The opinion
IN THE UNITED STATES DISTRICT COURT December 24, 2020
FOR THE SOUTHERN DISTRICT OF TEXAS David J. Bradley, Clerk
HOUSTON DIVISION
CARAMBA, INC. d/b/a Pueblo Viejo, §
Plaintiff, §
§
v. § CIVIL ACTION NO. H-19-1973
§
NATIONWIDE MUTUAL FIRE §
INSURANCE COMPANY, §
Defendant. §
MEMORANDUM AND ORDER
There are four expert-related motions pending before the Court in this insurance
coverage dispute. First, there is the Motion to Strike the Opinions and Testimony of
Neil Hall (“Hall Motion”) [Doc. # 22] filed by Defendant Nationwide Mutual Fire
Insurance Company (“Nationwide”). Plaintiff Caramba, Inc. d/b/a Pueblo Viejo
(“Caramba”) filed a Response [Doc. # 30], and Nationwide filed a Reply [Doc. # 35].1
Also pending is Nationwide’s Motion to Strike the Opinion and Testimony of
Kevin Funsch (“Funsch Motion”) [Doc. # 23], to which Caramba filed a Response
[Doc. # 32], and Nationwide filed a Reply [Doc. # 36]. Finally, Nationwide filed a
Motion to Strike the Opinions and Testimony of Gary Johnson (“Johnson Motion”)
1 Nationwide also filed a Motion to Strike the Untimely Supplemental Report and
Declaration of Neil Hall [Doc. # 38], to which Caramba filed a Response [Doc. # 43],
and Nationwide filed a Reply [Doc. # 45].
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[Doc. # 24], to which Caramba filed a Response [Doc. # 31], and Nationwide filed a
Reply [Doc. # 34].
The Court has carefully reviewed the record in this case, including the experts’
reports and deposition testimony. Based on that review and the application of relevant
legal authorities, the Court denies the Hall Motion and the Funsch Motion, and grants
the Johnson Motion.
I. BACKGROUND
Caramba is the named insured under a Nationwide “Premier Businessowners
Policy,” No. ACP BPFF 5545868791 (the “Policy”). The Policy provided coverage
for Caramba’s commercial property, a restaurant in Porter, Texas (the “Property”), for
the period October 27, 2016 to October 27, 2017.
Caramba claims the Property sustained wind damage, and resulting water
damage, in August 2017 from Hurricane Harvey. Caramba’s roofing contractor,
Alejandro Gonzalez of Champion Renovation Roofing (“Champion”), inspected the
Property in early September 2017, after Hurricane Harvey. In June 2018, Champion
applied a black asphalt coating to the metal roof at the Property, made temporary
repairs to the tile roof, and repaired some interior damage. Caramba filed its claim
under the Policy on June 26, 2018.
2
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The next day, Nationwide’s adjuster, Cheri McGinnis, contacted Caramba’s
principal, Alejandro Lozano, to discuss the claim. McGinnis requested additional
information, and she inspected the Property on July 9, 2018.
On July 13, 2018, McGinnis engaged Stephens Engineering (“Stephens”) to
investigate the extent and cause of the damage to the Property. On July 27, 2018, a
Stephens representative inspected the Property, and Stephens issued its report
(“Stephens Report”) [Doc. # 22-4] on August 10, 2018.
On August 17, 2018, Nationwide denied Caramba’s claim. Caramba retained
counsel and submitted additional information, including a damage estimate from
DELK, LLC (“DELK”). On February 9, 2019, Nationwide reaffirmed its denial of
Caramba’s claim.
On April 17, 2019, Caramba filed this lawsuit in the 410th Judicial District
Court of Montgomery County, Texas. Nationwide filed a timely Notice of Removal
[Doc. # 1] on May 31, 2019.
On February 14, 2020, Caramba filed its Designation of Expert Witnesses [Doc.
