Botos v. Hartford Insurance Company of the Midwest

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

MICHELLE BOTOS CIVIL ACTION

VERSUS

HARTFORD INSURANCE COMPANY NO. 17-00495-BAJ-SDJ

OF THE MIDWEST, ET AL.

THIS ORDER PERTAINS TO THE FOLLOWING CASES:

Norman Weary, et. al. v. Hartford Insurance Company of the Midwest, 3:17-cv-010738-BAd-SDd

Colleen Smith, et. al. v. Hartford Insurance Company of the Midwest, 3:17-cv-01074-BAJ-SDJ

Jerry Duane Mitchell, et. al. v. Hartford Insurance Company of the Midwest, 3:17-cv-01079-BAd-SDJ

Houston J. Hawkins v. Hartford Insurance Company of the Midwest, 3:17-cv-01080-BAJ-SDJ

Diego Martinez, et. al. v. Hartford Insurance Company of the Midwest, 3:17-cv-01082-BAJ-SDJ

Deven Pedeaux, et. al. v. Hartford Insurance Company of the Midwest, 3:17-cv-01084-BAd-SDJI

Jerry Burkhalter, et. al. v. Hartford Insurance Company of the Midwest, 3:17-cv-01086-BAJ-SDJ

Harold Smith, et. al. v. Hartford Insurance Company of the Midwest, 3:17-cv-01087-BAd-SDJ

Michael J. Mannino, et. al. v. Hartford Insurance Company of the Midwest, 3:17-cv-01110-BAJ-SDJ

Wayne Brecheen, et. al. v. Hartford Insurance Company of the Midwest, 3:17-cv-01353-BAd-SDJ

Kathleen Nguyen v. Hartford Underwriters Insurance Company, et al., 3:17-cv-013851-BAdJ-SDJ

RULING AND ORDER

Before the Court is Defendant Hartford Insurance Company of the Midwest’s

Motion To Exclude Plaintiffs’ Retained Expert, Tommy Tompkins, And

Request For Hearing. (Doc. 122). The Motion is unopposed. Defendant has filed a

Reply Memorandum. (Doc. 125). The Court has carefully considered the law, the facts

in the record, and the arguments and submissions of the parties. For the following

reasons, the Motion is DENIED.

I. Facts

Between August 13 and 15, 2016, the Baton Rouge area suffered extensive

rainfall resulting in widespread flooding (hereinafter “Flood”). Hundreds of lawsuits

were filed by the owners of homes damaged in the Flood against insurers pursuant

to the National Flood Insurance Act of 1968 (“NFIA”). Certain cases were

consolidated for discovery purposes because the Court determined the cases

presented common questions of law and fact. (Doc. 38; Doc. 40). In these cases,

Plaintiffs seek to recover amounts claimed to be owed for losses caused by the Flood.

Il. Legal Standard

Pursuant to Federal Rule of Evidence 702, “[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 the preconditions of the rule are met. Defendant’s

Motion is a Rule 702 challenge based on Tompkins’ lack of qualifications and a

Daubert challenge based on the lack of an adequate factual foundation and his failure

to use an accepted methodology. See Daubert v. Merrell Dow Pharm., Inc.,

509 U.S. 579 (1993). Defendant also questions whether Tompkins’ report meets the

requirements of Federal Rule of Civil Procedure 26(a)(2)(B).

When Daubert is invoked, a district court may, but is not required to, hold a

hearing at which the proffered opinion may be challenged. Carlson v.

Bioremedi Therapeutic Sys., Inc., 822 F.3d 194, 201 (5th Cir. 2016). When no hearing

is held, however, “a district court must still perform its gatekeeping function by

performing some type of Daubert inquiry.” Id. “At a minimum, a district court must

create a record of its Daubert inquiry and ‘articulate its basis for admitting expert

testimony.” Id. (quoting Rodriguez v. Riddell Sports, Inc., 242 F.8d 567, 581

(5th Cir. 2001)).

The role of the trial court is to serve as the gatekeeper for expert testimony by

making the determination of whether the expert opinion is sufficiently reliable. As

the United States Court of Appeals for the Fifth Circuit has held:

[When expert testimony is offered, the trial judge must perform a

screening function to ensure that the expert’s opinion is reliable and

relevant to the facts at issue in the case. Daubert went on to make

“general observations” intended to guide a district court’s evaluation of

scientific evidence. The nonexclusive list includes “whether [a theory or

technique] can be (and has been) tested,” whether it “has been subjected

to peer review and publication,” the “known or potential rate of error,”

and the “existence and maintenance of standards controlling the

technique's operation,” as well as “general acceptance.” The [Supreme]

Court summarized:

The inquiry envisioned by Rule 702 is, we emphasize, a flexible one. Its

overarching subject is the scientific validity and thus the evidentiary

relevance and reliability—of the principles that underlie a proposed

submission. The focus, of course, must be solely on principles and

methodology, not on the conclusions that they generate.

