 2011) (discussing United States v. Miranda, 248 F.3d 434, 441 (5th

Cir. 2001) (emphasis added)); see also United States v. McMillan, 600 F.3d 434, 456

n.72 (5th Cir. 2010) (“A witness’s specialized knowledge, or the fact that he was

chosen to carry out an investigation because of this knowledge, does not render his

testimony ‘expert’ as long as it was based on his ‘investigation and reflected his

investigatory findings and conclusions, and was not rooted exclusively in his expertise

. . . .’”) (quoting United States v. Rigas, 490 F.3d 208, 224 (2d Cir. 2007)).51

In the instant case, plaintiffs do not claim that LaBrie gained any specialized

knowledge specifically related to their insurance claims through extensive

51 By contrast, the witness in Riddle exceeded the scope of proper lay witness

testimony when he did not limit his opinion testimony to “straightforward conclusions

from observations informed by his own experience” as a bank examiner and instead

offered his opinion on “prudent” banking practices, “dr[e]w on his specialized

knowledge as a bank examiner[,]” and asserted a causal relationship between the

defendant’s actions and the bank’s failure. 103 F.3d at 428–29. Because his testimony

was not based upon specialized knowledge gained from extensive participation in the

specific circumstances and facts underlying the case, but instead from his general

specialized knowledge gained as a bank examiner, his lay testimony was improper.

observation of their property over an extended period of time. Instead, plaintiffs

argue that because LaBrie was present for and assisted in Lewis’ inspection,52 it is

appropriate for LaBrie to testify as a fact witness concerning “the damages he

observed” and “the impressions he formed” while assisting Lewis.53 Plaintiffs argue

that such testimony will be “helpful to the jury in determining damages to the

[property’s] structure, appliances, cooling systems, and other related factual

determinations.”54

Finally, the Fifth Circuit has addressed the concern voiced by the defendant

that allowing LaBrie to testify as a lay witness would allow the plaintiffs to

circumvent the requirements of the Federal Rules of Civil Procedure and the Federal

Rules of Evidence. The “foundational requirement” that “lay opinion testimony may

be elicited only if it is based on the witness’s first-hand knowledge or observations[,]”

the Fifth Circuit noted, “helps to eliminate the risk that a party will circumvent the

reliability requirements set forth in Federal Rule of Evidence 702 by adducing expert

testimony in lay witnesses’ clothing.” DIJO, Inc. v. Hilton Hotels Corp., 351 F.3d 679,

685–86 (5th Cir. 2003). Accordingly, the Court will not disallow LaBrie’s lay

testimony at this time, but will evaluate the same at trial.

IV. CONCLUSION

For the reasons stated herein,

52 The plaintiffs note that LaBrie “was the person who took moisture readings in the

[plaintiffs’] home.” R. Doc. No. 44, at 5.

53 Id. at 6.

54 Id.

IT IS ORDERED that defendant’s motion in limine to exclude the reports and

testimony of plaintiffs’ expert Lewis and the testimony of plaintiffs’ expert LaBrie is

GRANTED IN PART and DENIED IN PART;

IT IS FURTHER ORDERED that defendant’s motion in limine is

GRANTED to the extent that Lewis’ reports and testimony are excluded;

IT IS FURTHER ORDERED that defendant’s motion in limine is DENIED

to the extent that LaBrie is not prohibited from testifying as a lay witness.

New Orleans, Louisiana, October 7, 2022.

NCE M. AFRICK

UNITED STATE DISTRICT JUDGE

17