United States District Court, D. Maryland
K. BREDAR, CHIEF JUDGE
insurance coverage dispute-arising after a fire demolished
several buildings at the Baltimore facility of Adell
Plastics, Inc.-continues. Adell was the insured under a
commercial property insurance policy issued by the Mt. Hawley
Insurance Co. But, in January 2017, Mt. Hawley sued Adell,
seeking a declaration that, under its insurance policy, Mt.
Hawley owed no coverage, and seeking a recoupment of a
substantial advance payment. Adell filed a counterclaim,
alleging that Mt. Hawley had breached the insurance contract
and had acted with a lack of good faith. Trial is set to
begin on July 8, 2019. Pending before the Court are the
parties' pretrial motions. In this Memorandum, the Court
addresses the seven motions to exclude the testimony of eight
expert witnesses. The issues have been fully briefed, and no
hearing is required. See Local Rule 105.6 (D. Md.
2018). For the reasons set forth below, the Court will grant
Adell's motion to exclude the expert testimony of Jeffrey
W. Stempel and deny the six other motions, pursuant to
Federal Rule of Evidence 702.
Standard of Review
702 allows a witness "who is qualified as an expert by
knowledge, skill, experience, training, or education" to
testify "in the form of an opinion or otherwise"
(a) the expert's scientific, technical, or other
specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue; (b)
the testimony is based on sufficient facts or data; (c) the
testimony is the product of reliable principles and methods;
and (d) the expert has reliably applied the principles and
methods to the facts of the case.
district court's role is to ensure "that an
expert's testimony both rests on reliable foundation and
is relevant to the task at hand." Daubert, 509
U.S. at 597. "This entails a preliminary assessment of
whether the reasoning or methodology underlying the testimony
is scientifically valid and of whether that reasoning or
methodology properly can be applied to the facts in
issue." Id. at 592-93. This basic gatekeeping
obligation applies to all expert testimony, not just
scientific testimony. Kumho Tire Co. v. Carmichael,
526 U.S. 137, 147 (1999).
relevant, or helpful, an expert opinion must have a valid
connection to the pertinent inquiry. Belville v. Ford
Motor Co., 919 F.3d 224, 232 (4th Cir. 2019). To be
reliable, an "expert opinion must be based on
scientific, technical, or other specialized
knowledge and not on belief or speculation, and
inferences must be derived using scientific or other valid
methods." Oglesby v. General Motors Corp., 190
F.3d 244, 250 (4th Cir. 1999). The district court enjoys wide
latitude in determining what indicia of reliability it will
require in a given case. See Nease v. Ford Motor
Corp., 848 F.3d 219, 229 (4th Cir. 2017). Those indicia
(1) whether a theory or technique can be (and has been)
tested; (2) whether the theory or technique has been
subjected to peer review and publication; (3) whether a
technique has a high known or potential rate of error and
whether there are standards controlling its application; and
(4) whether the theory or technique enjoys general acceptance
within the relevant community.
Fireman's Fund Ins. Co. v. Tecumseh Prods. Co.,
767 F.Supp.2d 549, 553 (D. Md. 2011) (quoting Kumho
Tire, 526 U.S. at 149-50). II. Analysis Adell moves to
exclude six of Mt. Hawley's expert witnesses, and Mt,
Hawley moves to exclude two of Adell's expert witnesses,
who coauthored a single expert report. The Court assesses the
admissibility of each expert opinion in turn.
moves to exclude the expert testimony of Mark Newton. (Mot.
Exclude Newton, ECF No. 161.) Newton is a Certified Public
Accountant, who has testified in over 150 cases and who was
retained by Mt. Hawley to evaluate the records related to
Adell's insurance claims. (Newton Report at 3, ECF No.
challenges the relevancy and reliability of Newton's
testimony. Adell argues Newton's testimony is irrelevant
because Newton does not attempt to calculate the "actual
amount" of damage caused by the fire. (Mot. Exclude
Newton at 6.) Adell argues the testimony is unreliable
because Newton limited his review to incomplete data,
(id. at 8), an argument which Mt. Hawley disputes,
asserting Newton reviewed the whole record, (Opp. Mot.
Exclude Newton at 12-13, ECF No. 185). Adell misunderstands
the purpose of Newton's testimony. Newton has employed
his accounting expertise to review discovery materials and
calculate the loss that Adell has documented. (Newton Report
at 3, 7.) Newton readily acknowledges the actual loss may
be' more than he has calculated:
I've been asked to address or evaluate the documentation
that Adell has produced, and to determine how much of their
claimed losses that they're making here I can document.
And, so it's far less than what is being claimed-what
I've been able to document is far less than what's
being claimed. I do think, in my mind, in looking at the
documents and reports and so forth that the losses probably
exceed what ...