“We don’t see things as they are, we see them as we are” – the “expert witnesses” of Gagne v State Farm

There is seldom such a thing as an absolute truth.  Everything we see and hear causes us to come to a conclusion about what we have seen or heard based upon our own experiences up to that point.

I thought I’d start the day by cutting my “to-post” list in half by grouping  the various responses on motions related to the testimony of and reports from expert witnesses in Gagne v State Farm – and introduced the subject with a quote that offers my I’m-not-a-lawyer understanding of what an expert opinion provides.

Each of these Responses, however, relies in some fashion on the understanding of the requirements established under and/or expanded from Daubert, quoted here from Gagne’s response re: Wiggins:

Experts are not required to establish scientific certainty or any particular level of certainty for their opinions to be admissible under Daubert v. Merrell Dow Pharmaceuticals, Inc…It is only necessary for the opinion be sufficiently reliable to have a tendency to make the existence of any fact of consequence more probable or less probable than it would be without the expert opinion. See Tug Danielle M. Bouchard v. Oryx Energy Co…

Defendant State Farm wants the Court to exclude the testimony and/or reports produced in support of Gagne by Jerry Wiggins, Richard Henning, Michael Dombrowski, Donald Dinsmore, and E. J. Dennis – five total – oops, make that six – and last but by no means least, Neil Hall.

Plaintiff Gagne, on the other hand, wants the Court to exclude the testimony and opinions not fully disclosed of State Farm’s expert Dr. Robert Dean.

In other words, pour yourself another cup of coffee and settle in for what can not be a quick read.

Let’s start with the one that just blew me away – Gagne’s Response to State Farm’s motion to exclude the testimony and report of replacement cost expert Jerry Wiggins – and what blew me away.  Wiggins used Xactimate to calculate replacement cost –  creating what Times-Picayune reporter Rebecca Mowbray might call  same house, same software, different result and what I call evidence of the Scheme.

Robert Gagné’s home was destroyed by Katrina. Jerry Wiggins was hired to provide an estimate of the value of his home at the time of loss and what it would cost to replace it. Mr. Wiggins used Xactimate to determine the values. State Farm did not like the figures provided by Mr. Wiggins so is challenging his credentials to testify at trial as to Mr. Gagné’s loss…

State Farm’s criticisms all boil down to disagreements with the assumptions and sources of information Wiggins relied on in forming his opinions.

State Farm argues that Mr. Wiggins wrongly relied solely on information provided to him by the Plaintiff to calculate the loss. They call into questions the reliability of the data provided to him by the homeowner, which ironically, is the same standard State Farm used to adjust Plaintiff’s homeowner’s claim. Rachel Savoy, the adjuster on Mr. Gagné’s claim used Xactimate and entered the data regarding the quality of the building materials as was told to her by Mr.Gagné. In her deposition in this case, she was asked how she determined a value for the home:

…There is a report that you fill out in the program that we use called Xactimate that we – it is a program to rebuild the home per square foot. So as I was asking questions, I would be putting it into the computer or the program about whether or not he had tile, or what type of carpet, granite counter tops, the fixtures, thing of that nature. And so you would have to input that information into the program for it to properly be able to assess the rebuild price of a house of its size and quality.

…Mr. Wiggins… used the exact same program that State Farm uses to compensate homeowner’s after a loss. State Farm nor Mr. Wiggins consult local contractors when they do an Xactimate because it is not necessary. The Xactimate software already includes the necessary adjustments based on regional differences.

The local standards are already built into the software. Ironically, a local contractor was consulted by the homeowner and his typewritten estimate was provided to Mr. Wiggins…It is this very report from a local contractor – Signature Homes – that State Farm is asking to have stricken from Wiggins report as hearsay. Again, ironically, this local contractor came up with an estimate higher than Mr. Wiggin’s Xactimate valuation. State Farm wants Mr. Wiggins to consult with local contractors but when the local contractor’s price is higher than the Xactimate valuation, they ask that all such information be stricken from the record.

Exhibits are attached to this Response.  Check them out – and while you’re checking, remember there is a compiled version of the Scheme, the “parent document” of Sop’s  post on the Slabberator.

Next, Gagne’s Response on the motion to exclude the testimony and report of expert Richard Henning.

Henning was formerly (official retirement date 12/31/08) an Aerial Reconnaissance Weather Officer with the 53rd Weather Reconnaissance Squadron (commonly referred to as the Hurricane Hunters) who personally directed the flight of the Hurricane Hunters into the eyewall of Hurricane Katrina on August 28, 2005 and has participated in over 145 hurricane eyewall penetrations since joining the Hurricane Hunters.

