The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
BRIAN HOLCOMB and KAREN
HOLCOMB,
Plaintiffs,
v. Case No: 2:24-cv-0181-JES-NPM
SAFETY SPECIALTY INSURANCE
COMPANY,
Defendant.
OPINION AND ORDER
This matter comes before the Court on defendant’s Daubert
Motion to Exclude the Opinion Testimony of Plaintiffs’ Expert,
John McHugh (Doc. #45) filed on June 3, 2025. Plaintiffs filed
a Response (Doc. #50) on June 17, 2025. For the reasons set
forth below, the motion is denied.
I.
Defendant seeks to exclude the opinions of plaintiffs’
expert arguing that John McHugh’s opinions are not based upon
sufficient facts or data and are not the product of a reliable
methodology.
On September 28, 2023, Allied Engineering, LLC (Allied)
completed an investigation of 5730 Estero Boulevard located on
Fort Myers Beach, Florida, the residence of Brian and Karen
Holcomb. The investigation began on July 10, 2023, and the
inspection was performed by employee Forensic Engineer John
McHugh P.E. of Allied Engineering, LLC. (Doc. #45-2.)
Mr. McHugh obtained his master’s degree in engineering
management in 2014, and has lived on Marco Island, Florida, for
10 years. (Doc. #45-3 at 15-16.) McHugh worked as a carpenter
for over 20 years in New York City and San Franscico, including
installing or framing roofs, before going back to school. (Id.
at 16-17.) McHugh has a professional engineering license, and
his Florida license was issued in 2021. To obtain the license,
he had to graduate from an accredited engineering school, have
worked under a licensed engineer for five years, have additional
engineers sign off on his work, and have taken an exam. (Id. at
21-22.)
McHugh worked for Allied in 2023, but now has his own company
called Total Design Services, LLC focusing on design work. (Id.
at 16, 17-18.) The bulk of McHugh’s forensic investigation
experience was limited to his time at Allied. (Id. at 19.)
Everything he did for Allied was related to forensics, mostly for
homeowners and plaintiffs and never for an insurance carrier.
(Id. at 23-24.) McHugh completed at least 100 reports for Allied
and has had his deposition taken at least 10 to 12 times for work
related to Allied. (Id. at 25, 27.) A very small percentage of
time is devoted to serving as an expert witness. At Allied, half
of claims or investigations were wind and other half were flood.
(Id. at 29.) McHugh completed approximately 15 claims related
to Hurricane Ian, and all were found to be wind damage. (Id. at
29-30.) McHugh has agreed to act as an expert witness in this
case but has not been asked to provide an opinion regarding the
cost of repairs, and no other opinions other than the cause and
origin information are in the report. (Id. at 31.) McHugh
receives a percentage of what Allied charges, in this case 40%
of the $375 an hour charged for his deposition. At the time when
he was employed by Allied, he received a base salary and 15% of
the reports generated. (Id. at 32-33.)
On the day of inspection, July 10, 2023, between 1:30 pm and
2:30 pm, about 10 months after the storm, McHugh went to the site
early to walk around but most of it was cleaned up.1 McHugh did
find palm trees that were sheared off about five or six feet
above the sand, some construction debris, the pool mechanicals
were still attached to a concrete pad or block of concrete, and
there was a big garage out front that was still standing because
1 Plaintiffs hired a cleaning crew to clean the lot at a
cost of $3,500 in October 2022, and a second group came out to
do a further clean-up for $6,500 in April 2023. (Doc. #45-4 at
pp. 44-45, 56-57.) Plaintiffs also had the pool cleared of debris
and water for $6,675 and added a required safety fence. (Id. at
60.) Plaintiffs later had the garage demolished and the pool
removed at a cost of $28,000 so they could start over. (Id.) In
February 2023, before the pool was removed, nine loads of sand
were delivered to restore the beach due to scour removing sand
at a cost of $7,650. (Id. at 61.)
it was designed with breakaway walls. (Id. at 36-38.) A lot of
records were destroyed when city hall was “wiped out”, and the
passage of time impacted the ability to investigate. (Id. at 37-
38.)
McHugh had the insurance carrier’s engineer’s report, and
he went to the property a few times because he had other jobs in
the area. (Id. at 41.) The report explained why and how a storm
surge is formed and how it relates to wind speed, bathymetry,
topography, factors other than storm size. (Id. at 45-46.) Most
of the sources are from NOAA. (Id. at 46.) Initially, McHugh
did not reach an “ultimate opinion” because he didn’t have any
pictures to look at, but when he got the Grindley Williams report,
there were several pictures that he could use. He also obtained
pictures from plaintiffs 2 of the beaches, and pictures of
everything from the National Hurricane Center showing the before
and after images of the beach. (Id. at 47.)