Watkins v. Telsmith, Inc., 121 F.3d 984, 988-89 (5th Cir. 1997) Ginternal citations

omitted).

The Supreme Court too has recognized that not all expert opinion testimony

can be measured by the same exact standard. Rather, the Daubert analysis is a

“flexible” one, and “the factors identified in Daubert may or may not be pertinent in

assessing reliability, depending on the nature of the issue, the expert’s particular

expertise, and the subject of his testimony.” Kumho Tire Co. v. Carmichael,

526 U.S. 137, 150 (cited with approval in Pipitone v. Biomatrix, Inc.,

288 F.3d 239, 244 (5th Cir. 2002)). Cases following Daubert have expanded on these

factors and explained that Dawber?'s listing is neither all-encompassing nor is every

factor required in every case. See, e.g., Gen, Elec. Co. v. Joiner, 522 U.S. 136, 142

(1997); Guy v. Crown Equip. Corp., 394 F.3d 320, 325 (5th Cir. 2004). Indeed, courts

may look to other factors. Joiner, 522 U.S. at 146.

As this Court has explained:

The admissibility of expert testimony is governed by Federal Rule of

Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Ine., which

provide that the court serves as a gatekeeper, ensuring all scientific

testimony is relevant and reliable. This gatekeeping role extends to all

expert testimony, whether scientific or not. Under Rule 702, the court

must consider three primary requirements in determining the

admissibility of expert testimony: 1) qualifications of the expert witness;

2) relevance of the testimony; and 3) reliability of the principles and

methodology upon which the testimony is based.

Fayard vu. Tire Kingdom, Inc, No. 09-171, 2010 WL 38999011, at *1

(M.D. La. Oct. 12, 2010) Gnternal citations omitted) (citing Kumho Tire Co.,

526 U.S. at 147).

This Court has broad discretion in deciding whether to admit expert opinion

testimony. See, e.g., Joiner, 522 U.S. at 138-89 (appellate courts review a trial court’s

decision to admit or exclude expert testimony under Daubert under the abuse of

discretion standard); Watkins, 121 F.3d at 988 (“District courts enjoy wide latitude in

determining the admissibility of expert testimony.”); Hidden Oaks Lid. v.

City of Austin, 138 F.3d 1036, 1050 (5th Cir. 1998) (“Trial courts have ‘wide discretion’

in deciding whether or not a particular witness qualifies as an expert under the

Federal Rules of Evidence.”).

“Notwithstanding Daubert, the Court remains cognizant that ‘the rejection of

expert testimony is the exception and not the rule.” Johnson v.

Samsung EHlecs. Am., Inc., 277 F.R.D. 161, 165 (E.D. La. 2011) (iting

Fed. R. Evid. 702 advisory committce’s note to 2000 amendments). Further, as

explained in Scordill v. Louisville Ladder Grp., L.L.C.:

The Court notes that its role as a gatekeeper does not replace the

traditional adversary system and the place of the jury within the system.

As the Daubert Court noted, “[vligorous cross-examination, presentation

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

the traditional and appropriate means of attacking shaky but

admissible evidence.” The Fifth Circuit has added that, in determining

the admissibility of expert testimony, a district court must defer to “the

jury's role as the proper arbiter of disputes between conflicting opinions.

As a general rule, questions relating to the bases and sources of an

expert’s opinion affect the weight to be assigned that opinion rather than

its admissibility and should be left for the jury’s consideration.”

No, 02-2565, 2003 WL 22427981 at *8 (Z.D. La. Oct. 24, 2003) (Vance, J.) Gnternal

citations omitted) (relying on, among others, Rock v. Arkansas, 483 U.S, 44, 61 (1987),

and United States v. 14.38 Acres of Land, More or Less Sit. In Leflore County, Miss.,

80 F.3d 1074, 1077 (5th Cir. 1996)).

“As one Court of Appeals has stated, trial judges are gatekeepers, not armed

guards.” 29 Charles Alan Wright & Arthur R. Miller,

Federal Practice and Procedure § 6268.2 (2d ed. 1987) (citing Rutz-Troche v.

Cola of Puerto Rico Bottling Co., 161 F.3d 77, 86 (ist Cir. 1998)); see also

Guild v. Gen. Motors Corp., 53 F. Supp. 2d 363 (W.D.N_Y. 1999) (“[T]rial judges acting

as gatekeepers under [Daubert] must not assume ‘the role of St. Peter at the gates of

heaven, performing a searching inquiry into the depth of an expert witness's soul’ and

thereby usurp ‘the ageless role of the jury’ in evaluating witness credibility and

weight of the evidence.”) (quoting McCullock v. H.B. Fuller Co.,

61 F.3d 1038, 1045 (2d Cir. 1995)).

As the Court in General Electric Capital Business Asset Funding corp. v.