Henning was the Mission Director within the 53rd Weather Reconnaissance Squadron, responsible for all meteorological data collection during hurricane penetration flights during Hurricane Katrina…He acted as liaison to the National Hurricane Center regarding…transmission…He personally directed the flight of the Hurricane Hunters into the eyewall of Hurricane Katrina on the morning of August 28, 2005.

As Gagne points out, State Farm does not appear to question Henning’s qualifications as a meteorologist or his
qualifications to express the opinions contained in his report disclosing his opinions in this case.

Instead, State Farm argues that Richard Henning’s testimony is inadmissible in this case because he has not obtained the permission of the Air Force to testify and the Air Force has denied such permission pursuant to 32 C.F.R. § 97.6(e).

Gagne counters withThe Air Force regulations, which rely on 5 USC § 301 for authority, do not have the
force of law.

The Federal Rules of Civil Procedure and the Federal Rules of Evidence do have the force and effect of statutory law and govern both expert testimony and the production of information and the taking of testimony by deposition for use either as a discovery device or for other purposes including trial… The Air Force cannot trump the Federal Rules or exempt or shield its employees and former employees from those Rules. Thus, it is the Rules and the decision of this court applying the Rules on expert testimony, and not the Air Force regulations or a decision by Air Force personnel interpreting and applying Air Force regulations, which govern whether Richard Henning may testify in this case as an expert.

I gladly leave further comment on Henning to others and move to the remaining responses – taking up now Gagne’s Response to State Farm’s motion to exclude the testimony of Michael Dombrowski.

The gist of Dombrowski’s opinion…[is]…that the [Gagne] house collapsed prior to the arrival of sufficient storm surge to destroy the home…Dombrowski relied on his observations in more than 18 years of coastal engineering and his observations during his participation in the experiments that formed the basis of Dr. Sheppard’s 1995 article publishing mathematical models for scouring drawn from extensively controlled experiments. In his initial report, he backed up the principles and characteristics of scouring he considered and relied upon in analyzing his observations, his theories and analysis with citations to the published literature on scouring.

State Farm’s motion to exclude Dombrowski’s testimony is another that does not question the expert’s qualifications.  However, in this case, the basis for the motion is more complicated – or convoluted (take your pick).

State Farm…challenges only the reliability of his opinions and the bases for them and claims that he has self-limited the scope of his trial testimony to less than what is reported in his reports. A careful reading of the deposition and report demonstrates, however, that Dombrowski did not self-limit his testimony.

The Response is a fascinating read about the evidence of wind-versus-water damage found by examining the scouring patterns water leaves behind.  Gagne holds that Dombrowski’s use of the mathematical models, equations and research published by Dr. Sheppard in 1995 do not undermine the reliability of his opinions.

To the contrary, they reinforce the reliability of opinions based on observation in an area with so many possible permutations of relevant factors that no court could rationally expect an expert to find peer reviewed published data and verifying tests specific to the actual factors observed at a specific location.

Contrary to State Farm’s arguments, Dombrowski did not self-limit the scope of his testimony to exclude anything covered by his reports. He did not retract his opinions as to the sequence of timing of the collapse of the Gagné residence and the arrival of storms surge at heights sufficient to reach the main floor of the house. He merely stated that he is not expressing opinions as to what specifically caused the destruction of the house which is quite different from stating that one is not going to testify that the timing of a sequence of events likely excludes one alleged cause of the destruction of the house.

If I had Sop’s expertise and could explain the math involved; however, as the mother of three, I’ve racked up enough experience to assure you with certainty that whatever is on the top of a pile was put there after whatever is underneath – be it my car keys hidden under the mail or the second floor of Gagne’s house under gravel.

Life experience also contributed to expertise in State Farm claims handling processes, according to Gagne’s Response to State Farm’s motion to exclude the testimony and strike the report of expert Donald Dinsmore.

Under F.R.E. 702, a witness may qualify as an expert by knowledge, skill, experience, training or education. These methods of qualification are disjunctive. An expert may qualify by any one of these means and is not required to have particular degrees or education…

Dinsmore has not been out of touch with insurance claims practices since 1994..[as State Farm claims]. He has had an active insurance claims consulting practice for the last ten years through which he has kept up with his specialized knowledge in insurance claims handling practices.

