United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
M. YANDLE UNITED STATES DISTRICT JUDGE
before the Court is Defendants Southern Illinois Asphalt
Company, Inc.'s Daubert Motion Regarding the Expert
Testimony of Komron Allahyari (Doc. 272). Defendant E.T.
Simonds Construction Company has joined the motion (Doc.
274). Plaintiff filed a response (Doc. 281). For the
following reasons, the Motion is DENIED.
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.
is a former attorney who represented the Plaintiffs in the
underlying action. He has been designated by Plaintiffs as a
non-retained expert to testify as to his opinions regarding
the reasonable settlement value of the underlying action had
Defendants disclosed their individual insurance policies at
the time the case settled in 2007. Defendants assert that
Allahyari's opinion testimony should be excluded because
(1) he relied on the flawed opinions of Edward Stevens, the
construction zone expert Allahyari utilized in the underlying
action; (2) his opinion that there was liability in the
underlying action is ipse dixit and based on
unfounded circular reasoning; (3) his opinions are not based
on a sufficiently reliable foundation; and (4) his opinions
as to the settlement value of the underlying claim are flawed
because judicial estoppel would have precluded the underlying
first contend that Allahyari's opinions are flawed
because in reaching his conclusion, he relied in part on
Edward Stevens - one of the liability experts Allahyari
retained in the underlying action. Stevens opined that an
abrupt pavement edge drop-off in the immediate vicinity of
the crash site violated contract plans, specifications, and
acceptable engineering practices and created an extra
hazardous risk. Defendants maintain that Stevens'
opinions that the contractors created an extra hazardous risk
are faulty and based on an incorrect interpretation of the
Standard Specifications for Road and Bridge Construction.
Defendants maintain that because Stevens' opinions are
flawed, Allahyari's reliance upon Stevens' opinions
is also unsound and unreliable. But “[t]he reliability
of data and assumptions used in applying a methodology is
tested by the adversarial process and determined by the jury;
the court's role is generally limited to assessing the
reliability of the methodology - the framework-of the
expert's analysis.” See Manpower, Inc. v.
Insurance Co. of Pennsylvania, 732 F.3d 796, 808 (7th
Cir. 2013). Thus Defendants' disagreements with
Stevens' ultimate conclusions are not a justifiable basis
to exclude Allahyari's opinions. Defendants may certainly
attempt to discredit Allahyari's reliance on Steven's
conclusions on cross-examination or in their own presentation
of the evidence.
next assert that Allahyari should be prohibited from
testifying that because the Defendants settled the underlying
action, there must have been liability. Defendants maintain
that such an opinion amounts to pure ipse dixit. An expert
asserts an ipse dixit opinion, if “the expert
asserts a bottom line conclusion, but lacks any articulable
facts to substantiate that conclusion or completely fails to
explain the reasoning or methods employed to reach that
conclusion.” United States v. Noel, 581 F.3d
490, 497 (7th Cir. 2009). Here, Allahyari testified that he
based his liability opinion on the reports of his
construction zone and accident reconstruction experts as well
as the fact that after sending his detailed demand to Richard