SASH. Military Ltd., stated, “Experts should be excluded only if their testimony is

so fundamentally unsupported that it cannot possibly help the factfinder.”

No. SA-03-CA-189-RF, 2004 WL 5495590, at *5 (W_D. Tex. Oct. 21, 2004 (citing

Viterbo v. Dow Chemical Co., 826 F.2d 420, 422 (5th Cir. 1987)); see also

Trinity Med. Servs., L.L.C. v. Merge Healthcare Sols, Inc., No. 17-592,

2020 WL 1309892, at *7 (M.D. La. Mar. 19, 2020) (deGravelles, J.).

For purposes of the Daubert analysis here, it is also important to note that

these cases will be tried to the Court, not a jury. “[S]ince Rule 702 is aimed at

protecting jurors from evidence that is unreliable for reasons they may have difficulty

understanding, in a bench trial there is greater discretion regarding procedure and

even the stringency of gatekeeping.” 29 Victor J. Gold, Federal Practice & Procedure

§ 6270 (2d ed. 2020).

In a bench trial, the principal reason for the Court's gatekeeping

function is not implicated, namely to guard against jury confusion which

may result from irrelevant and/or unreliable expert opinion testimony.

The purpose of the Court's gatekeeping function required by Daubert is

to ensure that only reliable and relevant expert testimony is presented

to the jury. Most of the safeguards provided for in Daubert are not as

essential in a case such as this where a district judge sits as the trier of

fact in place of a jury.

Hunters Run Gun Club, LEC v. Baker, No. 17-176, 2019 WL 2516876, at *1

(M.D. La. June 18, 2019) (Dick, J) (citations and quotations omitted); see also

Nassri v. Inland Dredging Co., No. 11-858, 2013 WL 256747, at *1

(M.D. La. Jan. 23, 2013).

Stated another way, “[t]here is less need for the gatekeeper to keep the gate

when the gatekeeper is keeping the gate only for himself.” United States v. Brown,

415 F.3d 1257, 1269 (11th Cir. 2005); see also Gibbs v. Gibbs, 210 F.3d 491, 500

(5th Cir. 2000) (“Most of the safeguards provided for in Daubert are not as essential

in a case such as this where a district judge sits as the trier of fact in place of a jury.”)

III. Discussion

Defendant moves to exclude Plaintiffs’ designated expert, Tommy Tompkins,

from testifymg. (Doc. 122, p. 2). In a similar case arising out of the Flood,

Judge deGravelles issued a Ruling regarding an insurer’s nearly identical motion to

exclude plaintiffs’ expert, Tompkins. (No. 17-CV-01094-JWD-EWD, Doc. 117;

Doc. 125). Because Judge deGravelles fully addressed each argument Defendant

raises here, the Court adopts Judge deGravelles’ reasoning herein.

(No. 17-CV-01094-JWD-EWD, Doc. 125).

First, Defendant argues that Tompkins lacks the requisite experience to assist

the trier of fact as to damages, causation, the status of repairs, and the actual costs

of repairs.! (Doc. 122-1, p. 2). Judge deGravelles concluded that Tompkins is

sufficiently qualified to testify as a flood claims adjuster because he has 19 years of

experience as an insurance adjuster of residential property for various types of losses,

including flood, wind, hail, and hurricane damages. (No. 17-CV-01094-JWD-EWD,

Doc. 125, p. 17-18). Tompkins has “handled more than 1,500 insurance claims as an

inside desk adjuster, and 2,500 claims as an adjuster in the field.” Ud. at p. 18). The

1 Judge deGravelles addressed the argument that Tompkins “lacks the requisite expertise to

assist the trier of fact as to damages, the causation of damages, as well as repairs.”

(No. 17-CV-01094-JWD-EWD, Doc. 125, p. 5 (addressing Tompkins’ qualifications)).

“fact that he has no hands-on experience in repairing homes or doing general

contracting, plumbing or electrical work does not disqualify him.” (/d.). Rather, the

Court will “leave to the [finder of fact] the extent of those qualifications.”

(Id. at p. 17).

Second, Defendant argues that Tompkins’ 400 reports are virtually the same,

and consist of boilerplate, generalized, formulaic statements and opinions regarding

purported errors or deficiencies in the original adjuster’s estimate, which Tompkins

admits do not apply to the specific case for which the report was generated.2

(Doc. 122-1, p. 4). Judge deGravelles determined that while “[iJt is true that

Tompkins’ failure to personally inspect each of the 400 or so properties involved

represents data presumably available to him which he did not consider,” “this goes to

the weight, not admissibility of his testimony.” (17-CV-01094-JWD-EWD,

Doc. 125, p. 28). Judge deGravelles recognized inconsistencies between Tompkins’

reports, deposition testimony, and affidavit, but found that these inconsistencies are

not grounds for excluding the testimony altogether. (id. at p. 25). Rather, the

inconsistencies will “undoubtedly be the subject of vigorous cross examination at trial

and may well have an impact on the credibility of this witness and the weight to be

given to his evidence.” Ud. at p. 24-25).

