A Washington State appellate court issued an "Unpublished Opinion" which was made available by Westlaw in Firey v. Orozco, No. 33232-2-III, 2015 WL 5893664 (Wash. Ct. App., Div. 3, October 1, 2015). The appellate court's decision was to affirm the trial court's crucial refusal to give any weight to the opinions of two experts retained by the plaintiff homeowner. Although the trial judge read these opinions, the trial court gave them little weight before granting the defendants' ultimately dispositive motion for summary judgment.
The trial court ruled that because the two experts relied on the homeowner's opinion that the defendants' construction work was defective, and because the homeowner's opinion was inadmissible since she was not qualified to render it nor was it a fact, both experts' opinions were entitled to no weight. Firey v. Orozco, No. 33232-2-III, 2015 WL 5893664, *4 (Wash. Ct. App., Div. 3, October 1, 2015).
The reasons for the appellate court's affirmance of the trial court's ruling are all set forth here:
Here, the trial court considered the experts' declarations, but determined that the facts underlying the opinions were too speculative and therefore the opinions were insufficient to create a genuine issue of material fact. We agree. There is a central deficiency in these experts' declarations: It is obvious that both experts rely on the undocumented recollections of Ms. Firey as to the scope of work performed by each defendant and the resulting condition of the house after each defendant ceased its work. Neither expert saw the house immediately after Ms. Firey fired K & T Construction or after Crown Mobile ceased working. The pictures supposedly supporting their opinions are undated. The inadequacies of the two experts' factual foundations are further heightened by the undisputed fact that the two experts did not make any personal observations concerning either defendant's work until after several other contractors performed work, resulting in the likely alteration of K & T Construction's and Crown Mobile's work. Similar to Miller [Miller v. Likins, 109 Wash. App. 140, 149, 34 P.3d 835 (Wash. Ct. App. 2001)], we hold that the trial court properly determined that the experts' opinions were speculative because they lacked an adequate factual foundation and were, therefore, insufficient to create a genuine issue of material fact.
Firey v. Orozco, No. 33232-2-III, 2015 WL 5893664, *7 (Wash. Ct. App., Div. 3, October 1, 2015).
Although these rulings came in an "Unofficial Opinion," and although they did not come in an insurance case, the rulings both of the trial court and of the Washington State appellate court are persuasive and in line with rulings on expert testimony in insurance cases across the nation.
Please Read The Disclaimer. ©2015 by Dennis J. Wall, author of Litigation and Prevention of Insurer Bad Faith (3d ed. Thomson Reuters West in 2 Volumes, with 2015 Supplements), including Sections 8:17 and 12:18 addressing the issues surrounding expert testimony. All rights reserved.
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