United States District Court, N.D. Oklahoma
OPINION AND ORDER
TERENCE C. KERN, United States District Judge.
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.
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.
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.,
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.
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.
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.
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).
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 “there is ...