Petition for Writ of Certiorari — Mama Jo’s, Inc., dba Berries, Petitioner v. Sparta Insurance Company

NO. 20-_____

In the

Supreme Court of the United States

MAMA JO’S, INC. D/B/A BERRIES,

Petitioner,

v.

SPARTA INSURANCE COMPANY,

Respondent.

__________________________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Eleventh Circuit

PETITION FOR WRIT OF CERTIORARI

LEONARDO H. DA SILVA, II

COUNSEL OF RECORD

BRIAN C. COSTA

MIGUEL R. LARA

CHRISTOPHER A. MARTINEZ

ALVAREZ FELTMAN DA SILVA & COSTA, P.L.

2525 S.W. 27TH AVENUE, SUITE 200

MIAMI, FL 33133

(786) 409-6000

LEO@AFDC.LEGAL

COUNSEL FOR PETITIONER

JANUARY 14, 2021

SUPREME COURT PRESS

♦

(888) 958-5705

♦

BOSTON, MASSACHUSETTS

i

QUESTIONS PRESENTED

The central question in this matter is what constitutes physical damage to property for the purposes of

triggering coverage under an all-risk insurance policy.

Amongst the jurisdictions, it is generally agreed that

an all-risk insurance policy covers all fortuitous, “direct”

and “physical” losses which are not specifically excluded

or limited therein. The Circuit Courts are split as to

what constitutes “direct physical loss”. Some Circuits

employ a more expansive definition in favor of insurance coverage for policyholders. Other Circuits employ

a more narrow and restrictive interpretation in favor of

insurance carriers. Although this case involves physical

construction dust and debris damage to a restaurant,

certain issues presented overlap with the recent

proliferation of COVID-19 insurance cases across the

country.

Additionally, these proceedings present the question of what level of testing, if any, is required to

satisfy the Daubert standard and whether the district

court may circumvent the role of the jury by ruling

on the veracity of the opinion of a causation expert.

This Court has held that a court’s gatekeeper role is

not intended to supplant the role of the jury.

Instead, vigorous cross-examination, presentation of

contrary evidence, and careful instruction on the

burden of proof to the jury are the traditional and

appropriate means to attack expert testimony. The

questions presented are:

1. Whether construction dust and debris damage

to covered property constitutes “direct physical loss”

under an all-risk insurance policy.

2. Whether it was appropriate for the lower court

to impose a heightened testing standard and supplant

ii

itself for the jury in excluding Petitioner’s causation

experts under Daubert and its progeny.

iii

CORPORATE DISCLOSURE STATEMENT

Petitioner does not have a parent corporation.

No publicly held company owns 10% or more of

Petitioner’s stock.

iv

PROCEEDINGS BELOW

United States Court of Appeals for the Eleventh Circuit

No. 18-12887

Mama Jo’s Inc., D/B/A Berries, Plaintiff-Appellant, v.

Sparta Insurance Company, Defendant-Appellee.

Opinion Date: August 18, 2020

_____________

United States District Court for the

Southern District of Florida

No. 1:17-cv-23362-KMM

Mama Jo’s, Inc. D/B/A Berries, Plaintiff, v. Sparta

Insurance Company, Defendant.

Omnibus Order Date: June 11, 2018

v

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ........................................ i

CORPORATE DISCLOSURE STATEMENT ........... iii

PROCEEDINGS BELOW .......................................... iv

TABLE OF AUTHORITIES .................................... viii

PETITION FOR A WRIT OF CERTIORARI ............. 1

OPINIONS BELOW ................................................... 1

JURISDICTION.......................................................... 1

CONSTITUTIONAL PROVISIONS........................... 2

STATEMENT OF THE CASE .................................... 2

A. Relevant Factual Background ..................... 3

B. Procedural History ........................................... 7

REASONS FOR GRANTING THE PETITION ......... 8

I.

WHAT IS “DIRECT PHYSICAL LOSS”? THE

CONFLICT AMONGST THE CIRCUITS. .................. 9

A. Circuits Ruling in Favor of Policyholders. ...................................................... 10

B. Circuits Ruling in Favor of Insurers. ....... 14

II. W HY THE E LEVENTH C IRCUIT ’ S O PINION

I S INCORRECT. ................................................. 19

A. Policy Language. ....................................... 20

III. THE IMPORTANCE OF RESOLVING THE CONFLICT BETWEEN CIRCUITS REGARDING WHAT

CONSTITUTES “DIRECT PHYSICAL LOSS”. .......... 24

IV. WHY THE ELEVENTH CIRCUIT MISAPPLIED

IMPORTANT DAUBERT PRINCIPLES. ................. 26

CONCLUSION.......................................................... 29

vi

TABLE OF CONTENTS – Continued

Page

APPENDIX TABLE OF CONTENTS

Opinion of the United States Court of Appeals for

the Eleventh Circuit (August 18, 2020) ............. 1a

Omnibus Order of the United States District

Court for the Southern District of Florida

(June 11, 2018) ................................................. 23a

OTHER DOCUMENTS

Sparta Insurance Policy— Relevant Excerpts ...... 49a

Common Policy Declarations ........................... 50a

Schedule of Forms and Endorsements ............ 52a

Schedule of Locations ....................................... 56a

Common Policy Conditions .............................. 57a

Notice to Policyholders Risk Management

Plan Florida ...................................................... 60a

Commercial Property Coverage Part

Supplemental Declarations ............................. 61a

Commercial Property Coverage Part

Extension of Supplemental Declarations ........ 63a

Building and Personal Property Coverage

Form .................................................................. 65a

Business Income (and Extra Expense)