2 Judge deGravelles addressed the argument that “Tompkins issued some 400 reports which

are ‘virtually the same, and consist[ ] of boilerplate, generalized, formulaic statements and

opinions regarding purported errors or deficiencies in the original adjuster’s estimate which

({Tompkins] admits) do not apply to the specific case for which the report was generated.”

(No, 17-CV-01094-JWD-EWD, Doc. 125, p. 5 (addressing the sufficiency of foundation for

Tompkins’ opinions)).

Third, Defendant argues that Tompkins’ proposed testimony is not the product

of reliable principles or methods, and as demonstrated by his cookie-cutter reports,

Tompkins has not reliably applied any principles or methods to the facts of any one

case.? (Doc. 122-1, p. 5). Judge deGravelles found that the alleged “cookie-cutter

styled reports” including “boilerplate language” constitutes a matter of weight rather

than admissibility and may be explored by Defendant on cross-examination.,

(17-CV-01094-JWD-EWD, Doc. 125, p. 32).

Fourth, Defendant argues that Tompkins’ expert reports are woefully

incomplete and fall short of the mandatory disclosure requirements prescribed by

Federal Rule of Civil Procedure 26(a)(2)(B) because his reports do not quantify the

value of the alleged damages Plaintiff seeks in each individual case.4

(Doc, 122-1, p. 3, 5). Judge deGravelles stated: “Tompkins’ affidavit explains that each

paragraph in a given report, although identical in language to that in other reports,

applies to that specific property.” (17-CV-01094-JWD-EWD, Doc. 125, p. 33). The

reports are “sufficiently complete and clear to give adequate notice to [the insurer]

regarding [Tompkins’] opinions as to a given property, the facts and data upon which

he relied, along with his qualifications, prior testimony and compensation.”

3 Judge deGravelles addressed the following argument: “Because Tompkins has submitted

cookie-cutter styled reports, including boilerplate language that may or may not apply to a

given property, there is no evidence that he has reliably applied the principles and methods

to the facts of each individual case.” (No. 17-CV-01094-JWD-EWD, Doc. 125, p. 7 (addressing

Tompkins’ methodology)).

4 Judge deGravelles addressed the following argument: “Because the report does not comply

with the completeness requirement of Rule 26(a)(2)(B)@, Tompkins should not be permitted

to testify.” (No. 17-CV-01094-JWD-EWD, Doc. 125, p. 7 (addressing the requirements of

Rule 26(a)(2)(B)).

Gd. (citing Nkansah v. Martinez, No. 15-646, 2017 WL 2812733, at *8

(M.D. La. June 28, 2017) “While the report is bare bones, to say the least, especially

when viewed together with her deposition and supplemental affidavit, the opinions

in the report can be ascertained.”); Am. Gen. Life Ins. Co. v. Russell, No. 16-861,

2019 WL 4411819, at *5 (M.D. La. Sept. 16, 2019) (“When the report is combined with

the deposition, it is clear that sufficient information has been provided regarding

Bacon's opinions, data relied upon and reasons supporting it.”)). Ultimately,

Judge deGravelles concluded that:

While inconsistencies between his deposition testimony and his affidavit

are apparent and raise issues of credibility and competence, these are

matters which go to the weight of his testimony and can be developed

during his trial testimony, both on direct and cross examination. This is

especially true given the fact that the trial of this matter will be to the

bench.

(17-CV-01094-JWD-EWD, Doc. 125, p. 33).

While there are concerns regarding certain aspects of Tompkins’ testimony, in

the context of a bench trial, “the trial judge is in a unique position to hear the evidence

and decide whether to disregard it altogether or to just consider the criticisms of the

testimony as relevant to the weight the evidence is ultimately given.” Schmidt v.

United States, No. A-18-CV-00088-DAE, 2019 WL 2090695, at □□□

(W.D. ‘Tex. May 10, 2019). Accordingly, and for the reasons previously addressed by

Judge deGravelles in response to the insurer’s virtually identical arguments,

Defendant’s Motion is denied. (No. 17-CV-01094-JWD-EWD, Doc. 125),

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IV. Conclusion

Accordingly,

IT IS ORDERED that Defendant Hartford Insurance Company of the

Midwest's Motion To Exclude Plaintiffs’ Retained Expert, Tommy Tompkins,

And Request For Hearing (Doc. 122) is DENIED.

Derk

Baton Rouge, Louisiana, this ~ — day of March, 2021

□□

Qi ~~

JUDGE BRIAN A. JACKSON

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

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