# 20]. Caramba designated Dr. Neil Hall as its causation expert and attached his
report (“Hall Report”) [Doc. # 20-1]. Caramba designated Kevin Funsch as its
damages expert and attached his report (“Funsch Report”) [Doc. # 20-2]. Caramba
designated Gary Johnson as its expert on claims processing, and it attached his report
3
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(“Johnson Report”) [Doc. # 20-3].2 On August 28, 2020, Nationwide filed the
pending motions to strike the opinions and testimony of these three designated expert
witnesses.3 The motions have been fully briefed and are now ripe for decision.
II. APPLICABLE STANDARD FOR EXPERT OPINIONS
Witnesses who are qualified by “knowledge, skill, experience, training or
education” may present opinion testimony to the jury. FED. R. EVID. 702; see, e.g.,
Whole Woman’s Health v. Hellerstedt, __ U.S. __, 136 S. Ct. 2292, 2316 (2016);
Moore v. Ashland Chem., Inc., 151 F.3d 269, 276 (5th Cir. 1998) (en banc); Huss v.
Gayden, 571 F.3d 442, 452 (5th Cir. 2009). “Rule 702 does not mandate that an
expert be highly qualified in order to testify about a given issue.” Williams v.
Manitowoc Cranes, L.L.C., 898 F.3d 607, 623 (5th Cir. 2018). “This is because
‘[d]ifferences in expertise bear chiefly on the weight to be assigned to the testimony
by the trier of fact, not its admissibility.’” Id. at 623-24 (quoting Huss, 571 F.3d at
452). Nationwide does not challenge the qualifications of Hall, Funsch, or Johnson.
To be admissible, an expert’s proffered testimony must be both relevant and
reliable. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 591-92 (1993);
2 Caramba also designated William Featherston as its expert on attorneys’ fees.
Nationwide has not moved to strike Featherston’s opinions.
3 Nationwide also filed a Motion for Summary Judgment [Doc. # 25] which will be
addressed separately.
4
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Carlson v. Bioremedi Therapeutic Sys., Inc., 822 F.3d 194, 199 (5th Cir. 2016). The
expert testimony must be relevant and the expert’s proposed opinion must be one that
would assist the trier of fact to understand or decide a fact in issue. See Weiser-Brown
Operating Co. v. St. Paul Surplus Lines Ins. Co., 801 F.3d 512, 529 (5th Cir. 2015);
Bocanegra v. Vicar Servs., Inc., 320 F.3d 581, 584 (5th Cir. 2003) (citing Daubert,
509 U.S. at 591-92).
To satisfy the “reliability” prong, a “party seeking to introduce expert testimony
must show (1) the testimony is based upon sufficient facts or data, (2) the testimony
is the product of reliable principles and methods, and (3) the witness has applied the
principles and methods reliably to the facts of the case.” Huss, 571 F.3d at 452 (citing
Smith v. Goodyear Tire & Rubber Co., 495 F.3d 224, 227 (5th Cir. 2007)); see also
Carlson, 822 F.3d at 199. “Reliability” requires that the proponent of the expert
testimony must present some objective, independent validation of the expert’s
methodology. See Brown v. Illinois Cent. R. Co., 705 F.3d 531, 536 (5th Cir. 2013).
The objective of the Court’s gatekeeping role is to ensure that an expert “employs in
the courtroom the same level of intellectual rigor that characterizes the practice of an
expert in the relevant field.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152
(1999); Certain Underwriters at Lloyd’s, London v. Axon Pressure Prod. Inc., 951
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F.3d 248, 269 (5th Cir. 2020); Hodges v. Mack Trucks Inc., 474 F.3d 188, 194 (5th
Cir. 2006).
Courts often consider various factors in determining the reliability of proffered
scientific evidence, including: (1) whether the theory or procedure has been subjected
to testing; (2) whether it has been subjected to peer review and publication; (3) the rate
of error and the existence of standards controlling the theory or procedure; and
(4) whether it has attained general acceptance. See Daubert, 509 U.S. at 593-94.
