Pursuant to Rule 50, Fed. R. Civ. P., Plaintiff moves for judgment as a matter of law on all issues concerning contract damages on the grounds that the jury did not have a legally sufficient evidentiary basis to find in favor of Defendant….
The law is clear that when considering a Rule 50 motion, “the Court must review all of the evidence from the record, draw all reasonable inferences in favor of the non-moving party, and may not make credibility determinations or weigh the evidence.” Poliner v. Texas Health Systems, 537 F.3d 368, 376 (5th Cir. 2008). While this standard is a heavy one, in the case sub judice the evidence presented at trial compelled a finding in favor of the Plaintiff. The jury’s contrary verdict should not be allowed to stand.
This Honorable Court denied Plaintiff’s Motion for Judgment as a Matter of Law after Defendant’s presentation of the evidence, but noted during the jury instruction conference that the motion probably should have been granted.
On blog and off, readers have consistently offered positive comments about Bossier’s counsel Judy Guice calling her an ethical, smart lawyer that fights for her clients. At least one has mentioned that putting clients first, not money, is what all lawyers are supposed to do.
Nothing is more telling of Guice’s client-first commitment to the practice of law than the Motion for Judgment As A Matter of Law or in the Alternative for a New Trial and the Memorandum of Support – both were filed Friday in Bossier v State Farm and followed by a relatedOrder from Judge Senter.
Guice’s Memorandum in Support of the Motion for Judgment as a Matter of Law put a compelling argument on the table:
Defendant bore the burden of proving that all of Plaintiff’s dwelling loss beyond that which had previously been paid resulted from storm surge flooding. It failed to carry this burden. Indeed, Defendant failed to offer a qualified expert witness on the issue of causation. Under Mississippi law, only a licensed professional engineer can give opinions concerning causation, yet Defendant failed to present any. See, Miss. Code Ann. § 73-13-1, et .seq.
The evidence was uncontradicted that high winds totally destroyed Plaintiff’s 1,000 square foot dwelling extension prior to the arrival of storm surge flooding on the property. This dwelling extension was located in close proximity to Plaintiff’s dwelling. The side of Plaintiff’s dwelling closest to the dwelling extension was completely missing. Professional engineer Ted Biddy testified that he personally observed that the east wall closest to the dwelling extension was blown in by winds.
Moreover, Defendant admitted that Plaintiff’s entire roof and parts of the exterior required replacement. Yet Defendant paid nothing for interior damage that would have occurred and offered no proof that the sole cause of such damage was excluded from storm surge. Defendant offered only photographs and unsubstantiated adjuster conclusions concerning the cause of loss. The photographs, however,demonstrated substantial upper level damage to the home, including soffit and fascia damage and roof damage that was well above the waterline.
State Farm representative Tip Pupua admitted that even afer adjusting the loss amount for paying only for a 25 year roof, State Farm erred again and paid only for a 30 year roof. Pupua admitted State Farm owed Plaintiff additional monies for a 40 year roof yet the jury ignored this uncontradicted testimony.
Proof also established that Plaintiff’s south side of the dwelling was completely encased in windows. The entire wall of windows was missing following the storm. Defense witnesses readily conceded that they did not and could not determine that none of the windows had been broken by wind.
The text that follows, no doubt, accounts for State Farm’s relative silence:
This Honorable Court denied Plaintiff’s Motion for Judgment as a Matter of Law after Defendant’s presentation of the evidence, but noted during the jury instruction conference that the motion probably should have been granted. While the Court permitted the case to go to the jury, it may, and should now, order judgment as a matter of law.
The Fifth Circuit Court of Appeals decision in Broussard v. State Farm Fire & Cas. Co., 523 F.3d 618 (5th Cir. 2008), supports grant of the Rule 50 motion in this case. Specifically, the Fifth Circuit’s reversal of this Honorable Court’s JMOL in Broussard was based solely on the testimony of State Farm’s expert witnesses who “testified that the damage to the actual structure of the Broussards’ home came from the storm surge.” Id. at 625. No such evidence was presented here. JMOL is appropriate in this case.
After Broussard, Judge Senter deciding to send the case to the jury was an understandable decision – particularly when the evidence was so clearly in Bossier’s favor as further demonstrated in the discussion of the alternative, a new trial:
In the alternative, the Court should grant a new trial as to all issues under Rule 59. Again, the standard is a familiar one. Specifically, a new trial may be granted when the verdict is “against the great [weight], not merely the preponderance, of the evidence.” Jones v. Wal-Mart Stores, Inc., 870 F.2d 982, 986 (5th Cir. 1989).