Coverage Form ............................................... 108a

Exclusion of Loss Due to Virus or Bacteria ... 135a

Causes of Loss – Special Form....................... 137a

Water Exclusion Endorsement ...................... 165a

Windstorm or Hail Exclusion......................... 167a

vii

TABLE OF CONTENTS – Continued

Page

Loss Payable Provisions ................................. 169a

Business Income Changes-Time Period ........ 174a

Florida Changes ............................................. 178a

Commercial General Liabiality Coverage

Part Supplemental Declarations ................... 186a

Commercial General Liabiality

Coverage Schedule ......................................... 189a

Liquor Liability Coverage Part Declarations 191a

Total Pollution Exclusion Endorsement ........ 193a

Fungi or Bacteria Exclusion .......................... 194a

Silica or Silica-Related Dust Exclusion ......... 197a

Exclusion–Asbestos Advisory Notice to

Policyholders................................................... 199a

Exclusion–Lead Advisory Notice to

Policyholders................................................... 200a

Florida Changes–

Cancellation and Nonrenewal........................ 201a

Products/Completed Operations Hazard

Redefined ........................................................ 205a

Asbestos Exclusion ......................................... 207a

Lead Exclusion ............................................... 210a

viii

TABLE OF AUTHORITIES

Page

TABLE OF AUTHORITIES

CASES

Adams-Arapahoe Sch. Dist. No. 28-J

v. GAF Corp., 891 F.2d 772

(10th Cir. 1989) ............................... 13, 14, 17, 18

Aetna Ins. Co. v. Boon,

95 U.S. 117 (1877) .............................................. 23

Aschenbrenner v. U.S. Fidelity & Guar. Co.,

292 U.S. 80 (1934) ............................................. 23

Bellsouth Telecomm., Inc. v. W.E. Grace & Co.,

77 F.3d 603 (2d Cir. 1996) ................................. 11

Bitler v. A.O. Smith Corp.,

400 F. 3d 1227 (10th Cir. 2005) .................... 27, 28

Cooper v. Carl A. Nelson & Co.,

211 F. 3d 1008 (7th Cir. 2000) .......................... 26

Daubert v. Merrill Dow Pharm., Inc.,

509 U.S. 579 (1993) .................................... passim

de Laurentis v. United Services Auto. Ass’n.,

162 S.W.3d 714 (Tex.Ct.App. 2005) .................. 16

Essex Ins. Co. v. BloomSouth Flooring Corp.,

562 F.3d 399 (1st Cir. 2009) ........................ 10, 18

General Mills, Inc. v. Gold Medal Insurance Co.,

622 N.W.2d 147 (Minn. Ct. App. 2001).............. 12

Great Lakes Reinsurance (UK) PLC v. KanDo, Inc., 639 F. App’x 599 (11th Cir. 2016) ...... 19

Great Northern Ins. Co. v. Benjamin Franklin

Federal Savings & Loan Ass’n,

953 F.2d 1387 (9th Cir. 1992) ........................... 17

ix

TABLE OF AUTHORITIES – Continued

Page

Hartford Ins. Co. of Midwest v. Mississippi

Valley Gas Co. ,

181 Fed.Appx. 465 (5th Cir. 2006) .......... 15, 16

Hudson v. Prudential Prop. And Cas. Ins. Co.,

450 So. 2d 565 (Fla. 2d DCA 1984) ..................... 4

Hughes v. Potomac Ins. Co. of District of

Columbia, 199 Cal.App.2d 239,

18 Cal. Rptr. 650 (Ct. App. 1962) ..................... 13

Kumho Tire Co. v. Carmichael,

526 U.S. 137 (1999) ...................................... 27, 28

Mejia v. Citizens Prop. Ins. Corp.,

161 So. 3d 576 (Fla. 2d DCA 2014) ..................... 4

Morrison Grain Co. v. Utica Mut. Ins. Co.,

632 F.2d 424 (5th Cir. 1980) ............................. 20

Netherlands Ins. Co. v. Main Street

Ingredients, LLC,

745 F.3d 909 (8th Cir. 2014) ........... 11, 12, 13, 18

Orth v. Emerson Elec. Co.,

980 F. 2d 632 (10th Cir. 1992) .......................... 27

Port Authority of New York and New Jersey v.

Affiliated FM Ins. Co. et al,

311 F.3d 226 (3d Cir. 2002) ................... 14, 15, 16

Promotional Headwear International v. The

Cincinnati Ins. Co., No. 20-CV-2211-JAR-

GEB, 2020 WL 7078735 (D. Kan. 2020) ........... 24

Source Food Technology, Inc. v. U.S. Fidelity

and Guar. Co.,

465 F.3d 834 (8th Cir. 2006) ....................... 12, 25

x

TABLE OF AUTHORITIES – Continued

Page

Universal Image Productions, Inc. v. Federal

Ins. Co., 475 Fed.Appx. 569 (6th Cir. 2012) ...... 16

Wallach v. Rosenberg,

527 So. 2d 1386 (Fla. 3d DCA 1988) ............. 4, 17

Western Fire Insurance Co. v. First

Presbyterian Church,

165 Colo. 34, 437 P. 2d 52 (1968) ................. 13, 14

Windridge of Naperville Condo. Ass’n v.

Philadelphia Indem. Ins. Co.,

932 F.3d 1035 (7th Cir. 2019) ........................... 17

Wyoming Sawmills, Inc. v. Transportation

Insurance Co., 578 P.2d 1253 (Or.1978) .............. 17

STATUTES

28 U.S.C. § 1254(1) ..................................................... 1

JUDICIAL RULES

Fed. R. Evid. 702 ....................................................... 26

1

PETITION FOR A WRIT OF CERTIORARI

Petitioner respectfully requests a writ of certiorari

to review the opinion of the United States Court of

Appeals for the Eleventh Circuit (the “Opinion”).

OPINIONS BELOW

The Opinion of the Eleventh Circuit is reprinted

in the Appendix to the Petition (“App.”) at 1a-22a. It is

also available at 823 Fed. Appx. 868 (11th Cir. 2020).

The opinion of the district court is reprinted at App.

23a-48a, and is available at Westlaw citation 2018 WL

3412974 (S.D. Fla. June 11, 2018). These opinions have

not been designated for publication.

JURISDICTION

The Eleventh Circuit issued its Opinion on August

18, 2020. On March 19, 2020, this Court extended

the deadline to file any petition for writ of certiorari

due on or after that date to 150 days. Accordingly,

this Petition is timely. This Court has jurisdiction

under 28 U.S.C. § 1254(1).

2

CONSTITUTIONAL PROVISIONS

There are no constitutional provisions, treaties,

statutes, ordinances, or regulations involved in this

case.

STATEMENT OF THE CASE

Across the country, home and business owners

obtain all-risk insurance policies and rely on the

security of knowing their properties and businesses

are protected by the coverages afforded therein. The

Opinion below construes the general provisions

found in nearly all policies providing coverage for

“direct” and “physical” losses to exclude coverage for

items or structures that need to be cleaned instead

of replaced. The implications of this overly narrow

interpretation of coverage have a significant impact

on the insurance industry. While this case pertains

to cleaning construction dust and debris as well as

actual physical loss to property and business income,

the restrictive interpretation of “direct physical loss”

extends to claims involving the cleaning and

remediation of water, mold, smoke, soot, and viruses.