These factors can “help to evaluate the reliability even of experienced-based
testimony.” Kumho Tire, 526 U.S. at 151. “In certain cases, it will be appropriate for
the trial judge to ask, for example, how often an engineering expert’s
experience-based methodology has produced erroneous results, or whether such a
method is generally accepted in the relevant engineering community.” Id.
The Court is not required to “admit opinion evidence that is connected to
existing data only by the ipse dixit of the expert.” Kumho Tire, 526 U.S. at 157;
Burleson v. Tex. Dept. of Crim. Justice, 393 F.3d 577, 587 (5th Cir. 2004); Chan v.
Coggins, 294 F. App’x 934, 939 (5th Cir. Oct. 2, 2008). Where the challenged
opinion “is fundamentally unsupported, then it offers no expert assistance to the jury.”
Guile v. United States, 422 F.3d 221, 227 (5th Cir. 2005) (quoting Viterbo v. Dow
Chem. Co., 826 F.2d 420, 422 (5th Cir. 1987)). In such cases, there is “simply too
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great an analytical gap between the data and the opinion proffered.” Chambers v.
Exxon Corp., 247 F.3d 240, *2 (5th Cir. Jan. 5, 2001) (quoting Gen. Elec. Co. v.
Joiner, 422 U.S. 136, 146 (1997)). “A claim cannot stand or fall on the mere ipse
dixit of a credentialed witness.” McManaway v. KBR, Inc., 852 F.3d 444, 449 (5th
Cir. 2017).
The Court’s gatekeeping role is no substitute, however, for the adversarial
process. See Pipitone v. Biomatrix, Inc., 288 F.3d 239, 250 (5th Cir. 2002).
“Vigorous 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.” Daubert, 509 U.S. at 596; MM Steel, L.P.
v. JSW Steel (USA) Inc., 806 F.3d 835, 852 (5th Cir. 2015).
III. HALL MOTION
Dr. Neil Hall is Caramba’s causation expert. In his report, Hall described
relevant weather data, particularly Hurricane Harvey’s 37 mph sustained wind speed
and 48 mph gust speed. See Hall Report, p. 2. He described the conditions he
observed during his inspection of the Property on December 11, 2019. See id. at 3-4.
He stated his recommendations for repairing or replacing those areas of the Property
damaged by the hurricane, and he identified those areas that were not damaged. See
id. at 4-5.
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Nationwide asserts that Hall’s opinions and testimony should be excluded
because he “utilized no discernible methodology.” See Hall Motion, p. 3. This
assertion is not supported by the record. Hall used a “discernible” and widely-
accepted methodology. Indeed, he used the same methodology used by other
engineers in this case. He physically inspected the Property to the extent possible, he
interviewed individuals who claimed to have relevant knowledge, he took
photographs and measurements, he examined photographs of the Property from before
and after Hurricane Harvey, and he studied weather data for the Property. Based on
this methodology, and his review of the engineering report prepared for Nationwide,
he formulated his opinions and prepared his Report. The methodology is reliable.
The accuracy of the opinions Hall reached by using an accepted methodology are
subject to cross-examination at trial.
Nationwide’s primary criticism of Hall’s methodology is that he relied on
information from Caramba’s roofing contractor, Alejandro Gonzalez. Although
Gonzalez was present at the Property when Hall conducted his inspection, Hall
conducted his own independent inspection and his own investigation. Hall testified
that when he walked with Gonzalez through the interior of the Property, Gonzalez
identified areas where he saw leaks shortly after Hurricane Harvey. See Hall Depo.,
Exh. B to Response [Doc. # 30], p. 25. Rather than rely exclusively on Gonzalez’s
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identification of areas with water damage, Hall independently looked for areas that
Gonzalez missed. See id. Gonzalez, who was representing the Property owner at the
time of Hall’s inspection, claimed that there had not been damage to the roof at the
Property before Hurricane Harvey. See id. at 26. There was no evidence to the
contrary, and Hall had no reason to disbelieve information provided by the Property
owner’s representative. Indeed, Hall’s investigation supported the absence of prior
repairs to the roof. Hall testified that sometimes there is a difference in the color of
the asphalt on the roof if there have been prior repairs, but he did not observe that at
the Property. See id. at 35. The record does not support Nationwide’s argument that
Hall’s methodology was flawed, requiring that his opinions be excluded, because he
“blindly accepted information” Gonzalez provided.
