Lighthouse Ranch for Boys, Inc. v. Safepoint Insurance Company

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

LIGHTHOUSE RANCH FOR BOYS, INC. CIVIL ACTION

VERSUS No. 22-1988

SAFEPOINT INSURANCE COMPANY SECTION I

ORDER & REASONS

Before the Court is a motion in limine,1 filed by defendant SafePoint Insurance

Company (“SafePoint”) to exclude the opinions and testimony of plaintiff’s expert

witnesses. Plaintiff Lighthouse Ranch for Boys (“Lighthouse Ranch”) opposes the

motion.2 Also before the Court is a motion, filed by Lighthouse Ranch, to amend its

expert witness disclosures.3 SafePoint opposes that motion.4 For the reasons below,

the Court grants SafePoint’s motion in limine and denies Lighthouse Ranch’s motion

to amend its expert disclosures.

I. FACTUAL BACKGROUND

This is an insurance dispute. SafePoint insured Lighthouse Ranch’s property,

which was damaged by both Hurricane Ida in August 2021 and Hurricane Nicholas

in September 2021.5 After a dispute arose as to the amount of payment owed under

1 R. Doc. No. 39.

2 R. Doc. No. 43.

3 R. Doc. No. 54.

4 R. Doc. No. 56.

5 E.g., R. Doc. Nos. 38, at 1; 42, at 1.

the policy, SafePoint invoked appraisal on the property. Appraisal was completed on

December 13, 2022.6

The parties attempted to resolve the dispute in private mediation on January

6, 2023. After that mediation failed, the Court continued the trial, pretrial conference,

and dispositive motions deadline to allow the parties to file motions regarding the

appraisal award.7 The Court recently denied SafePoint’s motion to confirm the

appraisal award, as well as its motions for summary judgment.8

II. LEGAL STANDARDS

a. Motion to Amend Expert Reports and Disclosures

Federal Rule of Civil Procedure 16(b) governs requests to modify the Court’s

scheduling order, including requests to file expert reports after the scheduling order’s

deadline. The Fifth Circuit has instructed that four factors should be considered when

determining whether the report of a late-designated expert witness should be

allowed: (1) the importance of the proposed testimony, (2) the party’s explanation for

its failure to comply with the court’s scheduling order, (3) the potential prejudice that

would arise from allowing the testimony, and (4) the availability of a continuance to

cure such prejudice. Harmon v. Georgia Gulf Lake Charles LLC, 476 F. App’x 31, 36

(5th Cir. 2012). A district court has “broad discretion to preserve the integrity and

6 R. Doc. No. 54-1, at 2.

7 R. Doc. No. 135.

8 R. Doc. No. 57.

purpose of the pretrial order.” Geiserman v. MacDonald, 893 F.2d 787, 790 (5th Cir.

1990).

b. Motion in Limine

Federal Rule of Evidence 702 governs the admissibility of expert witness

testimony. Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 588 (1993); United

States v. Hitt, 473 F.3d 146, 148 (5th Cir. 2006). Rule 702 provides:

A witness who is qualified as an expert by knowledge, skill, experience,

training, or education may testify in the form of an opinion or otherwise

if:

(a) the expert’s scientific, technical, or other specialized knowledge

will help the trier of fact to understand the evidence or to

determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods;

and

(d) the expert has reliably applied the principles and methods to the

facts of the case.

“To qualify as an expert, ‘the witness must have such knowledge or experience in [his]

field or calling as to make it appear that his opinion or inference will probably aid the

trier in his search for truth.’” United States v. Hicks, 389 F.3d 514, 524 (5th Cir. 2004)

(quoting United States v. Bourgeois, 950 F.2d 980, 987 (5th Cir. 1992)).

Daubert “provides the analytical framework for determining whether expert

testimony is admissible under Rule 702.” Pipitone v. Biomatrix, Inc., 288 F.3d 239,

243 (5th Cir. 2002). Both scientific and nonscientific expert testimony is subject to

the Daubert framework, which requires a trial court to make a preliminary

assessment to “determine whether the expert testimony is both reliable and

relevant.” Burleson v. Tex. Dep’t of Crim. Just., 393 F.3d 577, 584 (5th Cir. 2004); see

Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147 (1999).