Earlier this year, Donald L. Dinsmore was found qualified to testify as an expert on property casualty insurance claims handling practices in the Northern District of Mississippi…

Dinsmore has more than twenty-six years experience as a claims adjuster. He has further been involved in insurance consulting for the past ten years. The court finds that Donald Dinsmore is fully qualified to testify as an expert in insurance claims adjusting based on his resume and curriculum vitae.

According to Gagne’s response, State Farm takes issue with the facts Dinsmore uses as a basis for his opinions…[stated in his report]…Contrary to State Farm’s position, an expert is not bound to accept the defendant’s version of the facts and a failure to do so does not render the expert’s opinions inadmissible or unreliable...[emphasis added!]

Dinsmore’s report lists a set of facts that are so telling it is easy to see whay State Farm would want his testimony and report excluded – and these are facts, not opinion.

In 1996, the subject home was built.
On May 4, 1999, State Farm published its CAT Induction Manual.
On September 20, 2004, State Farm issued the subject homeowners policy (“HO”). State Farm issued the
homeowners policy subject to the basic policy form FP-7955 and Endorsements.
On August 29, 2005, a windstorm (Hurricane Katrina) severely damaged the property.
On August 31,2005, Gagne reported the loss to State Farm.
On September 9, 2005, State Farm first inspected the Gagne property for the flood claim.
On September 13, 2005, State Farm issued its WindlWater Claims Handling Protocol.
On September 17, 2005, State Farm first inspected the Gagne property for the HO claim.
On September 24, 2005, State Farm first assigned an engineer to determine causation.
On September 25, 2005, State Farm issued a $2,500 advance on Additional Living Expense (“ALE”).
On October 2, 2005, State Farm issued the flood claim payment on building: $250,000.
On October 6, 2005, State Farm engineers (Exponent) inspected: “Wind caused the catastrophic failure.”
On October 26, 2005, State Farm issued the flood claim payment on contents: $100,000.
On November 11, 2005, State Farm denied the HO claim in writing, citing Exclusion C – Water.
On November 23,2005, Exponent inspecting engineer reported “… revising opinions… ”
On November 30, 2005, Exponent reported” The house at this site was destroyed by storm surge
flooding… ” and “Storm surge flooding damage obliterated any evidence of wind damage to the building…
we cannot definitively identify the extent of wind damage that may have preceded… it is possible that wind
caused damage…
From December 4, 2005 to May 22, 2006, Gagne repeatedly contested the denial in writing.
On July 21, 2006, Gagne first filed the subject Complaint.
On April 19, 2007, State Farm filed its Answer and Affirmative Defenses.
On October 10,2007, Gagne filed the First Amended Complaint.
On October 24, 2007, State Farm filed its Answer, Defenses and Affirmative Defenses.

Those facts, in turn, led Dinsmore to state in his report that from the perspective of an insurance claim professional, State Farm acted in bad faith in its claim handling. [emphasis added]

The claim handling subjected Gagne to an unreasonable risk of financial harm because the delays and lack of claim payments expressly ignored requests for payment(s) from Gagne. The claim handling was not merely negligent because the sequence of inactions occurred over a time exceeding one year. An insurance claim such as the subject claim could and should have been completely handled and paid in one hundred eighty (180) or by February 2006.

Reasonable claims adjusting requires at least a minimum measure of common sense lacking in the subject claim handling by State Farm. Review of the investigation shows that State Farm unreasonably relied on unreliable information. The State Farm investigation and conclusion did not meet minimum standards for the handling of such a claim. The basis for this opinion is my review of the documents, articles and texts provided and gathered combined with special experience, education and training in handling this type of claim.

IMO, Dinsmore’s report is a standard-setting document – perhaps the most professionally presented of any expert witness report to date.  Given the arguments countered in the response, I was not expecting that or the knock-your-socks-off resume and the detailed, and I do mean detailed, citations of the documents he reviewed.  It’s the total package and any attorney reading this post will want to at least take a look (State Farm attorneys, should there be any reading, might want to squint as it will be less painful).

As I read Gagne’s Response to State Farm’s motion to exclude report and testimony of expert E.J. DennisI was reminded of  the man who led the Boy Scout troops sponsored by our church when I was growing up – leading me to think there must not be any former Eagle Scouts among State Farm’s army of Katrina lawyers. If there are, there certainly aren’t enough or there were be no questions about the qualifications of Mr. Dennis as an expert or the reliability of his report.

