The opinion of the court was delivered by: Alesia, District Judge.
MEMORANDUM OPINION AND ORDER
Plaintiff Spearman Industries, Inc. ("plaintiff") experienced
storm damage on the roof of its Lake Bluff Racquet Club in early
January 1999 and made a claim under its insurance policy with St.
Paul Fire and Marine Insurance Company ("defendant"). Plaintiff
maintains its roof was damaged by a winter storm and should be
replaced at defendant's cost, while defendant maintains that the
damage was caused by wear and tear or deterioration, not by the
storm, and is not covered under the insurance policy. Therefore,
the dispute in this lawsuit is whether the plaintiff has
insurance coverage for all or just a portion of the damage to the
roof. Currently before the court are (1) plaintiff's two motions
in limine and (2) defendant's two motions in limine. The
court addresses each motion in turn.
A. Plaintiff's Motions in Limine
1. Plaintiff's Motion in Limine No. 1
Specifically, plaintiff seeks to exclude two topics from
Dickson's testimony. First, plaintiff seeks to exclude from
evidence Dickson's opinion "[t]hat it would take hurricane force
winds — 120 to 150 miles per hour — to cause insulation to
shuffle on this sort of roof, and if it did shuffle in the manner
claimed by [plaintiff] the entire roof would have been blown
away, and there would be other evidence of structural damage."
(Pl.'s Mot. at 1, citing Dickson Dep. at 66-72.) Second,
plaintiff seeks to exclude from evidence Dickson's opinion
"[t]hat the gaps between the lap seams and alligator cracking
were on that roof for `maybe up to a year', and that the air
bubbles had been there at least since the summer of 1998." (Pl.'s
Mot. at 2, citing Dickson Dep. at 88-91.)
Federal Rule of Evidence 702 ("Rule 702") governs expert
testimony. Effective December 1, 2000, substantial amendments to
Rule 702 took place, and the rule reads as follows:
If scientific, technical, or other specialized
knowledge will assist the trier of fact to understand
the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify
thereto in the form of an opinion or otherwise, if
(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.
The rejection of expert testimony is the exception rather than
the rule, and "the trial court's role as gatekeeper is not
intended to serve as a replacement for the adversary system."
FED. R. EVID. 702 advisory committee's note. 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."
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 595, 113
S.Ct. 2786, 125 L.Ed.2d 469 (1993). Although the court serves a
gate-keeping function, the court's focus is on the expert's
methodology, while the "soundness of the factual underpinnings of
the expert's analysis and the correctness of the expert's
conclusions based on that analysis are factual matters to be
determined by the trier of fact." Smith v. Ford Motor Co.,
215 F.3d 713, 718 (7th Cir. 2000) (citing Daubert, 509 U.S. at 595,
113 S.Ct. 2786).
In this case Dickson has formed an opinion — based on his
experience with roofs in general and his inspection of the
particular roof in question — as to what caused the damage to the
roof. (Dickson's Dep. at 74-91.) It is not this court's job to
determine whether his opinion is correct — it is the plaintiff's
job to attack the validity of his opinion on cross-examination.
See Smith, 215 F.3d at 718 (holding that it is not the court's
role to decide whether an expert's opinion is correct). Thus,
Dickson will be allowed to testify regarding both these opinions.
Accordingly, the court denies plaintiff's first motion in
2. Plaintiff's Motion in Limine No. 2
Plaintiff's second motion in limine seeks to bar certain
opinion testimony and records of Ron Kurucz and/or RRK &
Associates (collectively "Kurucz"). Both parties agree that, in
accordance with plaintiff's request, Kurucz, the owner of RRK &
Associates, appraised the damage to the roof, but the parties
disagree whether plaintiff ever paid or formally retained Kurucz.
Plaintiff argues that any opinion of Kurucz is inadmissible under
Rule of Civil Procedure 26(b)(4)(B) ("Rule 26(b)(4)(B)") because
defendant cannot demonstrate the requisite "exceptional
circumstances" under which it is impracticable for defendant to
obtain facts or opinions relating to the appraisal of the roof by
other means. Defendant argues that Rule 26(b)(4)(B) is
inapplicable because plaintiff never retained Kurucz to act as an
expert or an appraiser or in anticipation of litigation, and
plaintiff never paid Kurucz for any work ...