Of course, “the evidence must be viewed in a light most favorable to the jury’s verdict, and the verdict must be affirmed unless the evidence points so strongly and overwhelmingly in favor of one party that the court believes that reasonable men could not arrive at a contrary [conclusion].’” Id. at 987 (quoting Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir. 1969) (en banc)).
Here, the evidence was overwhelmingly in favor of Plaintiff. Plaintiff presented eyewitness testimony of Joseph Ziz who observed the substantial dwelling extension being destroyed by wind prior to the arrival of storm surge,flooding. Moreover, Plaintiff presented multiple claims file information of neighboring properties where engineers hired by State Farm found evidence of heavy wind damage in the area.
Plaintiff also presented the only professional engineer to testify at trial. This uncontradicted testimony was that the damage to Plaintiff’s home resulted from the winds of Hurricane Katrina.
In contrast, Defendant presented only photographs and conclusory lay opinion testimony from poorly trained and unqualified adjusters. The only expert witness presented by Defendant confirmed that the winds of Hurricane Katrina would have impacted Plaintiff’s property prior to excluded flood waters. State Farm wholly and utterly failed to meet its burden of proving that all or any of the unpaid damage to Plaintiff’s home was caused by storm surge.
Stated differently, Defendant failed to prove that none of the damage to Plaintiff’s home was caused by wind prior to the arrival of storm surge flooding. The evidence was so strongly and overwhelmingly in favor of Plaintiff that a new trial should and must be granted.
In addition, there exists in this case evidence of confusion on the part of the jury. During the jury’s deliberation on the punitive damages claim, a note was sent to the Court asking why Plaintiff did not have flood insurance. This was obviously an issue that was on the jury’s mind, although it had no relevance as to any issue in this case, whether punitive or compensatory damages.
Further confusion of the jury was evident when the jury was polled and juror number 1 vacillated as to whether the verdict read was in fact her verdict.
As compelling as the Memorandum is up to this point, the seal-the-deal text follows:
Plaintiff also submits that a new trial is required because of the erroneous form of the jury verdict during the compensatory damages phase of the trial.
While the Court’s instructions to the jury properly placed the burden of proving an exclusion to coverage on State Farm and advised the jury that Plaintiff had met his burden of proving that the dwelling damage was caused by an accidental direct physical loss and the personal property by windstorm, the jury verdict form was in conflict with said instructions and required the jury to find that the cause of loss was covered. In this regard, the jury verdict provided as follows:
The verdict form relating to the dwelling required the jury to find the damage was caused by wind, in effect negating the Court’s previous instructions that Plaintiff had met his burden of proof. Similarly, as to contents, while the Court had previously advised the jury that the contents were covered as caused by windstorm, the jury verdict form required the jury to find the loss was caused by windstorm. Thus, the jury verdict form, in conjunction with the instructions, produced a hopeless conflict concerning the burden of proof.
The last item entered on the docket Friday was an Order from Judge Senter noting:
My ruling, consistent with this opinion, is already a matter of record. The ruling I made from the bench has been formalized in opinion this 20th day of November, 2009.
The ruling was Senter’s decision on the testimony of Forrest Masters, retained by State Farm to testify as an expert in the field of engineering:
The Court has before it the plaintiff’s ore tenus motion to exclude the testimony of Forrest James Masters (Masters), one of State Farm Fire and Casualty Company’s (State Farm) expert witnesses. State Farm has retained Masters to testify as an expert in the field of engineering.
Masters is extensively educated, holding a Ph.D. in civil engineering. He meets the requirements of Rule 702 of the Federal Rules of Evidence in that he is qualified by knowledge, skill, experience, training, or education to testify in the form of an opinion on engineering issues.
Plaintiff’s objection to the admissibility of Masters’s testimony is not in the nature of a Daubert challenge nor is it based upon any alleged inadequacy in Masters’s engineering education, training, or expertise. If the plaintiff’s objection were based on the holding in Daubert, or on Masters’s qualifications as an expert under Rule 702, I would overrule the objection and allow Masters to testify.
The plaintiff’s challenge is not, however, grounded in Daubert or in the question of Masters’s education, training, or expertise. Plaintiff challenges Masters’ competency under Mississippi law, specifically §73-13-1, et seq. and the regulations enacted under these statutes. These state laws require that a professional engineer be certified in order to practice engineering in Mississippi, and these same statutes define the practice of engineering to include giving testimony as an expert in the field of engineering.
I am duty bound to follow Mississippi law in determining the competency of all witnesses in this diversity action. Federal Rules of Evidence 601 provides:
Rule 601. General Rule of Competency
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.
This is a diversity action. Therefore, both Rule 601 and Rule 703 of the Federal Rules of Evidence apply to Masters’s testimony, and the requirements of both rules must be met if Masters is to testify as an expert in this action. Not only must Masters be qualified as an expert under Rule 703, he must also be competent to testify as an expert in engineering under Mississippi law.
