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Surfside Japanese Auto Parts and Service v. Berkshire Hathaway Homestate Insurance Co.

United States District Court, N.D. Oklahoma

October 25, 2019



          TERENCE C. KERN, United States District Judge.

         Before the court are the Motion to Bar Date of Loss Opinions of Kelly Parker and the Motion to Bar Date of Loss Opinions of George Parrish filed by Defendant Berkshire Hathaway Homestate Insurance Company (“BHHIC”) Docs. 42, 45. Plaintiff Surfside Japanese Auto Parts and Service opposes the motions. Docs. 50, 52.

         I. Background

         Plaintiff is insured under BHHIC Commercial Property Insurance Policy No. 01PRM30729-01 (the “Policy”), effective from August 15, 2016 to August 15, 2017 (“Policy Period”). Ex. A, p. 4. The Policy provides coverage for direct physical loss of or damage to covered property during the Policy Period, subject to all terms, conditions, limitations and exclusions set forth in the Policy. Id., p. 27.

         Plaintiff owns an automobile repair facility located at 6247 E. 15th Street, Tulsa, Oklahoma 74112. Id., Ex. B, Murphy Dep., 5:22-25, 7:9-12. The building has three metal roof sections: a south section built in 1959, a middle section built in 1984 and a north section built in 1989. Id., 11:8-14. Plaintiff claims that a hail storm damaged its metal roofs in April or May of 2017. Plaintiff's retained expert, Kelly Parker, and a roofing contractor, George Parrish, have both opined that the damage was caused by hail storms that occurred in April of 2017. According to Parker, hail stones must be at least .75 inches in size to cause damage to a metal roof. Ex. C, Parker Dep., 36:18-20.

         II. Applicable Law

         Rule 702 of the Federal Rules of Evidence provides:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(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.

         When an objection to an expert's testimony is raised, the court must perform Daubert gatekeeper duties before the jury is permitted to hear the evidence. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-93 (1993); Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 149 (1999). The proponent of the testimony bears the burden of establishing its admissibility. United States v. Nacchio, 555 F.3d 1234, 1241 (10th Cir. 2009) (en banc); Fed.R.Evid. 104(a). A trial court's gatekeeper's duty requires two separate inquiries: (1) whether the witness is qualified to offer the opinions he is espousing and (2) whether the proponent of the witness has proven by a preponderance of the evidence that its witness's opinions are both relevant and reliable. Kumho Tire, 526 U.S. at 141, 152.

         In Daubert, the Supreme Court identified four nonexclusive factors the trial court may consider to assist in the assessment of reliability: (1) whether the opinion at issue “can be (and has been) tested;” (2) whether the theory or technique has been subjected to peer review and publication; (3) in the case of a particular scientific technique, the known or potential rate of error; and (4) the degree of acceptance of the opinion within the relevant scientific community. 509 U.S. at 593-94. See also Bitler v. A.O. Smith Corp., 400 F.3d 1227, 1233 (10th Cir. 2004). “Under Daubert, any step that renders the analysis unreliable . . . renders the expert's testimony inadmissible. This is true whether the step completely changes a reliable methodology or merely misapplies that methodology renders the expert's testimony inadmissible.” Goebel v. Denver and Rio Grande western R. Co., 346 F.3d 987, 992 (10th Cir. 2003).

         This list is not exclusive, and district courts applying Daubert have broad discretion to consider a variety of other factors. Dodge v. Cotter Corporation, 328 F.3d 1212, 1222 (10th Cir. 2003) (citing Kumho Tire, 526 U.S. at 150). “[T]he test of reliability is ‘flexible,' and Daubert's list of specific factors neither necessarily nor exclusively applies to all experts or in every case. Rather, the law grants a district court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination.” Kumho Tire, Id. at 141-42 (emphasis in original).

         An expert's testimony may be excluded where it is based on subjective beliefs or unsupported speculation which is no more than ipse dixit guesswork. General Elec. Co. v. Joiner,522 U.S. 136, 146 (1997) (holding that trial court may properly exclude ipse dixit opinions where ‚Äúthere is ...

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