…E. J. Dennis is a Forensic Arborist who is also a resident of South Diamondhead. His home was next to Robert Gagné’s home and he is also very familiar with Gagné’s home. He was one of the first residents to return to South Diamondhead after Hurricane Katrina and almost immediately he began a survey of the damage to the trees in the even smaller area of South
Diamondhead which is south of Airport Road. He continued to observe the progress of this tree environment for several months as it struggled to recover from the ravages of Hurricane Katrina.

In late February of 2006, he reduced the observations and conclusions from his study to writing and made it available to insurers and local residents. Shortly thereafter, it was also widely distributed to the public through the Internet. Because Dennis’ study focuses on the trees in the whole neighborhood south of Airport Road instead of a particular property and was not done in anticipation of litigation, the identical study and report, along with Dennis’ testimony about it, have been presented as evidence in several cases involving different pieces of property in that neighborhood…

…Gagné intends to call E. J. Dennis to testify both as a fact witness concerning his observations of the damage to, and location and condition of debris found from, properties in the immediate vicinity of the Gagné residence and as an expert witness concerning the damage to trees in the small part of the Diamondhead community south of Airport Road which is only a small part of the part of Diamondhead south of I-10.

State Farm seeks to exclude his testimony alleging it fails the Daubert/Kumho standard. State Farm also seeks to exclude his report on tree damage in this part of South Diamondhead after Hurricane Katrina…

State Farm’s representation of the process by which Dennis examined the tree evidence and formed his opinions as being based solely on walking around looking at trees in the general Diamondhead area without taking photographs, after which he destroyed his notes, and not based on any calculations, meteorological data, or engineering data is highly misleading. State Farm’s claim that Dennis performed no research to substantiate his conclusions, did not subject his methodology or conclusions to peer review, and testified that his opinion has absolutely no scientific basis to it at all are equally misleading.

A lawyer with Eagle Scout on his resume would know better than to embarrass State Farm like that. Gagne, on the other hand, appears to have a legal Eagle on his team.

Dennis’ opinions and testimony demonstrate that his opinions are based on the time- honored scientific tradition of careful field observation (albeit under extreme adverse conditions in this instance) in addition to a lifetime of experience and knowledge in examining damaged and injured trees and determining from those observations how they came to be in their condition.

Based on an examination, primarily in the first two days after Hurricane Katrina passed, of approximately 1500 damaged trees in the area of South Diamondhead on the bay side of Airport Road, the location of debris and house slabs in relation to damaged and undamaged trees, experiments which he performed himself or had performed by others, and his decades of
experience and specialized knowledge in Arboriculture and as a Forensic Arborist, E.J. Dennis has expressed the following primary opinion of relevance to this case:

Q. Where did you maintain those notes you were taking?
A. Where did I maintain them?
Q. Uh-huh.
A. In my pocket, mostly. I had them in my wallet, just a few little jotted down notes.
Q. And to the best of your recollection, as you sit here today, what did those notes reflect? What were you taking down? What observations were you making?
A. How bad the damage was to certain trees and which trees were rotating out of the ground. I knew that I needed to make my report or get all my field work done and observe as much as I could in a reasonably short period of time because I’ve seen FEMA’s actions in the past 10 or 15 hurricanes, and when they come in, they just devastate and they erase everything, and that’s exactly what they did.

Some of State Farm’s arguments appear to claim that Dennis’ opinions are not based on sufficient facts and data to be reliable because Dennis did not interview witnesses, did not take lots of photographs or examine videotapes taken by witnesses in other areas of Diamondhead during the storm, did not obtain verification of wind speeds for past hurricanes used in comparing severity of damage, and did not keep the scribbled notes he took on scraps of paper when he examined the trees in the days immediately after Katrina once he had written his report.

Based on testimony from his deposition and his handling of the case, State Farm’s claims manager appears not to have been an Eagle Scout either.

The State Farm team leader who ordered the cancellation of the engineering report on the causation of the damage to Gagné’s property and initially denied coverage of any damage under the dwelling and contents coverage of Gagné’s homeowner’s policy did not document the basis of his decision. However, in his deposition, he stated that in denying the claim he relied primarily on his personal opinion that the trees in photographs of the Gagné property and the surrounding area did not show any significant wind damage. He reasoned that wind that was not sufficiently strong to damage the trees would not have been sufficiently strong to damage the home prior to the arrival of the surge.

Read this Response if you don’t read any of the others, Mr. Dennis’ eight-page resume and his six-page report.  You’ll learning something, I promise – Scout’s honor.