Nationwide argues that Hall’s opinions and testimony are inadmissible because
he “failed to segregate covered and non-covered damages at the Property.” See Hall
Motion, p. 3. As noted above, Hall in his Report segregated the areas that he
concluded were damaged during Hurricane Harvey from those areas that he believed
were not damaged by the hurricane. In his deposition, Hall explained that his practice
is to photograph all damage and include it in the Report. See Hall Depo., p. 31. In
this case, he included in his Report all the damage he observed, but his
recommendations are “specifically tied back to the storm damage.” See id. at 31-32.
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Nationwide cites to Hall’s deposition testimony regarding acknowledging that
the Stephens Report identified “a potential leak in the HVAC at one of the HVAC
lines,” and agreeing it was “possible that one of those leaks caused any of the interior
damage inside the property, below the insulation.” See id. at 27. Hall explained,
however, that “even if it turned out” that Stephens was correct about a potential leak
in the HVAC lines, it would be “a minimal percent of damage compared to the total
amount of damage that [he] saw, and the overwhelming and exclusive causation
would have been through the roof deck.” See id. at 27-28. Although Hall recognized
the comments in the Stephens Report regarding a “potential” leak and agreed it was
“possible” an HVAC leak caused some minimal interior damage, he expressed clearly
his opinion that “the overwhelming and exclusive causation” of the interior damage
would have been from the roof. Given Hall’s opinion, there was no requirement that
Hall segregate out the “possible” damage caused by a “potential” leak in the HVAC
system. His failure to do so is not a basis to exclude his opinions and testimony.
Nationwide has moved to strike Hall’s Supplemental Report [Doc. # 33-5]
dated September 26, 2020, and his Declaration [Doc. # 33-3], dated October 1, 2020,
as untimely. The deadline for Rebuttal Opinions was March 30, 2020. See Docket
Control Order [Doc. # 12]. On October 2, 2020, Caramba attached the Supplemental
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Report and Declaration to their Response [Doc. # 33] to Nationwide’s Motion for
Summary Judgment.
In support of its Motion for Summary Judgment, Nationwide relied in part on
Hall’s deposition testimony and a Declaration from Nationwide’s expert, Eric Moody,
dated August 26, 2020. In his Declaration, Moody focuses on a “Wind Verification
Report” issued by CoreLogic (“CoreLogic Report”). See Moody Declaration [Doc.
# 25-8], ¶¶ 6-7. In his Declaration, Hall criticizes the CoreLogic Report, noting
specifically that the weather data collected by the National Weather Service “does not
substantiate the wind speeds” reported by CoreLogic. See Hall Declaration, ¶ 6.
In his September 26, 2020 Supplemental Report, Hall expressed his belief that
Nationwide cited his deposition testimony out of context, and he explained and quoted
his actual deposition testimony. See Hall Supplemental Report, pp. 2-3. Hall also
addressed the problems with the CoreLogic Report. See id. at 3-6. The Hall
Supplemental Report and Declaration address issues raised by Nationwide’s
characterization of Hall’s deposition testimony included in the Motion for Summary
Judgment filed August 28, 2020, and address the CoreLogic Report that was the focus
of the Moody Declaration dated August 26, 2020. Therefore, to the extent leave of
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Court is required for Hall’s Supplemental Report and Declaration, it is granted.4 The
Motion to Strike is denied.
