Opinion
No 01. Civ. 8236 (LTS)
August 14, 2003
ORDER
Defendant moves in limine to preclude all evidence relating to all prior insurance policies, to preclude all evidence relating to the replacement cost of the allegedly damaged property and, pursuant to Federal Rule of Evidence 702, to preclude the expert testimony at trial of Michael A. Hatzinikolas ("Hatzinikolas"), Dr. Stephen Pessiki ("Pessiki"), and Mark Patton ("Patton"). Plaintiff, in turn, moves in limine to preclude the testimony of Kimball J. Beasley ("Beasley") and Andrew E. N. Osborn ("Osborn"), also pursuant to Federal Rule of Evidence 702.
For the following reasons, Defendant's motion is denied. Plaintiff's motion is denied in part and granted in part.
Defendant's Motion
Evidence Relating to Prior Insurance Policies
Defendant argues for the exclusion of all evidence related to any historical insurance policy other than the 1998-1999 policy, contending that evidence of other policies is irrelevant because Plaintiff has only asserted a claim pursuant to the 1998-1999 policy.
Defendant's application is denied. As noted in the Court's Order, dated March 27, 2003, addressing Defendant's motion for summary judgment, there are questions of fact as to "whether the damage occurred during the [1998-1999] Policy period" and as to "when the damage occurred." March 27, 2003 Order at 7. Plaintiff has consistently argued that Defendant provided continuous coverage under policies that were issued and renewed from at least 1993 until the time this action was commenced. Indeed, Plaintiff's complaint refers to policy renewals allegedly providing "continuous coverage" from the mid-1980's to the present. Compl. ¶ 7. Thus, there are material issues of fact for trial as to which, if any, of the policies provide coverage for the claimed loss.
Evidence Relating to Replacement Cost
Defendant seeks to preclude all evidence relating to the replacement cost of the damaged property, on the ground that Plaintiff did not complete the repairs within two years from the date of loss or damage. Defendant argues that Plaintiff's recovery, if any, should be limited to the actual cash value of the repairs. The relevant coverage section of the 1998-1999 policy document provides:
Replacement Coverage Endorsement In consideration of increased premium and subject to all terms, conditions and stipulations of the policy to which this endorsement is attached . . . the coverage under this policy applicable only to property as shown in paragraph D below is hereby extended to cover such property to the amount actually expended by or on behalf of the Insured to repair, rebuild or replace within two (2) years from the date of loss or damage. . . .
D. If at the time of loss . . . claim is made on a replacement cost basis as provided by this Replacement Endorsement, then the provisions of this endorsement shall apply to the following property.
Heiss Decl., Ex. A, at p. AU 00068.
Whether or not applicable policy documentation can be interpreted to preclude a successful claim for reimbursement of the replacement cost of the repairs under the circumstances of this case, Defendant's effort to exclude evidence of the replacement cost must fail because, by Defendant's own definition of the "actual cash value," Plaintiff would be required to introduce evidence of "replacement cost" even if, as Defendant argues, Plaintiff can only recover "actual cash value." See Def.'s Memo of Law in Supp. of its Mot. at p. 6 n. 1 ("Actual cash value is defined in the insurance industry as replacement cost minus deductible depreciation.")
Defendant's motion in limine to preclude evidence as to replacement cost is denied.
Expert Testimony
Rule 702 of the Federal Rules of Evidence provides that:
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 (West 2002). The Rule requires that the trial court make a "preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue." Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 592-93 (1993). "Its overarching subject is the scientific [or technical] validity and thus the evidentiary relevance and reliability — of the principles that underlie a proposed submission." Id. at 594-95. The proponent of the evidence must demonstrate admissibility to the satisfaction of the Court under Rule104(a) by establishing scientific or technical reliability by a preponderance of the proof. See Bourjaily v. United States, 483 U.S. 171, 175-76 (1987); Falise v. American Tobacco Company, 107 F. Supp.2d 200, 203 (E.D.N.Y. 2000). Matters of exclusion or admission of evidence pursuant to Rule 702 are left to the broad discretion of the trial court.See Zuchowitz v. United States, 140 F.3d 381, 386 (2d Cir. 1998).