Let’s stop here and take up State Farm’s Response to Gagne’s motion to exclude certain testimony and opinion of Robert G. Dean

An expert witness for State Farm, Dean is Professor Emeritus of Coastal and Oceanographic Engineering at the University of
Florida.

State Farm timely filed its designation of Dr. Dean in this matter on June 11, 2007, at which point State Farm produced Dr. Dean’s May 7, 2007 report.  Unbeknownst to undersigned counsel, Dr. Dean updated his expert report on June 25, 2008.Counsel did not learn of Dr.Dean’s Supplemental Report, however, until September 24, 2008, during Dr. Dean’s deposition preparation.  Upon receiving the Supplemental Report, counsel quickly moved that same day to supplement State Farm’s expert disclosures, disclosing the Supplemental Report to Plaintiff’s attorney the day before Dr. Dean’s deposition. Counsel explained to Plaintiff’s attorneys, both off and on the record at Dr. Dean’s deposition, that “[i]t was certainly inadvertent that [the Supplemental Report] was not provided to Mr. Gagne’s counsel until yesterday afternoon. It was through no intentional act on the part of State Farm in any manner.”

In spite of counsel’s representations as an officer of this Court – including representations made on the record at Dr. Dean’s deposition – Plaintiff has nevertheless filed this instant motion, accusing State Farm of “tactically delay[ing]” the supplementation of Dr. Dean’s report. As explained above, and averred to by State Farm’s counsel in his attached affidavit, State Farm did no such thing.

Despite Plaintiff’s attempt to reframe the Supplemental Report as being entirely new, in actuality it contains very minor updates to the May 2007 report, mainly reflecting Dr. Dean’s critiques of Plaintiff’s experts Neil Hall, Ted Biddy, Richard Henning, and Michael Dombrowski. And although the Supplemental Report included certain data from a December 19, 2007 Hurricane Research Division wind swath map not available when Dr. Dean authored his May 2007 report… Dr. Dean explained that this data “really just supported the wind speeds that [he] used” in the May 2007 report. [emphasis added]

As one would expect, Gagne counters with a different opinion of the Supplemental Report.

There are substantial differences between the May 2007 and the June 2008 Dean reports. The 2008 report, at 98 pages, is nearly twice the length of the 2007 report of 54 pages. Among the most obvious additions are the addition of opinions criticizing the opinions of Plaintiff’s  experts Neil Hall, Ted Biddy, Richard Henning and Michael Dombrowski; a section on Forensic Engineering Analysis; a section on comparison of maximum one-minute winds from Hurricanes Camille and Katrina; a section on comparison of maximum storm surges from Hurricanes Camile and Katrina; a section based on a 2007 article by Fritz on damage observations after Hurricane Katrina; and a Powerpoint Presentation of the basis for conclusions reached in the June 2008 report.

Given the vastly different descriptions of the changes made to the original report, I would have expected State Farm’s response to address Gagne’s claim about the added content on an item by item basis and not just the one paragraph.  The eventual decision, however, will turn on the issues of timing and related rules IMO.

This leaves only Gagne’s remaining Response –  this one to the oft repeated State Farm motion to exclude the expert testimony of Neil Hall.

Gagne’s response focuses on two key points with most of the effort invested in defending Hall’s use of the the Enhanced Fujita
Scale instead of the Saffir-Simpson Scale favored by State Farm.

State Farm argues that Hall’s use of the Fijuita scales is suspect because Hall chose to use a scale designed for tornados instead of the Saffir-Simpson Scale which State Farm considers to be more appropriate because State Farm claims it was designed for hurricanes. What State Farm leaves out of its argument is that the Saffir-Simpson Scale was designed to predict prior to the event the level of damage a hurricane is likely to do on a large scale wide path in order to help plan pre-storm actions to minimize loss of life and property. Its limitations as a predictor of actual destructiveness of a hurricane have long been known and have provoked an increasing call for alternatives in recent years as it failed woefully to predict the damage potential of Hurricanes Katrina, Rita, Gustav, and even Ike which was the 3rd costliest storm in U.S. history but only a
Category 2 storm on the Saffir-Simpson Scale…

More information about the scales is in a related post recently published here on SLABBED.  The other issue is one of particular significance and the subject of a separate motion.  We’ll take up Gagne’s motion asking the court to reconsider the effect of cashing a check for damage from flooding after a break – likely a very long one!

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