A number of nonexclusive factors may be considered with respect to the

reliability inquiry, including: (1) whether the technique has been tested, (2) whether

the technique has been subjected to peer review and publication, (3) the technique’s

potential error rate, (4) the existence and maintenance of standards controlling the

technique’s operation, and (5) whether the technique is generally accepted in the

relevant scientific community. Burleson, 393 F.3d at 584. The reliability inquiry must

remain flexible, however, as “not every Daubert factor will be applicable in every

situation; and a court has discretion to consider other factors it deems relevant.” Guy

v. Crown Equip. Corp., 394 F.3d 320, 325 (5th Cir. 2004); see Runnels v. Tex.

Children’s Hosp. Select Plan, 167 F. App’x 377, 381 (5th Cir. 2006) (“[A] trial judge

has ‘considerable leeway’ in determining ‘how to test an expert’s reliability.’” (quoting

Kumho Tire, 526 U.S. at 152)). “Both the determination of reliability itself and the

factors taken into account are left to the discretion of the district court consistent

with its gatekeeping function under [Rule] 702.” Munoz v. Orr, 200 F.3d 291, 301 (5th

Cir. 2000).

As for determining relevancy, the proposed testimony must be relevant “not

simply in the way all testimony must be relevant [under Rules 401 and 402], but also

in the sense that the expert’s proposed opinion would assist the trier of fact to

understand or determine a fact in issue.” Bocanegra v. Vicmar Servs., Inc., 320 F.3d

581, 584 (5th Cir. 2003). “There is no more certain test for determining when experts

may be used than the common sense inquiry whether the untrained layman would be

qualified to determine intelligently and to the best degree the particular issue

without enlightenment from those having a specialized understanding of the subject

involved in the dispute.” Vogler v. Blackmore, 352 F.3d 150, 156 n.5 (5th Cir. 2003)

(quoting Fed. R. Evid. 702, Advisory Committee Note).

“[W]hen expert testimony is challenged under Rule 702 and Daubert, the

burden of proof rests with the party seeking to present the testimony.” Kennedy v.

Magnolia Marine Transp. Co., 189 F. Supp. 3d 610, 615 (E.D. La. 2016) (Africk, J.).

The Court applies a preponderance of the evidence standard when performing its

gatekeeping function under Daubert. See Daubert, 509 U.S. at 592 n.10. And the

Court is not bound by the rules of evidence—except those rules concerning

privileges—when doing so. See id.

III. ANALYSIS

a. Motion to Amend Expert Reports and Disclosures

In its motion to amend its expert reports and disclosures, Lighthouse seeks

leave to withdraw its previously disclosed expert, Susan Lewis (“Lewis”), and replace

her with C.J. Minor (“Minor”) and Kevin Hahn (“Hahn”).9 Lighthouse Ranch explains

that, after the parties attempted mediation, Minor and Hahn inspected the property

and provided an estimate of damages that was significantly lower than Lewis’.10

Lighthouse Ranch argues that SafePoint would not be prejudiced by the late

9 R. Doc. No. 54-1.

10 Id. at 2.

disclosure of these witnesses because “Safepoint has not yet taken depositions of any

Lighthouse witnesses and Safepoint was provided the reports of Mr. Minor and Mr.

Hahn on February 8, 2023.”11 Lighthouse Ranch further emphasizes that the

appraisal of the property, initiated by SafePoint, was not completed until after the

expert disclosure deadline had passed.12

Plaintiff’s deadline to provide expert reports and disclosures was November 10,

2022.13 Though Lighthouse Ranch acknowledges that its request to amend its expert

reports and disclosures is untimely, its motion does not discuss the standard

applicable to such a request. As previously stated, requests to modify a scheduling

order are governed by the Rule 16(b) “good cause” standard. Applying this standard

to the instant matter, the Court concludes that Lighthouse Ranch has not

demonstrated good cause.