Expert testimony should assist the jury in understanding the evidence or determining a fact in issue. See United States v. DiDomenico, 985 F.2d 1159, 1163 (2d Cir. 1993). In assessing admissibility, the Court must determine whether the proffered expert testimony is relevant, that is, whether it "ha[s] any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence," Fed.R.Evid. 401 (West 2002), see Daubert, 509 U.S. at 587, and whether the proffered testimony has a sufficiently "reliable foundation" to permit it to be considered, id. at 597. Indeed, the Court must "ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable." Id. at 589; see Brooks v. Outboard Marine Corp., 234 F.3d 89, 91 (2d Cir. 2000). Hatzinikolas
Plaintiff seeks to exclude Hatzinikolas' testimony, asserting that his testimony would only serve to criticize the conclusions of Defendant's experts and that he does not offer any opinions as to the cause of the damages. Hatzinikolas proposes to render an opinion "as to the contribution if any of the expansion of the bricks to cause distress." Wolosky Decl. in Opp'n to Def.'s Mot., Ex. 15. Hatzinikolas Dep. at 5.
Hatzinikolas' analysis meets the threshold requirements of Rule 702. Hatzinikolas has presented a testing methodology and empirical evidence in support of his conclusions. Hatzinikolas' opinion is based on calculations using data from the Brick Institute of America which were based on monitoring of individual masonry units, as well as more recent research conducted by Hatzinikolas' himself. Further, Hatzinikolas' theory and research go directly to the validity of the underlying premise of Defendant's experts' opinions as to the cause of the damage. See Heiss Decl., Ex. H, Hatzinikolas' Report. "Courts have often allowed expert testimony for the sole purpose of critiquing and thereby helping to explain the work of an expert witness retained by another party." In re Blech Securities, No. 94 Civ. 7696 (RSW), 2003 WL 1610775 at * 20 (March 26, 2003). As such, his testimony will help the trier of fact understand the scientific issues and evidence relating to brick expansion and determine the weight to be accorded Defendant's witness' opinions. Finally, though Defendant argues that Hatzinikolas' testimony should be precluded because his testimony was contrary to the opinions of other experts in the field, Defendant has not proferred any evidence that Hatzinikolas' methodology deviated from acceptable scientific standards or that his opinions are contradicted by the scientific community. Defendant's application to preclude Hatzinikolas' testimony is, accordingly, denied.
Pessiki
Defendant also seeks to preclude Pessiki's testimony, arguing that he can not opine as to the cause of the loss. Pessiki's opinion that "[t]he damage to the reinforced concrete frame structure is consistent with the damage that would be caused by an overload placed on the roof parking deck" is based on his analysis of the internal forces generated in the structure of the premises due to overload and brick expansion. See Heiss Decl., Ex. E., Pessiki Report at 1. Though Pessiki in part bases his conclusion on an evaluation in the LZA Roof Analysis Report, an expert witness need not have conducted her own tests in order for her testimony to be admissible. Gussack Realty Co. v. Xerox, 224 F.3d 85, 94-95 (2d Cir. 2000). Pessiki identified two alleged overloads, resulting from a concrete truck in 1994 and the snow load in 1993, that he concludes were of a sufficient magnitude to cause the damage. See Wolosky Decl. in Opp'n to Def.'s Mot. in Limine, Ex. 18, Pessiki Dep. at 121. Further, Pessiki's analysis of the 1993 snow storm is based on a Lott Report referenced in the LZA Roof Analysis Report. The Lott Report calculations are based on data provided by the National Climactic Data Center which provided detailed information about the March 1993 snowstorm that struck the eastern seaboard of the United States. See Pessiki Report at 5. Although Pessiki's conclusions rest in part on assumptions as to the presence and placement of snow, and as to the presence of a concrete mixer, such assumptions appear to be consistent with evidence anticipated to be proffered at trial and, more importantly, his report details the methods of analysis applied to those assumed facts to reach his conclusions. It is the explanation of the analysis that permits appropriate exploration and evaluation at trial of the weight of his testimony. The Court finds that Pessiki's proposed testimony passes Rule 702 muster. Defendant's application to preclude it is, accordingly, denied.