To put it in its simplest terms, the plaintiff asserts that Masters is statutorily disqualified from testifying in this case because he lacks the requisite certification as a professional engineer under Mississippi law. Plaintiff correctly points out that testifying as an expert in the field of engineering is within the definition of “practicing engineering” and therefore requires a Mississippi certificate of registration.
Masters is not licensed or certified as an engineer in Mississippi, nor is he licensed or certified as a practicing engineer in any other state. Masters is qualified as an engineer intern in Florida, and he earns his living primarily as an engineering teacher. The question before the Court is whether his lack of certification under Mississippi law as a professional engineer disqualifies him from testifying in this action under 73-13-1 et seq. and Rule 601 of the Federal Rules of Evidence.
Based on my review of the statutes and regulations on which the plaintiff relies, I agree with the plaintiff’s contention that giving expert testimony as an engineer is within the statutory definition of practicing engineering. Miss. Code Ann. §73-13-3. If the statute and regulations are to be honored, Masters must be disqualified as an expert in this case on the grounds that allowing his testimony in the absence of certification or a Regulation 4.05 certificate is inconsistent with Mississippi substantive law made binding on this Court in all diversity cases under Rule 601 of the Federal Rules of Evidence.
It would be my preference to allow Masters to testify were that option open under Mississippi law. The competing interest in this matter is the very important right of a party to present reliable evidence in support of its position. Defendant asserts that the statute and regulations impose an undue or unreasonable restriction on the Court’s control of evidence under the Federal Rules of Evidence.
This is not the first time this issue has arisen in the context of Hurricane Katrina litigation. In Aiken v. Rimkus, Civil Action No. 1:06cv741 LTS-RHW (Aiken), I excluded the substantive testimony of an expert engineer for his failure to meet the requirements imposed by §73-13-1 et seq. In Aiken, I attempted to ameliorate the effect of the statute by permitting the engineer in question to testify to establish the standard of care in his field, finding that this did not infringe the statutory restrictions. It proved impossible, however, to completely separate testimony concerning the standard of care from the forensic question whether that standard of care had been met. The importance of the Aiken case, from the Court’s point of view, is that it serves to give fair notice to the litigants and attorneys in Katrina cases that the statute and regulations at issue will be honored…
Judge Senter then recounts the cases he reviewed to guide his opinion before moving to a related review of the way other circuits have ruled on the important point of law the plaintiff has raised:
The matter before me is not an issue of admissibility concerning documentary evidence: it is an issue of the competency of an expert witness in this diversity case, an issue governed by Rule 601. This is a diversity action in which the substantive law of Mississippi applies…
There exists a split in authorities among the circuits on the question whether Rule 702 displaces Rule 601 in determining the competency of expert witnesses. The Sixth, Ninth, and Eleventh Circuits apply Rule 601. Legg v. Chopra, 286 F.3d 286, 289-92 (6 Cir.2002) (applying Tennessee th law); Higgenbottom v. Noreen, 586 F.2d 719, 720, 722 (9th Cir.1978) (applying Oregon law); McDowell v. Brown, 392 F.3d 1283, 1287, 1294-95 (11th Cir.2004) (applying Georgia law). The First, Fourth, and D.C.Circuits appear to rely on Rule 702 alone. Garbincius v. Boston Edison Co., 621 F.2d 1171, 1173 (1st Cir.1980); Bryte ex rel. Bryte v. Am. Household, Inc., 429 F.3d 469,475-76 (4th Cir.2005); Ealy v. Richardson-Merrell, Inc. 897 F.2d 1159, 1163 (D.C.Cir.1990).
I find that the requirements of Rule 702 and Rule 601 are cumulative. An expert must meet both the competency requirements of state law and the standard of qualification under Rule 702 and Daubert. I have identified no Fifth Circuit case that addresses this specific issue. Among the existing authorities, I find the cases that follow both the competency requirements of Rule 601 and the qualification requirements of Rule 702 persuasive.
Accordingly, I find Rule 601 applicable. Following the dictate of Rule 601, I find that Mississippi law governs the competency of Masters to testify as an expert in the field of engineering. I further find that Masters’ lack of the certification required by Miss. Code Ann. §73-13-1 et seq. and the regulations thereunder disqualify him from giving expert testimony concerning engineering issues in this case.
In light of Judge Senter’s reference to Aiken as giving fair notice to the litigants and attorneys in Katrina cases that the statute and regulations at issue will be honored, State Farm does not appear to have a leg to stand on. In fact, the Company has been requesting additional time to identify experts in a number of cases.