Because there is a split amongst the Circuits as to

the interpretation of “direct physical loss” in the face

of damage that may be repaired through cleaning,

there is cause for this Court to accept jurisdiction to

resolve the conflict.

Additionally, in the proceedings below, Petitioner

proffered the testimony of three causation experts,

3

Alex Posada (audio/lighting), Chris Thompson (awning

damage), and Alfredo Brizuela, P.E. (engineering/

causation). The district court found that each of these

experts were sufficiently qualified in their respective

fields, but still excluded their opinions as “unreliable”.

In so doing, the district court exceeded its role as

gatekeeper and substituted itself as the jury by

prejudging select portions of their proffered testimony.

As held by this Court and adopted by the Seventh

Circuit, cross-examination, presentation of contrary

evidence, and instructions on the burden of proof to

the jury are the traditional and appropriate means of

attacking otherwise admissible expert testimony.

Further, in affirming the district court, the Eleventh

Circuit implicitly adopted a heightened standard that

requires a specific means of testing to satisfy the

Daubert standard, contrary to the standard adopted

by the Tenth Circuit that testing is not necessary in

all instances to establish reliability.

A.

Relevant Factual Background

This case stems from a dispute relating to an

“all-risk” insurance policy in effect between the Petitioner, Mama Jo’s, Inc. d/b/a Berries (“Berries”) and

Respondent, Sparta Insurance Company (“Sparta”).

The stipulated facts are: (1) that Berries operates as a

restaurant in Miami, Florida; (2) that Berries was

located at 2884 S.W. 27th Avenue, Miami, Florida

33133; (3) roadwork construction on S.W. 27th Avenue

caused construction dust and debris to migrate onto

Berries’ premises; and (4) that Berries submitted a

claim to Sparta on or about December 12, 2014. [D.E.

143 at 5]. Berries’ original claim of $16,275.58

included increased cleaning costs, painting of the

restaurant’s damaged exterior walls, painting and

4

re-striping of the restaurant's parking lot area and

business income losses of $292.550.84 related to same.

The claim was timely supplemented to include

$319,688.57 for Berries’ sophisticated awning, lighting

and audio systems. The entire construction dust

claim relates to damages to the outdoor dining area, as

differentiated from specifically excluded interior dust

damage. See Relevant Excerpts of the Policy of

Insurance at App.49a-212a. From December 2013

through June 2015, roadway construction immediately

adjacent to Berries caused dust and debris to migrate

onto and affect the restaurant. [D.E. 146 at 2].

Berries asserted that the contact of the construction

dust and debris from the roadwork on the restaurant

caused damage to its property. Id. at 3. Without ever

conducting a physical inspection of the property,

Sparta denied Berries’ claim on January 30, 2017

stating that the claims presented were not covered

by the policy. [D.E. 101 at 5].

The policy at issue is an “all-risk” policy as defined

by Florida law, which covers for any fortuitous loss

that is not expressly excluded by the terms of the policy.

[D.E. 110 at 2]; Mejia v. Citizens Prop. Ins. Corp.,

161 So. 3d 576, 578 (Fla. 2d DCA 2014); Hudson v.

Prudential Prop. And Cas. Ins. Co., 450 So. 2d 565,

568 (Fla. 2d DCA 1984); Wallach v. Rosenberg, 527

So. 2d 1386, 1388-89 (Fla. 3d DCA 1988). The policy

also provides coverage for “loss of business income”

sustained due to “the necessary suspension of operations during the period of restoration” as well as “extra

expense you incur during the period of restoration.”

App.108a-109a.1 Notably, the loss of business income

1 “Suspension” is defined in the policy in pertinent part as “(a)

[t]he slowdown or cessation of your business activities”. App.134a.

5

coverage is contingent upon a “direct physical loss” to

property. Id. The term “direct physical loss” is not

defined by the policy and is the subject of conflicting

interpretations by the Circuits. Sparta’s denial and

defense are predicated on the position that the effect

of dust and debris on the property did not constitute

a “direct physical loss” because the construction dust

damage could be cleaned or otherwise remediated.

During litigation, Berries retained an awning

expert (Chris Thompson) and an audio/lighting expert

(Alex Posada) to assess the damage at the Berries

restaurant. Both performed testing and confirmed

that the damage attributable to the adjacent street

work significantly extended to Berries’ sophisticated

awning and audio/visual systems. Berries also retained

the services of licensed professional engineer, Alfredo

Brizuela, P.E., to determine how and to what extent the

construction dust and debris damaged the restaurant.

Berries timely supplemented its damage model to

include the additional damages confirmed by its

experts.

Berries’ audio/lighting expert, Alex Posada, testified that he had several years of experience in the

audio/lighting industry, including experience working

with nightclub audio/lighting systems damaged by

construction dust and debris. [D.E. 108-1 at 98:2199:8]. Mr. Posada performed visual and auditory testing

of Berries’ audio and lighting systems. Id. at 24:547:5. Although the district court criticized Mr. Posada

for not conducting “quality control diagnostic testing”,

Mr. Posada testified at length about how he developed

the specialized ability to auditorily test for and

determine whether a speaker was damaged by dust

or debris based on the unique sound such speakers

6

make. Id. at 84:3-11; 94:4-21. Mr. Posada further

testified that he visually observed and confirmed that

dust and debris had affected the lights and speakers

as he observed corroded speaker elements not

attributable to normal wear and tear or exposure to

the elements and observed lighting fixtures filled

with dust and debris causing the lights not to work.

Id. at 24:15-25; 38:15-17; 25:23-25; 32:17-20.

Berries’ awning expert, Chris Thompson, testified

that he had over 30 years of experience in the awning

industry and had received numerous awards in the

areas of awning design and manufacturing. [D.E. 105-4

and 108-3 at 47:23-48:16]. Mr. Thompson further testified that he performed visual testing during his walkthrough of the restaurant and observed irreparable

awning damage that was attributable to the construction dust and debris. [D.E. 108-3 at 40:5-9 and 13-18;

43:20-22; 44:14-20; 46:13-17; 62:20-25; 65:6-8; 71:1723; 72:9-11; 79:3-18; 81:17-18). These damages included

accumulation of sediment and debris in the tracks

for the restaurant’s electric roll-up curtains, damage

to the drive-belt rendering the retractable awning roof

inoperable, and damage to the awning fabric itself

due to discoloration, shrinking, etc. Id. Notably, in

excluding Mr. Thompson’s proffered testimony, the

district court ignored the stipulated fact that construction dust and debris in fact migrated onto the

restaurant. Mr. Thompson’s testimony explained how

the roadwork construction dust and debris affected

the awnings after damaging contact was made, not

whether contact was made in the first instance.