McHugh believes that the roof was torn off the house by the
high winds which occurred approximately three hours before the
storm surge. Once the roof was off the house, the walls did not
have any bracing on the top, and the roof and walls were no longer
acting as a frame system. (Id. at 47.) The velocity of the
winds was around 120 miles per hour according to the Ventusky
2 There were 11 photographs. (Doc. #45-4, pp. 62-67.)
wind report. With 130-150 pounds per square foot of pressure
pushing the wall in and out, it tore the house to pieces. The
storm surge came in and pushed around the splinters. (Id. at
48.) The roof was blown off, in McHugh’s opinion, and landed in
the neighbor’s yard over the detached garage across Estero
Boulevard and then landed upright across the street. (Id. at 56-
57.)
II.
Admission of expert opinion evidence is governed by Fed. R.
Evid. 702, which 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
the proponent demonstrates to the court that it is more
likely than not that:
(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’s opinion reflects a reliable
application of the principles and methods to
the facts of the case.
Fed. R. Evid. 702. In Kumho Tire Co. v. Carmichael, 526 U.S. 137
(1999) and Daubert v. Merrell Dow Pharms., 509 U.S. 579 (1993),
the Supreme Court held that the trial court has a “gatekeeper”
function designed to ensure that any and all expert testimony is
both relevant and reliable. The importance of this gatekeeping
function “cannot be overstated.” United States v. Frazier, 387
F.3d 1244, 1260 (11th Cir. 2004) (en banc).
In determining the admissibility of expert testimony under
Rule 702, the Court applies a “rigorous” three-part inquiry.
Frazier, 387 F.3d at 1260. A district court determines the
admissibility of expert testimony by considering whether:
(1) the expert is qualified to testify
competently regarding the matters he intends
to address; (2) the methodology by which the
expert reaches his conclusions is
sufficiently reliable as determined by the
sort of inquiry mandated in Daubert; and (3)
the testimony assists the trier of fact,
through the application of scientific,
technical, or specialized expertise, to
understand the evidence or to determine a
fact in issue.
Knepfle v. J-Tech Corp., 48 F.4th 1282, 1294 (11th Cir. 2022)
(quoting City of Tuscaloosa v. Harcros Chems., Inc., 158 F.3d
548, 562 (11th Cir. 1998)). In short, “the expert must be
qualified; his methodology must be reliable; and his testimony
must be helpful to the trier of fact.” Doe v. Rollins Coll., 77
F.4th 1340, 1347 (11th Cir. 2023). “[T]he party seeking to
introduce the expert at trial bears the burden of establishing
his qualifications, reliability, and helpfulness.” Knepfle, 48
F.4th at 1294 (citing Frazier, 387 F.3d at 1260).
“Even expert testimony which satisfies these three
requirements, however, may nonetheless be excluded under Rule 403
if the probative value of the expert testimony is substantially
outweighed by its potential to confuse or mislead the jury, or
if it is cumulative or needlessly time consuming.” Frazier, 387
F.3d at 1263. In the final analysis, the admission of expert
testimony is a matter within the discretion of the trial court.
Cook ex rel. Est. of Tessier v. Sheriff of Monroe Cnty., Fla.,
402 F.3d 1092, 1103 (11th Cir. 2005); Frazier, 387 F.3d at 1258.
The gatekeeper function, however, does not provide the Court
with an opportunity to substitutes its judgment for that of a
jury as to the persuasiveness of the expert evidence. United
States v. Barton, 909 F.3d 1323, 1332 (11th Cir. 2018). Rather,
“[v]igorous 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.” (Id.) (citation omitted).
The expert testimony anticipated in this case is not
scientific. Nonetheless, “[t]he principles set out in Daubert
apply to soft-science expert testimony. ‘Social science
testimony, like other expert testimony must be tested to be sure
that the person possesses genuine expertise in a field and that
her court testimony adheres to the same standards of intellectual
rigor that are demanded in her professional work.’” Carrizosa
v. Chiquita Brands Int'l, Inc., 47 F.4th 1278, 1317–18 (11th Cir.
2022) (citations omitted).
That said, “social science research,
theories, and opinions cannot have the
exactness of hard science methodologies,”
and “peer review, publication, error rate,
etc. are not applicable to this kind of
testimony, whose reliability depends heavily
on the knowledge and experience of the
expert.” [] Where “ideal experimental
conditions and controls” are precluded,
“other indicia of reliability are considered
under Daubert, including professional
experience, education, training, and
observations.” [] Where appropriate, social
science expert testimony can give the jury a
view of the evidence well beyond their
everyday experience.
Id. at 1318 (internal citations omitted).
III.
The first requirement is that the expert is qualified to
testify on the subject matter. As noted by plaintiffs, defendant
does not raise any arguments as to McHugh’s qualifications as an
expert. (Doc. #50 at 2.) The Court will therefore proceed to
the other requirements and deem this first element met.
A. Reliability of Methodology
Defendant argues that McHugh’s conclusions are not based on
sufficient facts and data because the foundation for McHugh’s
conclusions is deficient. Plaintiffs respond that reaching a
different conclusion does not mean McHugh’s opinions or
investigation were deficient or not based on sufficient facts or
data.
McHugh’s report includes a list of references as follows:
National Hurricane Center (N.H.C.) -
Hurricane Irma Archive, Sept.-Oct.
2022.Tropical Cyclone Report-Hurricane IAN.
