State Farm’s expert[sic] all wet: Bossier v State Farm trial update

In a written statement Monday, State Farm said “… based on the testimony of both parties, it is clear that Mr. Bossier and State Farm have different views regarding whether it was wind or storm surge that destroyed Mr. Bossier’s home.

Different views, indeed. Why else would there be a trial? It was their differing views of an expert qualified to determine cause of loss, however, that were at issue when the trial resumed yesterday.

Last week ended with Bossier’s question on the table; i.e., were State Farm’s expert witnesses, Forrest Masters, Ph.D. and Robert H. Weisberg, Ph.D., qualified to give an opinion on the cause of Bossier’s loss? State Farm answered by filing a Bench Memorandum stating the Company’s position:

Plaintiff had ample opportunity in which to file timely Daubert motions with respect to Drs. Masters and Weisberg. However, Plaintiff failed to do so…Plaintiff’s reliance on Rule 4.05, a Mississippi regulatory rule, to support his Daubert challenge is misplaced. The Federal Rules of Evidence do not require a license for expert testimony to be admissible…Plaintiff incorrectly interprets Rule 4.05 to mean that no one from another state is allowed to offer testimony on engineering matters unless they obtain a
limited licensure, an interpretation that would effectively mean that only licensed engineers can testify as to engineering matters.

Bossier’s counsel filed a response claiming, Defendant misperceives Plaintiff’s objection to the testimonies of Dr. Masters and Dr. Weisberg:

Plaintiff’s objection based on Mississippi statutory law is not a challenge to said testimonies under Daubert or Fed. R. Evid. 702. Instead,to the extent said witnesses intend to provide forensic engineering testimony, testimony relating to the cause of failure of Mr. Bossier’s home, or a critique of the testimony of Mr. Ted Biddy, said witnesses are not competent to do so.

In this regard, Rule 601, Fed. R. Evid., provides as follows:

Every person is competent to be a witness except as otherwise provided in these rules. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the competency of a witness shall be determined in accordance with State law.

When court resumed yesterday, Judge Senter ruled on the matter. Mary Perez has the story for the Sun Herald.

U.S. District Court Sr. Judge L.T. Senter Jr…allowed Robert H. Weisberg, an oceanography professor at the University of South Florida, to testify about the strength of the wind, water currents, waves and storm surge. But Senter ruled, “He may not give an engineering opinion on this case.”

Judge Senter’s ruling is very narrow and Bossier’s counsel, Judy Guice, was correct in saying State Farm’s perception of Bossier’s objection was inaccurate. Judge Senter did not disqualify either of State Farm’s expert witnesses. He simply followed State law that prohibits anyone other than an engineer licensed by the State of Mississippi from determining what caused a structural failure:

In order to safeguard life, health, and property, and to promote the public welfare, any person or firm in either public or private capacity practicing or offering to practice engineering shall hereafter be required to submit evidence that the person or firm is qualified so to practice engineering and shall be licensed as hereinafter provided; and it shall be unlawful for any person or firm to practice or to offer to practice in this state, engineering, as defined in the provisions of Sections 73-13-1 through 73-13-45.

Some may argue, as State Farm did,  that Bossier’s position:

would bar the giving of testimony by Professors of Engineering, who are nationally recognized as experts in their fields, but who are not licensed practicing engineers and therefore arguably ineligible for a Mississippi limited licensure, would surely “unreasonably burden” the courts.

However, at that point, State Farm applies Federal Rules of Evidence to higher education, inaccurately assuming an equality of quality that simply does not exist.  Aside from the adage those who can do and those who can’t teach, approval from the US Department of Education has more to do with qualifying student’s for federal financial assistance than quality of education.

All that aside, Bossier makes an excellent point in his Response:

There is nothing unreasonably burdensome about the application of the State law by this Court. There are multiple individuals who could have been hired by State Farm to provide opinion testimony relating to the failure of Mr. Bossier’s home yet it failed to do so.

State Farm’s counsel in Bossier, Coast attorney John Banahan, also represented the Company in McIntosh and is well aware of the Mississippi law requiring a licensed engineer to determine cause of loss.  In light of the deposition testimony of former Forensic’s engineer Brian Ford, one can only wonder why State Farm selected no qualified engineer as an expert witness in Bossier.  On one hand it appears there might be no professional engineer willing to back up the claims Weisberg, an oceanographer, made in court yesterday?