Berries’ engineering/causation expert, Alfredo

Brizuela, P.E., testified that he is a licensed professional

engineer with over 33 years of experience in forensically

7

assessing commercial and residential property damage.

[D.E. 113-10 and 113-11]. Mr. Brizuela testified in

detail about how his visual and tactile testing led him

to conclude that construction dust and debris from

the nearby roadwork had aerosolized, migrated onto

the restaurant, and then when combined with water,

such as rain, had become a corrosive paste that bonded

to the restaurant’s exterior finishes and could not be

removed without damaging the finishes it adhered to.

[D.E. 113-10 and 108:5 at 98:11-112:21]. Mr. Brizuela’s

opinions about these chemical processes were based

on his experience, reliable scientific principles and

scientific literature.

Although the district court found that all three

experts were qualified, it excluded their proffered

opinions as “unreliable” by improperly prejudging the

weight to be afforded to each expert’s opinions. The

Eleventh Circuit adopted the district court’s findings.

B.

Procedural History

Berries filed suit on May 19, 2017 in state court

in Miami-Dade County, Florida. On September 6,

2017, Sparta removed the case to the United States

District Court for the Southern District of Florida.

On April 6, 2018, Sparta moved for summary judgment

and to exclude the testimony of Berries’ causation

experts. Both motions were granted by the district court

on June 11, 2018. Berries appealed to the United

States Court of Appeals for the Eleventh Circuit. On

August 18, 2020, the Eleventh Circuit filed its Opinion

affirming the district court’s grant of summary

judgment in favor of Sparta and the exclusion of

Berries’ three causation experts. The Opinion

includes a determination that “under Florida law, an

8

item or structure that merely needs to be cleaned has

not suffered a loss which is both direct and physical.”

App.21a. This petition follows.

REASONS FOR GRANTING THE PETITION

The judgment below marked a matter of first

impression for the Eleventh Circuit. In rendering its

decision that damage that can be “cleaned” does not

constitute “direct physical loss” to property, the Eleventh Circuit entered the fray in a split of jurisdictions

on the issue. “Direct physical loss” is not defined in the

policy and has been subject to differing interpretations

among the Circuits. Certain Circuits have taken a

more restrictive approach to the definition of physical

loss, requiring tangible damage or destruction to

property. Other Circuits have recognized that

something other than total tangible destruction

can be deemed a physical loss to property.

Determination of this contested issue of law is a

matter of great public importance. At the time the

Eleventh Circuit issued the Opinion, this question of

law already affected hundreds of thousands of policy

holders. Significantly, as of the date of this petition,

the Eleventh Circuit’s Opinion has been cited over

50 times in briefs directed towards COVID-19 claims.

Insurance carriers are employing the rationale used

by the Eleventh Circuit here and other jurisdictions

to argue that viral contamination is not a direct

physical loss because the virus can be cleaned or

disinfected. This further reflects the disparity in the

law and the conflict between the Circuits to the

9

extent that the basis for these rulings center on the

definition of physical loss. This petition should be

granted to resolve this important question of law and

the conflict between the Circuits.

The Opinion below also erred in its affirmance of

the exclusion of Petitioner’s experts. A court’s

gatekeeping function has been well established since

this Court’s landmark decision in Daubert v. Merrill

Dow Pharm., Inc., 509 U.S. 579 (1993). This Court

and the Seventh Circuit have held a court’s

gatekeeper role is not intended to supplant the

adversary system or the rule of the jury. Instead,

where the rejection of expert testimony is the

exception, rather than the rule, vigorous crossexamination, presentation of contrary evidence, and

careful instruction on the burden of proof are the

traditional and appropriate means of attacking otherwise admissible expert testimony. In affirming the

district court’s exclusion of Berries’ causation experts,

the Eleventh Circuit improperly allowed the district

court to prejudge the experts’ proffered testimony.

Further, contrary to the standard adopted by the

Tenth Circuit, the Eleventh Circuit implicitly allowed

the district court to adopt a Daubert standard that

imposed a heightened yet undefined testing requirement as a condition precedent to admissibility.

I.

WHAT IS “DIRECT PHYSICAL LOSS”? THE CONFLICT

AMONGST THE CIRCUITS.

The term “direct physical loss” is often undefined

in an “all-risk” policy and has been subject to conflicting

interpretations amongst the Circuits. The First, Second,

Eighth and Tenth Circuits have held in favor of

coverage for policyholders giving the term a more

10

expansive definition. However, the Third, Fifth, Sixth,

Seventh, Ninth, and Eleventh Circuits have held in

favor of insurers giving the term a more narrow

definition against coverage.

A. Circuits Ruling in Favor of Policyholders.

1. The First Circuit.

In Essex Ins. Co. v. BloomSouth Flooring Corp.,

the First Circuit was asked to interpret the term “direct

physical loss” in the context of a duty to defend action

against BloomSouth for the alleged defective installation of flooring. 562 F.3d 399 (1st Cir. 2009). The

only symptom of the alleged defect was a permeating

odor emanating from the carpeting. The First Circuit

performed its analysis based on two unpublished,

lower court Massachusetts decisions and cases from

other jurisdictions. Id. at 404-5. In summary, the

decisions reviewed opined that odors were physical

because they infiltrated the property and contaminated

the building. Id. at 405. In accepting this reasoning,

the First Circuit noted that those decisions rejected

the concept that physical damage could only occur if

some tangible injury to the physical structure occurred,

reasoning that such a limiting definition must be

included in the policy language to apply. Id.

The First Circuit rejected the insurer’s arguments

that odors were not tangible and were not physical

damage, finding the allegation that unwanted odor

permeated the building sufficiently alleged damage

to property. Id. The First Circuit also found that the

allegations that the odor was pervasive and permeating

were sufficient to assert a physical injury to property.

Id. at 406.

11

2. The Second Circuit

In Bellsouth Telecomm., Inc. v. W.E. Grace & Co.,

the Second Circuit interpreted the term “direct physical loss” in the context of a defense of an asbestos

claim. 77 F.3d 603 (2d Cir. 1996). In discussing the

point of accrual for the claim, the Second Circuit noted

that Bellsouth had completed asbestos abatement

throughout the building and found this fact to be

conclusive evidence that there was an asbestos

contamination in the building and that Bellsouth had

suffered “actual property damage—not just economic

loss—as a result of this contamination.” Id. at 613.