IV. FUNSCH MOTION
Caramba designated Kevin Funsch as its damages expert. Based on Hall’s
causation opinions and his own inspection of the Property, Funsch prepared a Report
(“Funsch Report”) [Doc. # 20-2]. Funsch calculated the total repair cost for the
damage to the Property at $190,088.93. See Funsch Report, p. 14. Nationwide argues
that Funsch’s opinion should be excluded because it is based on Hall’s inadmissible
opinions, because he committed “numerous errors,” and because he testifies almost
exclusively on behalf of insureds represented by Caramba’s attorneys.
As explained above, Nationwide’s assertion that Hall’s opinions should be
excluded is unsupported by the record. Because Hall’s opinions are based on reliable
methodology, Funsch’s reliance on those opinions is not a basis to exclude Funsch’s
opinion on damages. It is standard practice to have separate causation and damages
experts, and to have the damages expert rely on causation opinions from the separate
expert. Indeed, in this case, Nationwide has retained a separate damages expert,
4 “A schedule may be modified only for good cause and with the judge’s consent.”
FED. R. CIV. P. 16(b)(4). “If a party fails to provide information [required by the
Federal Rules], the party is not allowed to use that information or witness to supply
evidence . . . unless the failure was substantially justified or is harmless.” FED. R.
CIV. P. 37(c)(1). The Court finds good cause and substantial justification, and grants
consent for Caramba to file Hall’s Supplemental Report and Declaration.
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Randall Taylor. As is the standard practice, the causation expert, usually an engineer,
identifies the damage caused by the allegedly covered event. The damages expert,
who is usually not an engineer, must rely on the causation expert to identify the
damage caused by the event covered by the insurance policy. The Court rejects
Nationwide’s challenge to Funsch’s opinion based on his reliance on Hall’s causation
opinions.
Nationwide argues also that Funsch made numerous errors. Nationwide notes,
for example, that Funsch’s calculation of repair cost included repairs to the rear dining
room and the second story office, even though parts of those areas were not damaged.
Funsch testified in his deposition that the undamaged area shared a continuous ceiling
with an area that was damaged. See Funsch Depo., Exh. C to Response [Doc. # 32],
p. 68. In situations involving continuous ceilings, it is necessary to perform some
work, such as painting or staining, in some undamaged areas. See id. Nationwide’s
damages expert, Randall Taylor, agreed. In his deposition, Taylor testified that it was
reasonable and a common methodology to calculate the cost for painting the entire
ceiling if one part of that ceiling needed repair. See Taylor Depo., Exh. 4 to Response
[Doc. # 32], pp. 99-100. Any challenge to the inclusion of the cost of work on
undamaged areas of the Property can be raised through cross-examination at trial.
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Nationwide argues that Funsch’s opinion should be excluded because he used
the wrong type of tile in his calculation. There is a disagreement in the record
regarding whether “S tiles” and “barrel tiles” are different tiles or, instead, are
different names for the same tiles. It is unclear from the record at this stage whether
the “barrel tiles” included in Funsch’s opinion were the same as or different from “S
tiles.” If Nationwide disagrees with Funsch’s calculation, on this tiles issue or any
other matter, it can address those issues during cross-examination at trial. There is
nothing, however, to support a ruling that Funsch’s opinion is inadmissible under
Rule 702 and Daubert.
Nationwide asks the Court to exclude Funsch’s opinion in this case also because
Funsch testifies almost exclusively for Caramba’s attorneys. Nationwide has not
presented evidence that establishes, or even suggests, Funsch has an actual bias or
used a flawed methodology because he is often employed by Caramba’s attorneys.
It is not uncommon for lawyers to have experts they trust and are comfortable working
with. Indeed, Eric Moody, Nationwide’s causation expert, has worked with
Nationwide’s lawyers in 30-50 cases. See Moody Depo., Exh. E to Response [Doc.
