United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
M. YANDLE, United States District Judge
before the Court is Plaintiffs' Motion to Strike the
Supplemental Opinions of Defendants' Expert Witness (Doc.
275). Plaintiffs move to strike Defendants' expert G.
Patrick Murphy's supplemental report and to bar Murphy
from testifying at trial regarding any opinions set forth in
the supplemental report. Defendants have filed responses
(Docs. 279, 280). For the following reasons, the Motion is
2007, Plaintiffs filed a negligence action seeking to recover
for injuries resulting from a single vehicle rollover
accident on August 21, 2005 (“the underlying
action”) (see Turubchuk v. E.T. Simonds Const.
Co., 07-CV-216-WDS). Plaintiffs sued Defendants E.T.
Simonds Construction Company (“ETS”) and Southern
Illinois Asphalt Company, Inc. (“SIAC”), alleging
that Defendants were contractors on a State of Illinois road
construction project responsible for repaving a stretch of
Interstate 24. Plaintiffs alleged that the vehicle in which
they were riding went off the paved road in the construction
zone, slipped off of a severe edge drop-off, left the highway
and rolled. Plaintiffs alleged that Defendants were negligent
in performing the repaving.
time of the accident, ETS and SIAC carried insurance as a
joint venture through an insurance policy issued by
Bituminous Insurance Company. In addition to the Bituminous
policy, both defendants were individually insured through
Richard Green represented ETS and SIAC in the underlying
action. Plaintiffs were represented by Komron Allahyari. On
May 14, 2007, Allahyari made a $1, 000, 000.00 policy-limits
settlement demand after allegedly receiving confirmation from
Green that the Bituminous policy was the only policy
available to cover Plaintiffs' claims against the
defendants. On May 15, 2007, Green served Defendants'
Rule 26(a)(1) initial disclosures, which only identified the
Bituminous policy. Defendants never disclosed their
six years later, Plaintiffs filed the instant action seeking
damages for Defendants' failure to disclose their
individual policies in the underlying action. Plaintiffs
allege that if Defendants had disclosed the individual
policies, Plaintiffs would not have settled for what they
believed were “policy limits” of the only policy
disclosed to them. In the Second Amended Complaint,
Plaintiffs assert claims for intentional misrepresentation,
fraudulent concealment, negligent misrepresentation and
Rule of Evidence 702 provides for the admission of expert
testimony that assists the trier of fact to understand the
evidence or to determine a fact in issue. Fed.R.Evid. 702. In
Daubert v. Merrell Dow Pharmaceuticals, Inc., the
Supreme Court instructed courts to function as gatekeepers
and determine whether expert testimony should be presented to
the jury. Daubert v. Merrell Dow Pharm., Inc., 509
U.S. 579, 589 (1993). Courts function as gatekeepers of
expert testimony “to make certain that an expert,
whether basing testimony upon professional studies or
personal experience, 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, 147 (1999). In order to be
considered reliable, proposed expert testimony must be
supported on “good grounds.” Daubert,
509 U.S. at 590. Ultimately the reliability inquiry must be
tied to the particular facts of the case. Kumho
Tire, 526 U.S. at 150.
assessing reliability, a court must ensure that the proffered
expert testimony is “well-grounded in methods and
procedures” of the expert's technical discipline.
Chapman v. Maytag Corp., 297 F.3d 682, 687 (7th Cir.
2002). Moreover, for an expert proffered based on his
experience, “[i]t is critical under Rule 702 that there
be a link between the facts or data the expert has worked
with and the conclusion the expert's testimony is
intended to support.” United States v. Mamah,
332 F.3d 475, 478 (7th Cir. 2003) (citing Gen. Elec. v.
Joiner, 522 U.S. 136, 146 (1997)). As the Supreme Court
noted: “[N]othing in either Daubert or the
Federal Rules of Evidence requires a district court to admit
opinion evidence that is connected to existing data only by
the ipse dixit of the expert.” Gen.
Elec., 522 U.S. at 146. Stated another way, an expert
“who invokes ‘my expertise' rather than
analytic strategies widely used by specialists is not an
expert as Rule 702 defines that term.” Zenith Elec.
Corp. v. WH-T Broad. Corp., 395 F.3d 416, 419 (7th Cir.
2005); see also Mamah, 332 F.3d at 478 (“The
court is not obligated to admit testimony just because it is
given by an expert.”).
Seventh Circuit has consistently held that “[a]n expert
who supplies nothing but a bottom line supplies nothing of
value to the judicial process.” Zenith Elec.
Corp., 395 F.3d at 419-20 (collecting cases). Rather,
the expert 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.” U.S. v. Frazier, 387
F.3d 1244, 1261 (2004) (quoting Fed.R.Evid. 702 advisory
committee's note (2000 amends.) (emphasis added)).
Finally, an expert's qualification and experience alone
are not sufficient to render his opinions reliable.
Id. The testimony must also assist the trier of
fact. Id. at 1262.
assert that Murphy's Supplemental Report should be
stricken because he has not established the requisite
methodology or factual basis for his opinions, his opinions
are legal conclusions and speculative in nature, and the
opinions rely in large part on evidence already deemed
inadmissible by this Court in its rulings on Plaintiffs'
motions in limine. Murphy is an attorney in private
practice and a former Federal District Judge. In his
Supplemental Report, Murphy sets forth opinions regarding the
settlement value of the underlying action based upon the
information that was then reasonably available at the time
the action settled in 2007. First, Murphy opines that there
was no liability on the part of the “joint
venture” because the construction zone signing and
markings were done properly. He further opines that Plaintiff
Ludmila Nemtsova was the sole proximate cause of the
underlying accident. Regarding the settlement, Murphy opines
that Bituminous “made a business decision to settle the
case because everyone on the defense side thought there was
inadequate insurance (because of the joint venture) to cover
the potential loss - and they did not know of the Washington
state litigation.” Murphy also offers his opinion that
“if the participants in the putative joint venture were
backed by their own individual insurers with ample coverage,
the case would certainly not have settled for anything beyond
the cost to defend the case.”
an expert's reliance on experience alone does not
necessarily render his opinions unreliable, here, Murphy does
not explain the methodology or principles that support his
conclusions in either the Supplemental Report or his
deposition. Instead, he merely asserts bottom line
conclusions that the underlying case would not have settled
for anything beyond the cost to defend the case (which he
estimates to be approximately $300, 000), and that the
individual insurers would have ignored the time limit demand.
Murphy indicates that his opinion as to the settlement value
of the underlying case is based on his experience, but he
does not explain how he calculated the settlement value or
identify any of the factors he relied upon in arriving at his
estimated value. Attorneys customarily and routinely valuate
claims and cases for settlement based on a myriad of factors
- Murphy identified none. As such, the Court cannot conclude
that his opinion is reliable. He also fails to provide a
factual basis or to articulate how he reached the conclusion
that the insurance companies would have ignored the demand.
Murphy's experience-based testimony does not satisfy
Daubert's reliability standard because he has
not tied any specific aspects of his experience to his
conclusions. “If the witness is relying solely or
primarily on experience, then the witness 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.”
Fed.R.Evid. 702 advisory committee's notes. In other
words, an expert witness cannot merely present his
qualifications alongside his opinion; he must explain why the
application of his prior experience to the facts at hand
compel his final conclusions. Minix v. Canarecci,597 F.3d 824, 835 (7th Cir. 2010). Such an explanation is
required by Daubert, which requires the trial judge
to conduct a preliminary assessment of the validity of an
expert's reasoning or ...