Notably, that declaration of law was made in the face

of Bellsouth’s contention that a “building-wide” contamination did not occur until 1992. Id. at 611-12. This

analysis necessarily includes the determination that

asbestos contamination in the building constitutes

property damage even without the building-wide

contamination. This is in line with the Eighth Circuit

opinion below.

3. The Eighth Circuit

In Netherlands Ins. Co. v. Main Street Ingredients,

LLC, the Eighth Circuit interpreted the term “direct

physical loss” in the context of a duty to defend claim

stemming from a recall of dried milk distributed by

Main Street to customers, including Malt-O-Meal

Co., which used the dried milk in its instant oatmeal.

745 F.3d 909 (8th Cir. 2014). Relevant to our

presented question, Netherlands argued that it had

no duty to defend Main Street because the dried milk

did not suffer “property damage”. Id. at 913. The Eighth

Circuit based its analysis on Minnesota law,

particularly the holding in General Mills, Inc. v. Gold

12

Medal Insurance Co., where the Court of Appeals of

Minnesota decided a similar coverage question

involving a dispute by General Mills for loss of oat

products that were treated with an unapproved

pesticide. 622 N.W.2d 147 (Minn. Ct. App. 2001). The

General Mills court held that “where the function of

insured property is impaired, direct physical loss may

exist without destruction of or structural damage to

the property”. Id. at 149 and 155.

The general principle that tangible structural

damage is not a requirement of “direct physical loss”

where functionality is impaired was adopted by the

Main Street court. The Eighth Circuit similarly found

that the findings of unsanitary conditions and recall

of the dried milk product constituted physical property

damage to the instant oatmeal regardless of whether

any salmonella was actually discovered in the products.

Id. at 916-17. In reliance on General Mills, the Main

Street Court determined that impairment of functionality, namely the loss of the sale of those products

because of the risk of salmonella, was sufficient to

constitute a physical loss. Id.

Additionally, we look to the Eighth Circuit’s opinion in Source Food Technology, Inc. v. U.S. Fidelity

and Guar. Co., 465 F.3d 834 (8th Cir. 2006). Though

decided before Main Street, this case also analyzed

General Mills. The Eighth Circuit found against

coverage of Source Food’s loss of purchased beef, which

was not shipped in from Canada based on an embargo

of Canadian beef during the “mad cow” epidemic. Id.

at 835. The distinguishing feature in this analysis is

that there was no evidence that any contamination

touched Source Food’s product and the evidence

supporting the loss of the product was limited to

13

governmental action. This is distinguishable from Main

Street where the “contamination”, i.e., the preparation

of the product in unsanitary conditions, touched the

actual product at issue. The Eighth Circuit’s current

position is that such a touching that impairs the use

of the property is direct physical loss.

4. The Tenth Circuit

In Adams-Arapahoe Sch. Dist. No. 28-J v. GAF

Corp., the Tenth Circuit interpreted the term “direct

physical loss” in the context of coverage of a partially

collapsed roof structure, which was attributed to the

introduction of gypsum-based concrete that caused the

roofing structural components to corrode. 891 F.2d 772

(10th Cir. 1989). The Tenth Circuit analyzed whether

the entirety of the roofing structure was deemed to be

a physical loss or just the small portion that actually

collapsed. The Adams-Arapahoe Court’s discussion

on this issue focused on Western Fire Insurance Co.

v. First Presbyterian Church, 165 Colo. 34, 437 P. 2d 52

(1968). There, a church was deemed uninhabitable

due to the accumulation of gasoline around and under

the building. Id. Importantly, there was no physical

damage to the building. Id. at 55. The Colorado

Supreme Court held that the loss of use of the church

from the infiltration of gas was a physical loss. Id.

The First Presbyterian court quoted and followed

the rationale of the First District Court of Appeal of

California in Hughes v. Potomac Ins. Co. of District

of Columbia, which reasoned:

To accept appellant’s interpretation of its

policy would be to conclude that a building

which has been overturned or which has been

placed in such a position as to overhang a

14

steep cliff has not been ‘damaged’ so long as

its paint remains intact and its walls still

adhere to one another. Despite the fact that

a ‘dwelling building’ might be rendered completely useless to its owners, appellant would

deny that any loss or damage had occurred

unless some tangible injury to the physical

structure itself could be detected. Common

sense requires that a policy should not be so

interpreted in the absence of a provision

specifically limiting coverage in this manner.

199 Cal.App.2d 239, 248-49, 18 Cal. Rptr. 650, 655

(Ct. App. 1962)

In reliance on First Presbyterian , the Tenth

Circuit agreed that the presence of corrosion in the

roofing structure caused by the introduction of the

gypsum-based concrete, constituted a physical loss even

for those parts of the roof that had not actually collapsed or broken. Adams-Arapahoe, 891 F.2d at 777-78.

B. Circuits Ruling in Favor of Insurers.

1. The Third Circuit.

In Port Authority of New York and New Jersey

v. Affiliated FM Ins. Co. et al, the Third Circuit

reviewed the district court’s holding that, in order to

be deemed a physical loss or damage, the presence of

asbestos must be of such a quantity or condition as to

make the building unusable. 311 F.3d 226, 230 (3d Cir.

2002). In reaching this narrow interpretation, the Third

Circuit distinguished cited cases from the Minnesota

Court of Appeal because those cases dealt not only

with the presence of asbestos, but also the release of

asbestos fibers and resulting contamination. Id. at

15

234. After reviewing additional cases from other

districts, the Third Circuit noted that no applicable

state law existed to provide guidance and it fell to the

Third Circuit to determine what the law should be.

Id. at 235.

The Third Circuit agreed with the district court’s

ruling noting that if the quantity of asbestos was

such that the building was unusable, then there may

be coverage. In other words, the presence and potential

threat of asbestos contamination was insufficient,

only actual contamination or an imminent threat of

contamination would constitute a physical loss and

trigger coverage. Id. at 236. While this decision by

the Third Circuit was against coverage, there was

actually some overlap between the Third and Eighth

Circuits’ reasoning. Both required more than the potential for contamination. However, the Third Circuit’s

narrow standard is not satisfied by the touching of

the contaminants with the property and threat of harm.

Instead, the standard goes a step further and requires

actual contamination or imminent danger of contamination. This requirement suggests that occupants of

the property were or could have been harmed by

asbestos fibers inside the property for there to have

been a physical loss.

2. The Fifth Circuit

In Hartford Ins. Co. of Midwest v. Mississippi

Valley Gas Co. , the Fifth Circuit noted that “the

primary source of disagreement between the parties”

was how the loss should be characterized. 181 Fed.