Using more than a dozen charts, Weisberg showed the storm surge in the area near Bossier’s home was between 18.6 and 20.6 feet. Katrina wasn’t a tsunami, he said. “It rose very fast but it was not a wall of water,”

Weisberg said the wind peaked around 10:30 a.m. on Aug. 29, 2005 and the surge around 11 or 11:15 a.m. Different wind models indicate that could have occurred up to an hour earlier, he said.

He used a composite of evidence from FEMA, NOAA and other agencies to compile his report on Katrina’s impact.

On cross-examination, Weisberg said information was computer simulation, similar to what is used to forecast weather, and not based on eyewitness accounts.

On the other hand, it sounds as if Weisberg was quoting  the gospel of composite multi-source data  from the bible of Haag Engineering, Tim Marshall chapter one and two – data that doesn’t hold water as the saying goes.

Then again, State Farm’s attempt to use unqualified experts to determine Bossier’s cause of loss may be yet another reason to ask, Bossier v State Farm – collateral damage or just really bad bad faith claims handling?

6 thoughts on “State Farm’s expert[sic] all wet: Bossier v State Farm trial update”

  1. So solly, Chalie, but I’m “confused”. They are allowed to testify, but they can’t give “engineering opinions” about the cause of plaintiff’s loss? Isn’t that what the case is all about? Seems like Senter “giveth with one hand, and taketh with the other”. What does this “mean”, in practical (not “legalese”) terms, other than State Farms lawyers may have committed malpractice by not retaining “expert” witnesses holding Mississippi State licenses? Maybe the Judge’s charge to the jury will be something like: “You have heard testimony from witnesses who have been qualified as ‘experts’ in certain fields. You are charged that opinions expressed by such ‘expert’ witnesses may be disregarded in their entirety, if you determine that any of the said ‘experts’ were not qualified in a particular field.” So, they get to testify, and my guess is that there will be “plenty” of objections, and a totally confused jury.

  2. Decision is flat out wrong. Substantive state law does not trump Federal Rules of Evidence and associated jurisprudence.

    My thought is that Guice may have just given the 5th Circuit a bone to shove down her throat. Hopefully, in the end the 5th Circuit will conclude it was harmless error.

  3. NRB, I don’t believe you understand what took place. State Farm’s “experts” were not disqualified. They were allowed to testify and present their evidence (one did, I’m not certain if the other did or not just that it wasn’t mentioned in the Sun Herald story).

    per Judge Senter: State law prohibits anyone other than an engineer licensed by the State of Mississippi from determining what caused a structural failure.

    That is no different from laws that would prohibit someone with a degree in physical therapy from offering testimony as if they were an orthopedic surgeon.

    State Farm knows the law and made a deliberate decision not to hire a qualified engineer as they have in other cases.

    I don’t see the 5th circuit condoning such behavior – and would expect many people to wonder why such a highly regarded engineering professor does not hold a license. Teach my child he would not! Neither would I hire a “weather man” to tell me why the World Trade Center collapsed or a dentist to do open heart surgery.

  4. That is exactly right Nowdy, an oceanographer has no more clue as to structural failures than I do about brain surgery. To be an expert in a field you must qualify as one. OTOH I agree a license isn’t required should applicable experience in the field apply. Lewis O’Leary, for example, does not have the PE stamp but his background and experience makes him an expert in damage patterns IMHO.

    That said it is clear State Farm does not care what happens at this level as the decison was made to take this to Edith Jones and her band of idiots at the 5th Circuit months ago I suspect.

    Senter will let this go to the jury where even Edith can’t fuck up the verdict. And if the Bossiers prove bad faith in that phase of the trial (which they already have in the damages phase) then the Farm will get hit with extra contractual damages and perhaps punis. The key is to document the trial record and from the news reporting it sounds like Judy Guice is doing just that so she won’t get stuck with the question “Where is the bad faith in the trial record?”

    sop

  5. yeah, it only makes sense that a college (engineering)professor possesses “engineering knowledge,” but does that make him an “expert?” in the field? No, I don’t think so. There’s a big difference in teaching “engineering” and BEING a “hands on,” in the field type engineering EXPERT.

    I wonder if Professor Engineer has ever been on a “site inspection,” got his hands dirty and actually conducted an “engineering inspection” prior to rendering his “opinion”? You know, the type of behavior and expertise that is necessary to back an engineering opinion regarding – in this case – a SLABBED structure? I have no idea – just curious.

    SHIRLEY HEFLIN

  6. I admit that I was wrong if that is the type of person they were trying to get engineering testimony in through.

    Mea culpa, if that is in fact the case.

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