The first factor arguably weighs in favor of Lighthouse Ranch’s request, as

expert testimony is no doubt important to its case. Harmon, 476 F. App’x at 36.

However, the second, third, and fourth factors weigh against granting the motion.

As to the second factor, Lighthouse Ranch’s explanation focuses on the fact

that the appraisal process was not completed until after the expert deadline had

passed. However, it is not clear why Lighthouse Ranch waited until completion of the

appraisal award to obtain a second opinion with respect to Lewis’ estimate.

Additionally, Lighthouse Ranch itself notes that the appraisal process was completed

11 Id. at 3.

12 Id.

13 R. Doc. No. 14, at 2.

on December 13, 2022, and that Minor and Hahn inspected the property on January

17, 2023, but the instant motion was not filed until March 3, 2023. Lighthouse Ranch

does not explain this delay.

As to the third factor, allowing Lighthouse Ranch to amend its expert witness

disclosures would be prejudicial to SafePoint because the deadline for filing motions

in limine with regard to expert testimony has passed.14 Id. SafePoint indicates that

it has identified grounds to challenge the testimony of Minor and Hahn, but it would

be unable to file the appropriate motions without an accompanying extension of the

relevant deadline.15

Finally, as to the fourth factor, the Court has already continued this matter in

an attempt to facilitate its resolution,16 and Lighthouse Ranch has not satisfied the

Court that a further continuance is warranted under the circumstances. Id. The

pretrial conference in this matter is less than a month away.17 As stated above,

Lighthouse Ranch’s explanation for the timing of the instant motion indicates

unwarranted delay. Therefore, granting a continuance at this stage “would result in

unnecessary delay and expense, and ‘a continuance would not deter future dilatory

behavior, nor serve to enforce . . . court[-]imposed scheduling orders.’” Thonn v. MLH

14 R. Doc. No. 35 (extending this deadline to February 8, 2023).

15 R. Doc. No. 56, at 5.

16 See R. Doc. No. 35.

17 See id.

Realty, LLC, No. 11–2123, 2012 WL 6482991, at *2 (E.D. La. Dec. 12, 2012) (Africk,

J.) (quoting Geiserman, 893 F.2d at 792).

Because Lighthouse Ranch has not shown that it has good cause to modify the

scheduling order, its motion to amend its expert reports and disclosures will be

denied. Having so concluded, the Court turns to SafePoint’s motion regarding

Lighthouse Ranch’s timely disclosed experts.

b. Motion in Limine

SafePoint argues that the opinions of Lewis and Henry LaBrie (“LaBrie”)

should be excluded. The Court addresses the arguments pertaining to Lewis and

Henry in turn.18

i. Lewis

Lewis is designated as an expert insurance adjuster who is expected to testify

as to the nature and cause of the damage to plaintiff’s property. SafePoint does not

challenge her qualifications, but rather argues that her opinions are irrelevant and

unreliable. The opinions offered in Lewis’ 606-page report are contained in just seven

sentences:

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.

18 Lighthouse Ranch requests permission to withdraw Lewis as an expert in its

motion for leave to amend its expert disclosures. However, the Court assumes that

Lighthouse Ranch would not withdraw Lewis unless it were allowed to replace her

with Hahn and Minor, its proposed new experts. Therefore, as the Court has denied

Lighthouse Ranch’s motion to amend its expert disclosures, it will address the merits

of SafePoint’s motion regarding Lewis.

After surveying the area for wind damages, evidence of tornadic activity was

discovered within the area.

The vibration and movement of the structure of home 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 Subcontractor 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 [sic].19

The remainder of the report consists of itemized estimates of the cost of repairs to the

property and photographs of the damage Lewis attributes to the storms. Lewis offers

no explanation to connect her opinions to the estimates and photographs.