Patton
Defendant also moves to exclude the Patton opinion, arguing that it is tantamount to a critique of the opinions of Defendant's experts. Patton was retained "[t]o examine three concrete samples and to see if [he] could determine the age of the cracks in those samples." Wolosky Decl., Ex. 20, Patton Dep. at 3. Patton opines that "[b]ased on the samples taken, and the testing performed by Wiss Janney Elstner Associates, Inc. (`WJE'), [Plaintiff's experts,] it is impossible to accurately date the age of the cracks in the samples." Heiss Decl., Ex. M, Patton Report at 1. Patton represents that he examined the samples tested by Plaintiff's experts using standard industry methods and his conclusions directly critique Plaintiff's experts' methodology and results. As noted above, properly supported expert testimony critiquing another expert's opinion is admissible. See In re Blech Securities, 2003 WL 1610775 at * 20. Patton's testimony will assist the jury in evaluating the weight of expert testimony as to the date and causation of the damage to the premises. Defendant's motion to preclude Patton's testimony is denied.
Plaintiff's Motion
Beasley
Beasley proposes to opine that: "Observed distress patterns at 31-11 Thompson Avenue indicate restrained differential movement of brick masonry facades due to the absence of facade expansion joints. The resulting structural and facade damage occurred over the life of the building"; and that "The contention by others that overload from either a concrete truck or accumulated snow at the upper deck caused the distress is not consistent with the location and orientation of damage and the lack of damage to other structural elements that would be expected with the theorized overload." Pl.'s Notice of Mot., Ex. 4.
Beasley's Report is insufficient to establish appropriate technical bases for his opinion as to Plaintiff's expert's "overload" theory. Beasley in his deposition admits that he did not conduct any independent test to determine the effect of an overload to the roof parking deck at the premises. See Pl.'s Notice of Mot., Ex. 5, Beasley Dep., at 93. Beasley offers no scientific or analytical basis for his conclusions on the "overload" theory. Indeed, he admits that the principal bases for his rejection of the overload theory were his own observation and his assumption that concrete columns would crack under the theorized overload. See Pl.'s Notice of Mot., Ex. 5, Beasley Dep., at 62, 93.
As to his opinion regarding expansion of bricks, Beasley proffered at his deposition that his firm had performed relevant tests of long-term brick expansion and that his opinions were based at least in part on such studies, although he did not perform such studies of the premises at issue here. See Pl.'s Notice of Mot., Ex. 5, Beasley Dep., at 85. Beasley also proffered technical references, albeit ones challenged by Plaintiff, for his assertions as to the propriety of the use of expansion joints in construction. The provision of technical and empirical references in support of the analytical methodology provide bases for further exploration and evaluation at trial of the weight of his testimony on these matters. Accordingly, Plaintiff's motion is denied insofar as it is directed to the brick expansion aspect of Beasley's proposed testimony. Osborn
Osborn proposes to opine that: "Finite Element Analysis [("FEA")] performed by WJE has shown that distress patterns in the concrete frame are consistent with forces due to brick masonry expansion"; and that "any scenario involving a truck overload sufficient to cause damage to the columns would also cause damage to the slabs and beams framing into those columns. No such damage has been observed or reported." See Pl.'s Notice of Mot., Ex. 8, Osborn Report at 2-3.
Osborn's testimony as to the distress patterns is based on an FEA analytical investigation predicting cracking level stresses of concrete. The model purports to demonstrate a pattern of distress which is consistent with the Defendant's position that the effects of brick expansion resulted in the structural damage. See id., Osborn Report at 3. Based on the information provided by Osborn regarding the underlying analyses and his experience, Osborn's testimony will not be precluded.
Plaintiff's motion in limine to preclude Osborn's testimony is denied.
CONCLUSION
For the following reasons, Defendant's motion in limine is denied in its entirety. Plaintiff's motion in limine is granted as to Beasley's proposed expert testimony regarding the effect of overload and is denied in all other respects.
SO ORDERED.