National Environmental Satellite Data and
Information Service. (NESDIS).
NOAA GOES 16 Satellite Tracking Ian 9/23/2022
-10/01/2022.
NOAA Hurricane Ian Imagery
storms.ngs.noaa.gov/storms/ian/index.html.
Ventusky Visualization Map by lnMetco for
September 28, 2022.
VERISK Benchmark Wind History Report for
September 10, 2017.
USGS Earth Resources Observation and Science
(EROS) Center, Landsat 8 Sat.Sys. 9/28/2022.
USGS Path Map Hurricane Ian Sept. 27-30,
2022.
National Weather Service Path Map - Hurricane
Ian.
ACCUWEATHER
https://www.accuweather.com/en/hurricane/su
rvey-findshurricane-ian-storm-surge-levels-
in-fort-myers/1262778
McGraw-Hill Co., Architectural Forensics,
2008 by Sam A. A. Kubba, PhD, AIA, RIBA.
Standard and Reference Guide for
Professional Water Damage Restoration I,
IICRC 5500, 4th Ed.
Gypsum Assoc., "Assessing Water Damage to
Gypsum Board", (GA-231-2019).
National Institute of Building Sciences.
Whole Building Design Guide. Wind induced
pressures on buildings.
BuildFax Permit History Report 2022.
2020 Florida Building Code Seventh Edition.
Google Earth Pro, 2023.
Lee County Property Appraiser, 2023.
New York Post 9/29/2022
PALM BEACH POST:
https://www.palmbeachpost.com/videos/news/2
022/09/30/drone-shows-ft-myersbeach-
wreckage.
WFTX Southwest Florida Fox 4 Now.com
https://www.fox4now.com.
SARASOTA HERALD TRIBUNE
https://www.heraldtribune.com.
USA TODAY https://www.usatoday.com/in-
depth/graphics/2022/09/27/how-stormsurge-
works-hurricane-ian/10441070002/.
Karen and Brian Holcomb, Homeowner's
provided [] additional photos showing the
home immediately after Hurricane Ian. The
couple also provided Phase I, II, and III
building plans detailing the additions
designed by McHarris Planing [sic] and
Design.
Realtor.com, https://www.realtor.com/.
ResearchGate
https://www.researchgate.net/figure/Design.
SVC Storm Chasing Videos LLC,
https://www.stormchasingvideo.com/2022/09/2
9/extreme-debris-filled-windsplacida-
florida-hurricane-ian-9-28-2022/
(Doc. #43-3 at 5-6.) Defendant argues that McHugh ignores the
data from the NHC Report and the Max Olson video evidence in
formulating his opinions, even though both are included in
McHugh’s references. Defendant argues that the conclusions are
the product of “educated guesses”, and McHugh relied entirely on
the information of others and the photographs of others in the
face of “undisputed video evidence3” and the NHC Report.
The reliability of non-scientific expert opinions depends
heavily on the knowledge and experience of the expert, not the
exactness of the methodology. Indicia of reliability under
Daubert includes professional experience, education, training,
and observations. Carrizosa, 47 F.4th at 1318. If an expert “is
relying solely or primarily on experience, then he must explain
how that experience leads to the conclusion reached, why that
experience is a sufficient basis for the opinion, and how that
experience is reliably applied to the facts.” Id. at 1322.
While defendant may not agree with the opinion and
conclusions, it is not the methodology that is at issue. Rather,
defendant takes issue with the weight attributed to the various
sources and the conclusions reached. This is an issue for the
jury not a reason to exclude the opinion as not reliable.
3 The Max Olson video depicts a property 2.9 miles North and
West of plaintiffs’ property. (Doc. #40 at 1.)
B. Helpfulness
The third prong asks, “whether that reasoning or methodology
properly can be applied to the facts in issue.” Daubert, 509 U.S.
at 593. Commonly referred to as the “helpfulness” inquiry, expert
testimony can properly be applied and is helpful if it relates
to any issue in the case and if it concerns matters that are
beyond the understanding of an average lay person. Prosper v.
Martin, 989 F.3d 1242, 1249 (11th Cir. 2021).
It is undisputed that McHugh did not inspect the property
until months after Hurricane Ian, after the property’s condition
had changed due to a clean up and added sand, and that the
pictures were taken by others. These facts do not take away from
the analysis that relied partially on defendant’s photographs
taken soon after Hurricane Ian or the fact that the report
provides a more in-depth analysis than the Grindley Williams
report.
C. Rule 403
The Court finds that McHugh satisfies all three prongs of
Daubert, and the Court finds no undue prejudice from the
anticipated testimony. The weight of the testimony is an issue
for the jury.
Accordingly, it is hereby
ORDERED:
Defendant’s Daubert Motion to Exclude the Opinion Testimony
of Plaintiffs’ Expert, John McHugh (Doc. #45) is DENIED.
DONE and ORDERED at Fort Myers, Florida, this 27th day
of August 2025.
é — (2 _ /
JGHN E. STEELE
5 ISR UNITED STATES DISTRICT JUDGE
Copies:
Counsel of Record