Appx. 465, 469 (5th Cir. 2006). Mississippi Valley

Gas Co. made a claim for the theft by means of a tap

installed past the meter of the gas line, which

16

reintroduced gasoline back into the gas stream, causing

it to be re-metered and resold to the insured. Id. at

467. The Fifth Circuit began that analysis with the

question presented here, i.e. the “threshold concept”

of physical loss or damage to covered property. Id. at

470. The Fifth Circuit similarly reached the narrow

interpretation that “direct physical loss” required a

physical manifestation of damages and not “mere

monetary losses”. Id.

3. The Sixth Circuit

In Universal Image Productions, Inc. v. Federal

Ins. Co., the Sixth Circuit affirmed the lower court’s

decision that mold and bacterial contamination alone

did not constitute physical loss. 475 Fed.Appx. 569

(6th Cir. 2012). In its analysis, the Sixth Court cited

to de Laurentis v. United Services Auto. Ass’n. for

that case’s definition of direct “physical loss”, which

required “tangible damage” to property. Id. at 573

(citing de Laurentis, 162 S.W.3d 714, 723 (Tex.Ct.App.

2005)). Just like the Third Circuit, the Sixth Circuit

was without state law guidance and reached its narrow

interpretation predicated on Michigan law. As such,

along with accepting the de Laurentis definition of

physical loss, the Sixth Circuit agreed with the

Third Circuit’s Port Authority case discussed above

and imposed the heightened standard that, even without the strict “tangible damage” definition, the property

must be rendered “uninhabitable” or substantially

“unusable” for there to be a physical loss. Universal

Image, 475 Fed.Appx 569 at 574.

17

4. The Seventh Circuit

In Windridge of Naperville Condo. Ass’n v. Philadelphia Indem. Ins. Co., the Seventh Circuit ruled on

similar issues as those analyzed by the Tenth Circuit

in Adams-Arapahoe Sch. Dist. In Windridge, the

dispute stemmed from whether the siding on all four

sides of the buildings needed to be replaced rather

than only the portion of the siding damaged by hail.

932 F.3d 1035 (7th Cir. 2019). While Windridge dealt

with material matching issues, the result was the

same in that both Circuits found that the undamaged

portions of the property required replacement but

was not deemed direct physical loss to property. Id. The

decision in Windridge was based on a more restrictive

interpretation of the policy terms. The Seventh Circuit

held that physical loss “generally refers to tangible

as opposed to intangible damage”. Id. at 1040.

5. The Ninth Circuit

In Great Northern Ins. Co. v. Benjamin Franklin

Federal Savings & Loan Ass’n, the Ninth Circuit

analyzed an asbestos claim in the context of defining

“direct physical loss”. 953 F.2d 1387 (9th Cir. 1992).

There, the Court held that the necessity for cleaning

up of asbestos was not a direct physical loss. Id.

Notably, the Ninth Circuit relied on the Oregon

Supreme Court case of Wyoming Sawmills, Inc. v.

Transportation Insurance Co., 578 P.2d 1253 (Or.

1978). However, the Ninth Circuit pointed out that in

Wyoming Sawmills, the policy defined property

damage as “physical injury to . . . tangible property.”

Great Northern, 953 F.2d at *1. While the Ninth

Circuit’s opinion regarding physical loss matches those

of the Third, Fifth Sixth, Seventh and Eleventh, the

18

basis for the ruling stems from specific policy

definitional language that is absent from the case at

bar. The Ninth Circuit’s opinion favors the insurance

carriers, but the reasoning supports Petitioner’s

argument. It proves that insurance carriers have the

capability of writing specific exclusionary language

into the policy. Their failure to do so cannot be

construed to the detriment of the insured.

6. The Eleventh Circuit

While the background and holding in this case

have already been discussed in detail supra, the

Eleventh Circuit’s finding that the touching of the

property by construction dust and debris, thereby

damaging and impairing the use of the property,

would have certainly met the definition of “direct

physical loss” set forth by the First, Eighth and Tenth

Circuits. The First Circuit’s opinion in BloomSouth,

the Eighth Circuit’s opinion in Main Street, and the

Tenth Circuit’s opinion in Adams-Arapahoe all have

a common thread: all of these circuits look beyond

the tangible or intangible nature of the damage and

look to the effect the loss had on the insured property.

The invisible but permeating odor in BloomSouth,

the impairment of the milk products in Main Street

by potential contamination, and the presence of

corrosion with no resulting damage in AdamsArapahoe, all show that these Circuits are rightfully

focused on the underlying purpose of insurance

rather than a strict, draconian interpretation of the

word “physical”.

The Opinion adopted the Sixth Circuit’s interpretation discussed above to reject harmful contact

that “could be cleaned” as a damage, as well as the

19

Third Circuit’s requirement that the property be

uninhabitable or unusable. These standards are

undeniably more restrictive to coverage than those

endorsed by the circuits listed in section I.A. above.

Although all the cases listed involve the analysis of

state law, the question presented is universal to all

cases. Each discusses the same phrase: “direct physical

loss.” And each gives an interpretation of the phrase

and a standard to meet that interpretation. These

conflicting interpretations are proof that there is a

ripe and existing need for this Court to answer the

important questions presented below and finally

resolve the conflict between the Circuits.

II. W HY THE E LEVENTH C IRCUIT ’ S O PINION I S

INCORRECT.

The Eleventh Circuit directly ignored a specifically contemplated type of loss contained in the

insurance policy. This excising of the very protections

bargained for in the subject all-risk policy has

significant implications for the insurance industry, and

the decision below reflects a troubling receding from

insurance policy coverages.

Dust is a specifically contemplated and covered

type of risk in this insurance policy. The insurance

policy covers “Risks of Direct Physical Loss unless

the loss is (1) Excluded in Section B., Exclusions; or

(2) Limited in Section C., Limitations”. App.137a. In

other words, all causes of loss are covered unless

expressly excluded or limited by the insurance policy.

See Great Lakes Reinsurance (UK) PLC v. Kan-Do,

Inc., 639 F. App’x 599, 601 (11th Cir. 2016) (In broad

terms, all-risk insurance policies cover all fortuitous

losses, unless the policy contains a specific provision

20

expressly excluding the loss from coverage.); Morrison

Grain Co. v. Utica Mut. Ins. Co., 632 F.2d 424, 430

(5th Cir. 1980) (same). As stipulated, (1) “[t]here was

roadwork construction on S.W. 27th Avenue which is

adjacent to Berries’ restaurant” and (2) that “[d]ust

and debris generated by roadway construction migrated

onto Berries’ premises”. App.2a. Thus, the issue is

whether the damaging touching of construction dust

and debris constitutes “direct physical loss” to trigger

coverage under the insurance policy.