This Court recently excluded identical opinions offered by Lewis in another

case. Wunstell v. Clear Blue Specialty Ins. Co., No. 22-975, 2022 WL 6113109, at *4

(E.D. La. Oct. 7, 2022) (Africk, J.). In Wunstell, the Court concluded that Lewis’

opinions as to causation were conclusory and lacked foundation, and that they

therefore failed to satisfy the requirements of Rule 26(a)(2)(B). Id. at *5.

Unlike in Wunstell, the parties in the instant matter disagree as to whether

Lewis was required to provide a written report under Rule 26(a)(2)(B), or whether

19 R. Doc. No. 43-1, at 1. In its motion, SafePoint produced an incorrect version of

Lewis’ report. R. Doc. No. 39-5. That report contains the same opinions provided

above, except that it references different storms. The Court notes that this is the

second time that SafePoint has produced an incorrect document in connection with a

motion in this matter. See R. Doc. No. 57 (this Court’s order and reasons noting that

SafePoint produced an inaccurate version of the appraisal provision in connection

with a motion to confirm the appraisal award and a motion for summary judgment).

Any future submissions by SafePoint should be accurate and not require the Court to

question their reliability. Sanctions may be appropriate for future transgressions.

she was merely required to provide the disclosures mandated by Rule 26(a)(2)(C).

Rule 26(a)(2)(B) states that a witness who is “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” must provide a written report containing

specific information. In contrast, pursuant to Rule 26(a)(2)(C), an expert who “is not

required to provide a written report” must provide only disclosures stating the subject

matter on which they plan to testify and “a summary of the facts and opinions” they

plan to offer.

Lighthouse Ranch argues that Lewis is required only to provide the Rule

26(a)(2)(C) disclosures because she “was hired by Lighthouse before counsel was

involved.”20 This fact appears to be undisputed.21 However, the fact that Lewis was

retained prior to counsel’s involvement does not establish that Lewis was not

“retained or specially employed to provide expert testimony” in this matter. Fed. R.

Evid. 26(a)(2)(B). Lighthouse Ranch does not further explain its arrangement with

Lewis, simply stating that she is “analogous to a treating physician” and that

disclosure pursuant to Rule 26(a)(2)(C) is therefore appropriate.22

“If parties who designate an expert do not disclose a report under Rule

26(a)(2)(B), they bear the burden of demonstrating that their designated expert is not

20 R. Doc. No. 43, at 4.

21 In a prior motion, SafePoint stated that “plaintiff retained Susan Lewis—not

counsel.” R. Doc. No. 40-1, at 8.

22 The Court notes that the purported disclosure offered by Lewis in this case is

substantially identical to that offered in Wunstell, wherein Lewis was undisputedly

offered as a retained expert pursuant to Rule 26(a)(2)(B).

one retained or specially employed to provide expert testimony in the case, and not

one whose duties as an employee of the party regularly involve giving expert

testimony.” Lee v. Valdez, No. 07-1298, 2008 WL 4287730, at *2 (N.D. Tex. Sept. 18,

2008) (quotation and citation omitted); accord Beechgrove Redev., LLC v. Carter &

Sons Plumbing, Heating, & Air Conditioning, Inc., No. 07-8446, 2009 WL 981724, at

*6 n.3 (E.D. La. Apr. 9, 2009) (Barbier, J.). Lighthouse Ranch has not made this

showing. Accordingly, the Court lacks a basis for concluding that Lewis is

appropriately designated as a non-retained expert pursuant to Rule 26(a)(2)(C). In

Wunstell, this Court concluded that Lewis’ report—which offered conclusions

identical to those offered here—failed to meet the standard articulated by Rule

16(a)(2)(B). 2022 WL 6113109, at *5. The same result appears mandated here.