# 32], p. 92. There is the perception that insurance companies often prefer not to hire
experts who have worked for insureds. For example, Neil Hall testified that, prior to
Hurricane Katrina, approximately 95% of his work was on behalf of the insurer. After
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Hurricane Katrina, however, he began to work for insureds and “the work didn’t come
in from [the] defense.” See Hall Depo., p. 125. Evidence that insureds, and not
insurers, choose to retain Funsch as an expert is not evidence of flawed methodology
or actual bias. In any event, Nationwide may explore the amount of work Funsch does
for insureds on cross-examination at trial, if it chooses.
Nationwide argues that Funsch is biased because he is “social friends with
employees of [Chad] Wilson’s firm. See Funsch Motion, p. 11. Funsch testified in
his deposition that he races sailboats with a man named Ken Horn, who does not
appear to be an employee of Wilson’s firm. See Funsch Depo., p. 51. Funsch testified
also that he and Wilson have known each other for many years, both race sailboats,
but he does not “really hang out with Chad [Wilson] as much.” See id. Nationwide
can cross-examine Funsch at trial regarding any friendship with Wilson and regarding
the compensation he has received from Wilson’s law firm. There is no basis on this
record to exclude Funsch’s opinion and preclude him from testifying at trial. As a
result, the Funsch Motion is denied.
V. JOHNSON MOTION
Caramba designated Gary Johnson as its expert on “Defendant’s claims
handling and implications of failures to fulfill duties to Plaintiff made the basis of this
lawsuit, including but not limited to, proper claims-handling standards [and] the
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failure of Defendant to meet their requirements under these applicable standards.”
Plaintiff’s Designation of Expert Witnesses [Doc. # 20], p. 3. In his Report, Johnson
expressed the opinion that Nationwide “did not adjust the commercial claim properly”
and “failed to extend coverage/payment that would cover necessary
replacement/repair for the roof system, building exterior and interior water damage.”
Johnson Report [Doc. # 20-3], p. 3. Nationwide has moved to strike Johnson’s
opinions and testimony because his Report lacks a complete statement of all his
opinions, because his opinions lack a reliable methodology and are simply ipse dixit,
and because expert testimony on bad faith is irrelevant. See Johnson Motion, p. 2.
Nationwide argues first that Johnson’s opinions and testimony should be
excluded because his Report did not contain all of his opinions. A witness retained
to provide expert testimony must provide a written report that contains “a complete
statement of all opinions the witness will express and the basis and reasons for them.”
See FED. R. CIV. P. 26(a)(2)(B)(i). Nationwide’s Rule 26 argument is based entirely
on a flippant answer Johnson gave during his deposition. When asked if his Report
contained all his opinions, Johnson answered “no, sir” and then stated that any other
opinions “would be based on the questions” Nationwide’s attorney asked. See
Johnson Depo., p. 67. Johnson testified further, however, that there were no other
documents containing additional opinions and that he had not been asked to
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supplement or amend his Report. See id. The Court cannot find from this record that
Johnson’s Report fails to contain all his opinions. Moreover, if Johnson failed to
include all his opinions in his Report, the Court would be inclined to exclude, on that
basis, only the additional opinions, not the opinions that were included in the Report.
Nationwide argues also that Johnson’s opinions should be excluded because
they are not based on a reliable methodology and are, instead, mere ipse dixit of the
witness. As noted above, Johnson stated generally that Nationwide did not adjust
Caramba’s claim properly and improperly failed to pay Caramba’s claim. See
Johnson Report, p. 3. He stated in his Report that Nationwide failed to perform a
reasonable investigation, see id., and testified in his deposition that adjuster McGinnis
should have performed a better investigation. See Johnson Depo., p. 57. The
underlying basis for these opinions is Johnson’s subjective belief that Nationwide
knew or should have known in July 2018 that it was “reasonably clear the claim was
covered.” See Johnson Report, p. 3. Johnson reaches this opinion “based on the
contractor’s statement during inspections that they had to re-secure metal roofing and
cover with coating to mitigate water damages to interior.” See id. at 4. Similarly,
Johnson testified in his deposition that McGinnis “should have explored more of what
the . . . repair contractor who did the temporary repairs was saying and stating.” See
Johnson Depo., p. 57. Johnson identified no other analysis for his opinions.
