.... The Twelfth Case.
In a change-of-pace, Insurance Claims and Bad Faith Law Blog and Insurance Claims and Issues Weblog have been trading consecutive posts addressing a single common theme: Court rulings on Expert Witness Testimony and Reports in recent Insurance Cases. For the previously developed rules of law and judicial decisions on these issues, see generally as to Liability Insurance Cases, volume 1 Dennis J. Wall, Litigation and Prevention of Insurer Bad Faith § 8:17 (West Publishing 3d ed. 2011; 2012 Supplement in process), and see generally as to all types of First-Party Insurance Cases, volume 2 id. § 12:18.
Hurricane Wilma Professional Engineer Expert Disallowed.
In the case of Banta Properties, Inc. v. Arch Specialty Insurance Co., 2011 WL 7118542 (S.D. Fla. December 23, 2011), Download Banta Props, Inc. v. Arch Specialty Ins. Co. (S.D. Fla. Case No. 10.61485, Order Granting Daubert Motion for Exclusion, Filed Dec. 23, 2011) PUBLIC ACCESS, the District Court disallowed a Plaintiff Property Management Company's proffered Expert. The Expert in question is a Professional Engineer. She was proffered to testify to her Opinions "that Hurricane Wilma damaged windows and doors at Plaintiff's properties and as a result needed replacement." Id. at *1. The Defendant Insurance Company requested the Court to exclude her Expert Testimony on a number of different grounds.
In pertinent part, the Professional Engineer Expert could not satisfactorily attribute the Plaintiffs' claimed Damages to their claimed cause, Hurricane Wilma. The Court "agrees that Mellinger was unable to attribute damage to Hurricane Wilma with any degree of certainty and that she used an unreliable methodology. Therefore, the Court shall exclude her expert opinions." Id. at *2.
If an Expert is proffered on Damages, she should also offer acceptable Opinion Testimony as to what caused those Damages, or suffer the risk of not testifying at all, as in this case.
Parenthetically, the exclusion of this Expert's Testimony does not appear to have harmed the Plaintiff''s case very much. PACER, the online docket of the Federal Courts, reflects that the Jury returned a Verdict for the Plaintiff on January 30, 2012. The Verdict includes the Jury's finding that $4,000,000.00 or $4 Million is the amount of the Plaintiff's covered Damages resulting from Hurricane Wilma. On February 27, 2012, the Plaintiff filed a motion for entry of final judgment.
Part of a Series. To be continued ....
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