Spearman Indust. v. St. Paul Fire and Marine Ins.

• Citation: 128 F.Supp.2d 1148
• Decision Date: 23 January 2001
• Docket Number: No. 00 C 1581.,00 C 1581.
• Parties: SPEARMAN INDUSTRIES, INC., Plaintiff, v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY, Defendant.
• Court: U.S. District Court — Northern District of Illinois

128 F.Supp.2d 1148

SPEARMAN INDUSTRIES, INC., Plaintiff, v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY, Defendant.

No. 00 C 1581.

United States District Court, N.D. Illinois, Eastern Division.

January 23, 2001.

Kevin John Moore, John David Silk, Rothschild, Barry & Myers, P.C., Chicago, IL, for Plaintiff.

Roderick T. Dunne, Cari J. Weitzman, Peterson & Ross, Chicago, IL, for Defendant.

MEMORANDUM OPINION AND ORDER

ALESIA, District Judge.

Plaintiff Spearman Industries, Inc. ("plaintiff") experienced storm damage on the roof of its Lake Bluff Racquet Club in early January 1999 and made a claim under its insurance policy with St. Paul Fire and Marine Insurance Company ("defendant"). Plaintiff maintains its roof was damaged by a winter storm and should be replaced at defendant's cost, while defendant maintains that the damage was caused by wear and tear or deterioration, not by the storm, and is not covered under the insurance policy. Therefore, the dispute in this lawsuit is whether the plaintiff has insurance coverage for all or just a portion of the damage to the roof. Currently before the court are (1) plaintiff's two motions in limine and (2) defendant's two motions in limine. The court addresses each motion in turn.

A. Plaintiff's Motions in Limine

1. Plaintiff's Motion in Limine No. 1

Plaintiff's first motion in limine seeks to bar certain opinion testimony of defendant's expert, Timothy J. Dickson ("Dickson"), an engineer retained by defendant to form opinions regarding damage to the roof. Plaintiff argues that the opinions it seeks to exclude "are not based on any sort of scientific method or, for that matter, on Mr. Dickson's expertise or experience. They are nothing more than his `bottom line' conclusions, and therefore unreliable." (Pl.'s Mot. at 3.) Defendant, on the other hand, argues that Dickson's opinions are based on his observations of the roof in question as well as his experience and training.

Specifically, plaintiff seeks to exclude two topics from Dickson's testimony. First, plaintiff seeks to exclude from evidence Dickson's opinion "[t]hat it would take hurricane force winds—120 to 150 miles per hour—to cause insulation to shuffle on this sort of roof, and if it did shuffle in the manner claimed by [plaintiff] the entire roof would have been blown away, and there would be other evidence of structural damage." (Pl.'s Mot. at 1, citing Dickson Dep. at 66-72.) Second, plaintiff seeks to exclude from evidence Dickson's opinion "[t]hat the gaps between the lap seams and alligator cracking were on that roof for `maybe up to a year', and that the air bubbles had been there at least since the summer of 1998." (Pl.'s Mot. at 2, citing Dickson Dep. at 88-91.)

Federal Rule of Evidence 702 ("Rule 702") governs expert testimony. Effective December 1, 2000, substantial amendments to Rule 702 took place, and the rule reads as follows:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

FED. R. EVID. 702.

The rejection of expert testimony is the exception rather than the rule, and "the trial court's role as gatekeeper is not intended to serve as a replacement for the adversary system." FED. R. EVID. 702 advisory committee's note. Rather, "[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence." Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 595, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Although the court serves a gate-keeping function, the court's focus is on the expert's methodology, while the "soundness of the factual underpinnings of the expert's analysis and the correctness of the expert's conclusions based on that analysis are factual matters to be determined by the trier of fact." Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir.2000) (citing Daubert, 509 U.S. at 595, 113 S.Ct. 2786).

In this case Dickson has formed an opinion —based on his experience with roofs in general and his inspection of the particular roof in question—as to what caused the damage to the roof. (Dickson's Dep. at 74-91.) It is not this court's job to determine whether his opinion is correct—it is the plaintiff's job to attack the validity of his opinion on cross-examination. See Smith, 215 F.3d at 718 (holding that it is not the court's role to decide whether an expert's opinion is correct). Thus, Dickson will be allowed to testify regarding both these opinions. Accordingly, the court denies plaintiff's first motion in limine.