The term “direct physical loss” is not defined in

the insurance policy. However, the Eleventh Circuit

erroneously concluded that “direct physical loss” does

not include cleaning and/or requires the extraordinary

step that the property be rendered “uninhabitable” or

substantially “unusable”. App.45a-46a. This finding

is contradicted by the types of damages contemplated

and provided for in the insurance policy along with

cases from other jurisdictions that recognize “direct

physical loss” can occur in the absence of structural

damage.

A. Policy Language.

Pertinently, the insurance policy contemplates

construction dust as direct physical loss when the

policy limits dust coverage to interiors. App.152a.

Given the existence of exclusionary language dealing

only with the interiors, construction dust damage to

the exteriors would fall under the purview of “Risks

of Direct Physical Loss” and thus be covered. If dust

and debris could simply be cleaned by wiping it up to

remedy the damage to the property, then the

following limitation would not need to exist in the

insurance policy’s Causes of Loss-Special Form:

21

Causes of Loss—Special Form. C. Limitations.

1. We will not pay for loss of or damage to

property, as described and limited in this

section. In addition, we will not pay for any

loss that is a consequence of loss or damage

as described and limited in this section . . . c.

The interior of any building or structure . . .

caused by or resulting from . . . dust, whether

driven by wind or not . . .

App.152a (emphasis added).

In fact, Sparta acknowledged dust as a category

of damage where it drafted a specific exclusion

addressing same. Within the general liability coverage

section of the insurance policy, there is a lengthy

silica or silica-related dust exclusion. App.197a198a. Conversely, the policy’s building and business

interruption coverage sections do not contain this

detailed exclusion. This is another example of where

dust and debris are contemplated as physical damage.

It must necessarily follow that construction dust is

an acknowledged and accounted for category of direct

physical loss.

Elsewhere, “Pollutants” is defined in the insurance

policy’s Building and Personal Property Coverage

Form as “any solid, liquid, gaseous or thermal irritant

or contaminant, including smoke, vapor, soot, fumes,

acids, alkalis, chemicals and waste”. App.107a. Coverage for clean-up of “pollutants” is limited, not excluded,

by the policy as follows:

4. Additional Coverages d. Pollutant Cleanup and Removal. We will pay your expense

to extract “pollutants” from land or water at

the described premises if the discharge, dis-

22

persal, seepage, migration, release or escape

of the “pollutants” is caused by or results from

a Covered Cause of Loss that occurs during

the insurance policy period . . . The most we

will pay under this Additional Coverage for

each described premises is $10,000 for the

sum of all covered expenses . . .

App.133a.

While dust is not a pollutant, this is a crystalclear example that damage which requires cleaning

is covered. The “Additional Coverages” section of the

insurance policy also provides coverage for debris

removal-another type of cleaning:

4. Additional Coverages. a. Debris Removal

(1) Subject to Paragraphs (3) and (4), we

will pay your expenses to remove debris of

Covered Property caused by or resulting

from a Covered Cause of Loss that occurs

during the insurance policy period.

App.71a. The Opinion renders entire areas of coverage

nonexistent, contrary to the express terms of the

policy. To require permanent tangible destruction of

property as a condition precedent to insurance coverage

strips Petitioner, and policyholders across the country,

of protections specifically contemplated and bargained

for.

Given that all losses are covered by an all-risk

insurance policy unless specifically limited or

excluded, and dust is a contemplated type of damage,

it follows that exterior dust damage, the very damage

claimed in this case, is covered. Sparta, as the insurance policy drafter, is aware that dust is a potential risk

which had to be addressed through specific limitations

23

and exclusions. App.152a; App.197a-198a. As the

drafter of the insurance policy, Sparta is held to the

terms set forth therein. See Aschenbrenner v. U.S.

Fidelity & Guar. Co., 292 U.S. 80, 86 (1934) (“The

insurer has chosen the terms, and it must be held to

their full measure in this clause, as in any other,

whether its promise be for more or less”). Sparta

could have, but did not, include an exclusion or

limitation for exterior dust damage in the policy’s

building and personal property section. At a

minimum, where an ambiguity exists based on

whether dust constitutes a covered risk in the

insurance policy, a construction more favorable to

the insured is adopted. Id. at 85; see also Aetna Ins.

Co. v. Boon, 95 U.S. 117, 123 (1877). To the extent any

ambiguity arises from whether dust damage is

covered, the ambiguity must be construed in favor of

the Petitioner as the non-drafting party.

Even though the lower court concluded that

“direct physical loss” does not include cleaning, the

policy repeatedly contemplates causes of loss that are

remedied through cleaning, not repair or replacement. App.71a, 107a, 133a. The lower court relied

on Florida state law for the proposition that the

property must be rendered uninhabitable or unusable,

effectively requiring a total loss before coverage. App.

20a-21a. This stands in contrast to provisions for

coverage in the policy. The policy’s Business Income

(And Extra Expense) Coverage Form contemplates

that losses may occur which result in a mere slowdown

of business activities, not a complete cessation.

App.134a. For example, soot or smoke damage

resulting from a fire would require cleaning, just like

water, mold, dust, or debris. Once again, the lower

24

court’s holding results in a significant excision of

coverage contemplated and bargained for in the

insurance policy.

In sum, the lower court erred in holding that

coverage cannot be extended for cleaning pertaining

to construction dust and debris damage. Given that

the insurance policy is replete with provisions extending

and excluding coverage for dust, cleaning, and business

slowdowns, Petitioner’s underlying claim is covered.

III. THE IMPORTANCE OF RESOLVING THE CONFLICT

BETWEEN CIRCUITS REGARDING WHAT CONSTITUTES

“DIRECT PHYSICAL LOSS”.

As noted above, the Eleventh Circuit’s opinion in

Mama Jo’s, Inc. v. Sparta Insurance Company has been

cited over 50 times throughout the country in cases

involving COVID-19 claims. Clearly, there are other

issues involved in the ongoing and relatively young

debate regarding coverage of claims stemming from

COVID-19 that distinguish it from the case at bar.

However, relevant to the matter at hand, several

district courts have relied on the Opinion as a basis for

rejecting that a virus’ touching of property constitutes

a physical loss. For example, the District Court of

Kansas has followed a more restrictive approach to

physical loss in the face of COVID-19. Promotional

Headwear International v. The Cincinnati Ins. Co., No.

