Significance of Expert's Prior Failure To Achieve FRE 702 Qualification To Testify

In state contract litigation, excluding testimony of plaintiff’s expert witness as unreliable and unqualified without conducting a formal Daubert hearing; excluding expert based on actions by four other judges in the district who excluded the same expert’s proffered testimony in similar contract litigation, in Nunez v. Allstate Ins. Co., 604 F.3d 840 (5th Cir. April 20, 2010) (No. 09-30034)

In the case, plaintiffs Nunez carried “flood and all-risk home owner’s policies” with defendant Allstate on their Louisiana home. After Hurricane Katrinka destroyed their home, they received from the defendant various payments on the policies they carried on the property. The plaintiffs moved out of Louisiana after the destruction and used their recovery money to buy a house in Houston. However, the plaintiffs intended to keep their Louisiana house and to restore it. Along with other similarly situated plaintiffs, the Nunez filed suit against the defendant to recover damage payments on their Louisiana property to which they felt entitled by their insurance coverage. In this connection, the plaintiffs furnished an expert report by their expert Mr. Steve Hitchcock. The defendant filed a motion to exclude the expert’s testimony and for summary judgment. The trial court granted both motions, excluding the expert testimony and then granting the motion because of the lack of evidence as to deficient damage payments. The plaintiffs appealed, contending exclusion of the expert was erroneous.

The Fifth Circuit affirmed the exclusion of the expert evidence and the resulting grant of summary judgment for the defendant. Noting the applicability of FRE 702, the circuit cited with approval the following reasons argued by defendant Allstate on appeal for excluding the plaintiff’s witness:

  • His education and training as an adjuster consist of a seven day training course through State Farm and a forty-hour online, self-study course to obtain an adjuster’s license in Texas.

  • He admits to a lack of training in the pricing software employed by Allstate (Integra) and therefore lacks a reliable basis for his assertion that Integra understates damage estimates.

  • He did not utilize any recognizable methodology in formulating his opinion that Allstate failed to determine the correct cause of damage and mishandled the Nunezes’ claims. Rather, his opinions relied on hearsay and Mr. Nunez’s speculations as to the causes of damage. ”

Nunez, 604 F.3d at 847.

The Fifth circuit did note that it lacked “the benefit of an explanation” as to the trial court’s reasoning for its ruling to exclude the Hitchcock expert testimony. But an explanation by the trial court of the reasons for excluding the expert were not necessary in Nunez’s case. In light of “rulings of other judges in the Eastern District of Louisiana and the facts propounded by Allstate,” the circuit found no error. Nunez, 604 F.3d at 848. In particular, action taken by other judges in the district regarding proposed testimony by the same expert witness (Hitchcock) was sufficient for its exclusion. As the circuit explained:

“Four other judges in the Eastern District of Louisiana have excluded Mr. Hitchcock’s testimony under Rule 702, upon finding that: (1) he lacks the requisite qualifications to testify about claims handling; (2) he is unqualified to opine on Allstate’s pricing, and he bases his opinions on Allstate’s pricing on unreliable methodology; (3) he bases his claims handling and causation opinions on flawed methodology; (4) his opinions regarding the cause and extent of the Nunezes’ damages are unreliable and speculative; and (5) his replacement cost estimate does not assist the trier of fact.”

Nunez, 604 F.3d at 848.

In connection with the assessments made by the other district judges about Hitchcock’s expertise, the circuit noted one that in one case, Bayle v. Allstate Ins. Co., No. 08-1319, 2008 WL 5054572 (E.D.La. Nov.21, 2008): “The facts … are similar to those of the present case [of plaintiff Nunez] -Hurricane Katrina victims sought to recover additional money under their Allstate homeowner’s policy. The Bayle court granted Allstate’s Motion to Exclude Proposed Expert Testimony of Steve Hitchcock and granted summary judgment in favor of Allstate.” Nunez, 604 F.3d at 844 n.3 (citations omitted). Similarly, in another similar case in the district, Williams v. Allstate Ins. Co., No. 08-0062, 2008 WL 5110604 (E.D.La. Nov.26, 2008), “[t]he facts, holdings, and language of the opinion are virtually identical to Bayle. It appears that the Nunez court relies on Williams for its ruling to strike the testimony of plaintiff’s expert. The court held, under Federal Rule of Evidence 702, that the plaintiff’s expert’s opinion (in support of segregating claims) regarding wind damage was unreliable because it was not based upon sufficient facts or data and was not the product of reliable principles and methods.” The circuit noted that the judge in Williams noted:

“[The expert Hitchcock] rendered his two reports based solely on his visit to the dwelling (more than three years after the hurricane and after the damage had been repaired) and his interview of the dwelling owners (Plaintiffs).... There is simply no other paperwork to corroborate the accuracy of the dwelling owners’ claim as described by them to the ‘expert‘”.

Nunez, 604 F.3d at 844 n.4 (citations omitted).

Indeed, the expert had been excluded in a various other cases in the same district, such as:

  • Phoenix v. Allstate Ins. Co., No. 07-8546 (E.D.La. Mar. 11, 2009) (Minute Entry) (Engelhardt, J.) (excluding Hitchcock’s opinions on claims handling, the accuracy of Allstate’s pricing software, and causation)
  • Bayle v. Allstate Ins. Co., 2008 WL 5054572 (same)
  • Davis v. Am. Sec. Ins. Co., No. 07-4158, 2008 WL 5120688 (E.D.La. June 18, 2008) (Lemmon, J.) (precluding Hitchcock from testifying because he provided an insufficient expert report)
  • Lambert v. State Farm Fire & Cas. Co., 568 F.Supp.2d 698, 712-13 (E.D.La.2008) (Africk, J.) (holding that because Hitchcock “fail[ed] to provide sufficient information … that he is qualified to offer expert testimony concerning the cause of structure damage to Lambert’s property[,] Hitchcock will not be permitted to testify at trial as to the cause of structure damage detailed in his report …”).

In Nunez, the Fifth Circuit presents another approach to Daubert expert reliability and qualification issues. Where the expert has appeared elsewhere to offer highly similar testimony in cases involving many of the same facts, it is not inappropriate for the judge to rely on other trial judge’s prior decisions as to the admissibility of the challenged expert opinion.

Federal Rules of Evidence