2. Plaintiff's Motion in Limine No. 2

Plaintiff's second motion in limine seeks to bar certain opinion testimony and records of Ron Kurucz and/or RRK & Associates (collectively "Kurucz"). Both parties agree that, in accordance with plaintiff's request, Kurucz, the owner of RRK & Associates, appraised the damage to the roof, but the parties disagree whether plaintiff ever paid or formally retained Kurucz. Plaintiff argues that any opinion of Kurucz is inadmissible under Rule of Civil Procedure 26(b)(4)(B) ("Rule 26(b)(4)(B)") because defendant cannot demonstrate the requisite "exceptional circumstances" under which it is impracticable for defendant to obtain facts or opinions relating to the appraisal of the roof by other means. Defendant argues that Rule 26(b)(4)(B) is inapplicable because plaintiff never retained Kurucz to act as an expert or an appraiser or in anticipation of litigation, and plaintiff never paid Kurucz for any work performed. Defendant also argues, in the alternative, that even if Kurucz was retained as an expert in anticipation of litigation, exceptional circumstances exist because it appears the plaintiff is shopping for an expert.

Rule 26(b)(4)(B) states:

A party may, through interrogatories or by deposition, discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in Rule 35(b) or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.

FED. R. CIV. P. 26(b)(4)(B).

Rule 26(b)(4)(B) concerns experts retained or specially consulted in relation to trial preparations, but it also precludes discovery against experts merely consulted in preparation for trial but not retained or specially employed. The advisory committee's note to Rule 26 indicates that the rule's silence regarding experts merely consulted by a party, "precludes discovery against [this class of] experts...." FED.R.CIV.P. 26(b)(4)(B) advisory committee's note. Further, courts have consistently held that a party may not discover the identity of, facts known by, or opinions held by an informally consulted expert. See, e.g., Cox v. Piper, Jaffray & Hopwood, Inc., 848 F.2d 842, 845 (8th Cir. 1988); USM Corp. v. Am. Aerosols, Inc., 631 F.2d 420, 424-25 (6th Cir.1980); Ager v. Jane C. Stormont Hosp. and Training School for Nurses, 622 F.2d 496, 501 (10th Cir.1980). Therefore, the key inquiry under Rule 26(b)(4)(B) is whether the consultation took place in anticipation of litigation.

In determining whether an expert was hired in anticipation of litigation, the court must examine "the total factual situation in the particular case." Hartford Fire Ins. v. Pure Air on the Lake Ltd., 154 F.R.D. 202, 207 (N.D.Ind.1993). To conclude that an expert was hired in anticipation of litigation, a lawsuit need not have been filed, but there must have existed "more than a remote possibility of litigation." United States v. Bell, No. C94-20342 RMW, 1994 WL 665295, at *4 (N.D.Cal. Nov.9, 1994) (internal quotations omitted). In this case, Kurucz appraised the roof damage as part of a dispute resolution process involving two appraisers and an umpire.¹ The fact the parties were involved in an appraisal process and that this appraisal process itself was the subject of litigation shows not only that was there more than a remote possibility of litigation, but also that the parties were actually in the midst of litigation. Thus, Kurucz qualifies as a non-testifying expert consulted in anticipation of litigation or preparation for trial, and only exceptional circumstances would justify admission of the testimony and records of Kurucz under Rule 26(b)(4)(B).²

Under Rule 26(b)(4)(B), the party seeking discovery from the non-testifying expert consulted in anticipation of litigation "carries a heavy burden in demonstrating the existence of exceptional circumstances." Ager, 622 F.2d at 503 (internal quotations omitted). Exceptional circumstances are shown if the party seeking discovery is unable to obtain equivalent information from other sources. Eliasen v. Hamilton, 111 F.R.D. 396, 400 (N.D.Ill.1986) (internal quotation omitted). The party seeking discovery may meet this exceptional circumstances standard in one of two ways. First, the moving party may show that the object or condition at issue is destroyed or has deteriorated after the non-testifying expert observes it but before the moving party's expert has an opportunity to observe it. See Disidore v. Mail Contractors of Am., Inc., 196 F.R.D. 410, 417 (D.Kan.2000); Hartford Fire Ins., 154 F.R.D. at 207. Second, the moving party may show there are no other available experts in the same field or subject area. See Bailey v. Meister Brau, Inc., 57 F.R.D. 11, 14 (N.D.Ill. 1972) ...