Moreover, even assuming that Lewis is appropriately disclosed as a non-

retained expert pursuant to Rule 26(a)(2)(C), her opinions are still subject to the

requirements of Rule 702 and the standards of Daubert. Tajonera v. Black Elk Energy

Offshore Ops., No. 13-0366, 2016 WL 3180776, at *7 (E.D. La. June 7, 2016) (Brown,

J.) (“[A]lthough Daubert and its progeny often discuss specially retained experts, Rule

26(a)(2)(C) experts who provide expert opinions pursuant to Rule 702 may also be

challenged under Daubert.”); accord Higgins v. Koch Dev. Corp., 794 F.3d 697, 704

(7th Cir. 2015) (““Treating physicians [who offer disclosures pursuant to Rule

26(a)(2)(C)] are no different than any other expert for purposes of Rule 702; before

proffering expert testimony, they must withstand Daubert scrutiny like everyone

else.”); MGMTL LLC v. Strategic Tech., No. 20-2138, 2022 WL 474161, at *5 (E.D. La.

Feb. 16, 2022) (Vitter, J.) (“Regardless of whether a witness is proffered as a retained

expert or as a non-retained expert, the witness must still satisfy the requirements of

Daubert v. Merrell Dow Pharmaceuticals, Inc. and Fed. R. Evid. 702.” (footnotes

omitted)). Accordingly, “analysis regarding reliability under Daubert may differ when

assessing a Rule 26(a)(2)(B) expert compared to a Rule 26(a)(2)(C) expert only to the

extent that the Court will need to take into account the information that the expert

relied upon in coming to his or her conclusion, as a Rule 26(a)(2)(C) expert is confined

to testifying only to opinions that arise from his or her ground-level involvement in

the events giving rise to the litigation.” Tajonera, 2016 WL 3180776, at *7 (quotations

and citations omitted).

The Court finds that Lewis’ opinions fail to meet the reliability requirements

of Rule 702 and Daubert. As stated, Rule 702 requires that experts’ opinions be “based

on sufficient facts or data” and be “the product of reliable principles and methods,”

which are “reliably applied . . . to the facts of the case.” As in Wunstell, Lewis’s brief

and unclear statements provide little clue as to the basis of her opinions or her

methods. Curiously, Lighthouse Ranch makes little effort to meaningfully distinguish

the instant matter from Wunstell, focusing only on the argument that, here, Lewis is

allegedly offered as a non-retained expert pursuant to Rule 26(a)(2)(C). As discussed

above, the Court does not find that argument convincing. However, even assuming

that Lewis does not need to provide a full report, neither her disclosures in this matter

nor Lighthouse Ranch’s briefing provide a basis for concluding that her opinions are

based on sufficient facts or data, nor that they are the product of reliable principles

and methods reliably applied to the facts of the case. Fed. R. Evid. 702. Lewis’

opinions will therefore be excluded.23

ii. LaBrie

Lighthouse Ranch’s witness list states that LaBrie is a “building consultant”

who will testify “regarding his assistance with the inspection of the property.”24

LaBrie is not designated as an expert, and he did not offer an expert report or

disclosure pursuant to Rule 26. SafePoint argues that his testimony will be that of an

expert because “he participated in the previous mediation in this matter and offered

opinions as to the necessity of moisture readings in the subject buildings.”25 In

response, Lighthouse Ranch argues that LaBrie is not offered as an expert witness,

and that the Daubert motion is therefore unnecessary as pertains to him.26

Because both parties agree that LaBrie has not complied with the rules

governing expert testimony, the Court does not need to further address SafePoint’s

arguments regarding his testimony. LaBrie will be allowed to testify only as a fact

witness in this matter.

IV. CONCLUSION

For the foregoing reasons,

23 Having so concluded, the Court does not address the parties’ arguments regarding

the relevance of Lewis’ opinions.

24 R. Doc. No. 30, at 1.

25 R. Doc. No. 39-1, at 8.

26 R. Doc. No. 43, at 6.

IT IS ORDERED THAT Lighthouse Ranch’s motion to amend its expert

witness reports and disclosures is DENIED.

IT IS FURTHER ORDERED that SafePoint’s motion in limine to exclude the

expert testimony of Lewis and LaBrie is GRANTED. To the extent either Lewis or

LaBrie is a competent fact witness in this matter, their testimony will be permitted;

however, neither will be allowed to testify as to matters within the purview of Rule

702.

New Orleans, Louisiana, March 23, 20238.

AnA_

UNITED STATES TRICT JUDGE

14