United States District Court, S.D. Mississippi, Northern Division
CARLTON W. REEVES UNITED STATES DISTRICT JUDGE
Court considers three items in the above-styled case.
Plaintiff Kerrick Watson has filed a Motion to Exclude
Certain Opinion Testimony of Joseph Hines. Defendant Allstate
Property and Casualty Insurance Company has filed a Motion to
Exclude the Opinions of Annette Herrin and a Motion for
Summary Judgment, or in the alternative, a Motion for Partial
Summary Judgment. The matters are fully briefed and ready for
December 28, 2015, a fire destroyed Watson's house, where
he lived with his fiancé Zanetta Bowman and her
daughter G.B. At the time, Watson had a homeowners insurance
policy with Allstate. Watson immediately filed an insurance
claim for the contents of the house.
following day, Jennifer Morales, Allstate's contents
adjuster, inspected Watson's home. Watson told her that
everything in his house was new and purchased within the last
two to three years. Watson requested the full policy limit of
$107, 681 for his contents claim.
April 22, 2016, Watson and Bowman submitted to an examination
under oath (EUO). Watson testified that in addition to
working as a Mississippi State Trooper, he worked part-time
as a commercial truck driver for Chambliss Automobile Agency,
a truck driver for Falco Line Company, and a courtesy officer
for Kings Apartment Complex. Watson also stated that he alone
owned all of the items listed in his claim.
hired Joseph Hines, a forensic accountant, to assess
Watson's claim. Hines drafted an initial report on August
1, 2016. Hines found that based on Watson's bank records,
child support payment history, and his employer's payroll
records, Watson could not have incurred $107, 681 of
household expenses because doing so would have left him with
a cash-flow deficit (“CFD”) of $85, 243.
response, Watson hired Annette Herrin, also a forensic
accountant. Herrin concluded that Allstate did not request
the proper financial records to make an informed
determination of the reasonableness of Watson's claim.
Namely, Herrin stated that Allstate should have requested
financial records from Bowman.
close of its investigation on September 14, 2016, Allstate
denied Watson's claim because Watson “intentionally
overstated the value of the personal property damaged by the
fire” and “made additional misrepresentations
during the investigation of the claim.”
filed suit in Warren County Circuit Court in November 2016,
alleging 10 state law claims against Allstate. Allstate
properly removed the case to this Court on December 28, 2016,
pursuant to diversity jurisdiction. On Allstate's Motion,
the Court dismissed Watson's claims for breach of
fiduciary duty, and estoppel and detrimental reliance.
See Watson v. Allstate Prop. & Cas. Ins. Co.,
No. 3:16-CV-00987-CWR-FKB, 2017 WL 4158860, at *3 (S.D.Miss.
Sept. 19, 2017). Watson's remaining claims include breach
of contract; bad faith denial of insurance benefits;
negligence; negligent, grossly negligent, and wanton failure
to monitor and train agents and adjusters; intentional
infliction of emotional distress; indemnity; as well as
Watson's request for punitive damages.
has designated Hines as an expert. Hines produced two
additional reports based on new documents that Allstate
received through discovery, including the depositions of
Watson and Bowman who both testified that they shared
household expenses equally. In his October 19, 2017 report,
Hines found that Watson would have incurred a CFD of $29,
340. In his December 19, 2017 report, he recalculated a CFD
of $68, 488.
standard set forth in Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993) and the
post-Daubert amendments to Federal Rule of Evidence
702 govern the admissibility of expert
testimony. The purpose of Rule 702 is to guide the
district court's gatekeeping function, which ensures that
the jury hears reliable and relevant expert testimony.
Guy v. Crown Equip. Corp., 394 F.3d 320, 325 (5th
Cir. 2004). “Reliability is determined by assessing
whether the reasoning or methodology underlying the testimony
is scientifically valid. Relevance depends upon whether that
reasoning or methodology properly can be applied to the facts
in issue.” Knight v. Kirby Inland Marine Inc.,
482 F.3d 347, 352 (5th Cir. 2007).
Daubert Court outlined a non-exclusive list of
factors that trial judges should consider when assessing the
reliability of expert testimony. These factors include: (1)
whether the theory has been tested; (2) whether the theory
has been subjected to peer review and publication; (3) the
known error rate of the theory; and; (4) whether the theory
is generally accepted in the scientific community. The party
offering the testimony bears the burden of establishing
reliability by a preponderance of the evidence. Moore v.
Ashland Chem. Inc., 151 F.3d 269, 276 (5th Cir. 1998).
Daubert analysis applies strictly to the
expert's process of reaching his or her conclusions, not
the merits of those conclusions. See Guy, 394 F.3d
at 325. The merits of an expert's conclusions are subject
to scrutiny at trial through the use of “[v]igorous
cross-examination, presentation of contrary evidence, and
careful instruction on the burden of proof.”
Daubert, 509 U.S. at 596. As a result, when district
courts assess the admissibility of expert testimony, the
“court should approach its task with proper deference
to the jury's role as the arbiter of disputes between
conflicting opinions.” United States v. 14.38 Acres
of Land, 80 F.3d 1074, 1077 (5th Cir. 1996).
judgment is appropriate when “the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). The moving party bears the initial burden
of identifying the basis for its motion and the portions of
the record that support it. Nola Spice Designs, L.L.C. v.
Haydel Enters., Inc., 783 F.3d 527, 536 (5th Cir. 2015).
“Once a summary judgment motion is made and properly
supported, the nonmovant must go beyond the pleadings and
designate specific facts in the record showing that there is
a genuine issue for trial.” Wallace v. Tex. Tech
Univ., 80 F.3d 1042, 1047 (5th Cir. 1996).
considering a summary judgment motion, the court “must
view all facts and evidence in the light most favorable to
the non-moving party.” Juino v. Livingston Parish
Fire Dist. No. 5, 717 F.3d 431, 433 (5th Cir. 2013)
(citation omitted). But “[u]nsubstantiated assertions,
improbable inferences, and unsupported speculation are not
sufficient to defeat a motion for summary judgment.”
Brown v. City of Hous., 337 F.3d 539, 541 (5th Cir.
2003) (citation omitted).
Plaintiff's Motion to Exclude the ...