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SPEARMAN INDUST. v. ST. PAUL FIRE AND MARINE INS.

January 23, 2001

SPEARMAN INDUSTRIES, INC., PLAINTIFF,
v.
ST. PAUL FIRE AND MARINE INSURANCE COMPANY, DEFENDANT.



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

Plaintiff's first motion in limine seeks to bar certain opinion testimony of defendant's expert, Timothy J. Dickson ("Dickson"), an engineer retained by defendant to form opinions regarding damage to the roof. Plaintiff argues that the opinions it seeks to exclude "are not based on any sort of scientific method or, for that matter, on Mr. Dickson's expertise or experience. They are nothing more than his `bottom line' conclusions, and therefore unreliable." (Pl.'s Mot. at 3.) Defendant, on the other hand, argues that Dickson's opinions are based on his observations of the roof in question as well as his experience and training.

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.

FED. R. EVID. 702.

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 limine.

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 ...


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