20-CV-2211-JAR-GEB, 2020 WL 7078735 (D. Kan.

Dec. 3, 2020). The district court held as follows:

The Court follows the majority of courts to

consider identical policy language in the

context of COVID-19 and holds that direct

physical loss or damage to the property

requires a tangible, actual change to or

25

intrusion on the covered property. Like the

restaurant in Mama Jo’s, Plaintiff alleges no

loss or damage to the property that required

repair or replacement based on an actual or

tangible problem with the premises.64 And

like the plaintiffs in Pentair and Source Food,

Plaintiff suffers purely economic damages

due to temporary loss of use, not a direct,

physical change or intrusion onto the property.

Id. at *7.

This is one of many examples of district courts

employing the instant case as a basis for their determination that the mere touching of the property by

the virus is insufficient to constitute a physical loss

in the absence of tangible destruction of property.

Petitioner does not suggest that the issues involved

in this dispute are directly akin to the issues involved

in COVID-19 claims. Yet, this Court is in the position

to resolve this ripe and intersecting question of law.

The Opinion affects the rights of millions of property and business owners who have insured their assets

with all-risk policies. Potentially billions of dollars of

proceeds are inextricably tied to the interpretation of

the term “physical loss”. The Circuits discussed above

have been faced with the same question and have

reached two different answers. What would ordinarily

be a state law question has become a federal question

of policy interpretation that can and should be

answered by this Court.

26

IV. WHY THE ELEVENTH CIRCUIT MISAPPLIED IMPORTANT DAUBERT PRINCIPLES.

This Court’s decision in Daubert established a

court’s gatekeeping function regarding expert testimony. However, this gatekeeper role was not intended

to supplant the adversary system or the rule of the

jury as “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, 506 U.S. at 596; Cooper v. Carl A. Nelson &

Co., 211 F. 3d 1008, 1021 (7th Cir. 2000) (same). As

recognized by the Rules of Evidence, “the rejection of

expert testimony is the exception, rather than the

rule”. Fed. R. Evid. 702 advisory committee notes

(2000).

Here, the Eleventh Circuit erred when, contrary

to the reasoning of this Court and the Seventh

Circuit, it affirmed the district court prejudging the

proffered testimony of Berries’ causation experts with

a heightened but undefined testing requirement. For

example, although Berries’ audio/lighting expert testified at length about how his experience with similarly

damaged lighting and audio systems allowed him to

auditorily assess damaged speakers based on the

unique sound such speakers make, the district court

excluded his opinions as “unreliable” because it felt

that Mr. Posada should have conducted “quality control

diagnostic testing”. App.32a-33a. In affirming the

district court’s ruling, the Eleventh Circuit implicitly

imposed a heightened testing standard as a precondition to admissibility of expert testimony under Daubert.

However, both this Court and the Tenth Circuit have

adopted a different, and far less restrictive, standard

27

that does not necessarily require heightened testing.

Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150

(1999) (“relevant reliability concerns may focus upon

personal knowledge or experience”); Bitler v. A.O.

Smith Corp., 400 F. 3d 1227, 1236 (10th Cir. 2005)

(holding that “testing is not necessary in all instances

to establish reliability under Daubert ” ); Orth v.

Emerson Elec. Co., 980 F. 2d 632, 637 (10th Cir. 1992)

(lack of testing goes “to the weight the trier of fact

should accord the evidence and do[es] not make the

testimony incredible”).

With respect to Berries’ awning expert, Chris

Thompson, the district court found that Mr. Thompson

was qualified but excluded his opinions as “unreliable”

based on the weight the district court afforded to his

opinions. Although the parties stipulated that construction dust and debris migrated onto the Berries

restaurant, the district court opined that Mr.

Thompson’s visual observations of the awning damage

were not reliable. App.35a-38a. However, the district

court ignored Mr. Thompson’s well-reasoned opinions

on how the construction dust and debris affected the

restaurant’s awning system, such as discoloration

and shrinking of the awning fabric. [D.E. 108-3]. As

before, the district court criticized Mr. Thompson for

not taking samples of the observed construction dust

and debris and conducting lab tests of construction

materials. App.35a-38a. Such rigorous testing was

not required, particularly given that the presence of

such dust and debris was an undisputed fact. [D.E.

143].

With respect to Berries’ engineering/causation

expert, Alfredo Brizuela, P.E., his credentials were

never in dispute. The district court again prejudged

28

Mr. Brizuela’s proffered opinions. The district court

opined that Mr. Brizuela did not have the particularized

knowledge that roadway construction dust can cause

the type of damage found at the restaurant. App.

38a-41a. Yet, this conclusion fails to account for Mr.

Brizuela’s testimony about (1) his prior experience

with cases involving similar damage cause by aerosolized construction dust and (2) how construction dust

and debris aerosolized, migrated and combined with

water to turn into a corrosive paste that bonded to

the metal, paint, glass and other materials at the

property. [D.E. 108-5]. The district court also excluded

Mr. Brizuela’s opinions because he did not perform

chemical testing. App.38a-41a. As recognized by this

Court and the Tenth Circuit, such rigorous lab

testing is not always required. Kumho, 526 U.S. at 150;

Bitler, 400 F. 3d at 1236. Mr. Brizuela testified that

he performed visual and tactile testing, as employed

by Sparta’s own expert, and how such testing and his

experience in forensic engineering led him to the

result that the construction dust and debris damaged

the property. [D.E. 108-5 at 98:11-112:21].

Daubert and its progeny are at the very core of

federal jurisprudence. Here, the Eleventh Circuit

modified the Daubert standard by adopting a

heightened testing requirement that conflicts with

this Court, as well as the Seventh and Tenth Circuits.

Therefore, this case presents a superior vehicle for

resolving this conflict.

29

CONCLUSION

For the foregoing reasons, Petitioner, Mama Jo’s

Inc. d/b/a Berries respectfully requests that this Court

grant its petition for writ of certiorari.

Respectfully submitted,

LEONARDO H. DA SILVA, II

COUNSEL OF RECORD

BRIAN C. COSTA

MIGUEL R. LARA

CHRISTOPHER A. MARTINEZ

ALVAREZ FELTMAN DA SILVA & COSTA, P.L.

2525 S.W. 27TH AVENUE, SUITE 200

MIAMI, FL 33133

(786) 409-6000

LEO@AFDC.LEGAL

COUNSEL FOR PETITIONER

JANUARY 14, 2021