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It is undisputed that the repair contractor, Gonzalez, performed no repairs to the
roof until June 2018, almost ten months after Hurricane Harvey. Johnson assumed
this was because Caramba did not discover the roof damage until shortly before
June 2018. See id. at 114. Gonzalez testified, however, that he inspected the roof on
or about September 5, 2017, at which time he determined that the roof’s “metal panels
were bent, dented or creased.” See Gonzalez Depo. [Doc. # 25-1], p. 84. He had
previously testified that he would have brought damage he observed to the attention
of Caramba’s owner. See id. at 83-84.
Fundamentally, Johnson’s opinions in support of Caramba’s extra-contractual
claims are nothing more than “credentials and a subjective opinion” and, therefore, his
“opinion that ‘it is so’ is not admissible.” See Hathaway v. Bazany, 507 F.3d 312, 318
(5th Cir. 2007) (quoting Viterbo v. Dow Chem. Co., 826 F.2d 420, 424 (5th Cir.
1987)). To establish reliability under Daubert, an expert must provide objective,
independent support for his methodology. See Brown v. Illinois Cent. R. Co., 705
F.3d 531, 536 (5th Cir. 2013). “The expert’s assurances that he has utilized generally
accepted [principles] is insufficient.” Id. Caramba argues that Johnson gathered the
facts from the claims file and the Stephens Report. See Response [Doc. # 31], p. 4.
The issue under Daubert is not the reliability of the information in the file, but rather
the reliability of Johnson’s methodology is analyzing that information. See Collins
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v. Safeco Ins. Co., 2020 WL 95488, *3 (N.D. Tex. Jan. 8, 2020). Johnson fails to
describe any analysis. Because Johnson failed to base his opinions on reliable
methodology, the opinions are not admissible under Rule 702 and Daubert.
Nationwide asks the Court to strike Johnson’s opinions and testimony because
they are irrelevant. Specifically, Nationwide argues that the jury can reach a decision
on bad faith without expert testimony. The Court agrees. Johnson’s conclusory
opinions and testimony “would amount to simply telling the jury” that Nationwide
acted in bad faith and are, therefore, inadmissible as irrelevant. See, e.g., Haymore v.
Shelter Gen. Ins. Co., 2020 WL 1536571, *4 (S.D. Miss. Mar. 30, 2020). On this
basis also, Johnson’s opinions and testimony are inadmissible.
The Court does not base its ruling on a consideration of whether it believes
Johnson’s opinions are correct or incorrect. Instead, the Court bases its ruling on the
absence of sufficient relevance and reliability, which renders the opinions unlikely to
assist the jury. See Guile v. United States, 422 F.3d 221, 227 (5th Cir. 2005).
Therefore, the Court grants the Motion to Exclude Johnson’s opinions and testimony.
VI. CONCLUSION AND ORDER
As explained above, it is hereby
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ORDERED that Nationwide’s Motion to Strike the Opinions and Testimony
of Neil Hall [Doc. # 22] and Motion to Strike the Untimely Supplemental Report and
Declaration of Neil Hall [Doc. # 38] are DENIED. It is further
ORDERED that Nationwide’s Motion to Strike the Opinion and Testimony of
Kevin Funsch [Doc. # 23] is DENIED. It is further
ORDERED that Nationwide’s Motion to Strike the Opinions and Testimony
of Gary Johnson [Doc. # 24] is GRANTED.
SIGNED at Houston, Texas, this 24th day of December, 2020.
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