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Travelers Property Casualty Company of America v. All-South Subcontractors, Inc.

United States District Court, S.D. Alabama, Southern Division

April 13, 2018

TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA, Plaintiff,
v.
ALL-SOUTH SUBCONTRACTORS, INC., Defendant.

          ORDER

          WILLIAM H. STEELE, UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court on Defendant All-South Subcontractors, Inc.'s Motion to Exclude Testimony from Charles Whitley (doc. 45) and Defendant All-South Subcontractors, Inc.'s Motion for Summary Judgment (doc. 46). Both Motions have been extensively briefed and are now ripe for disposition.

         I. Background.[1]

         A. Nature of the Case.

         On the evening of May 2, 2016, a heavy rainstorm swept through southwestern Alabama. Such weather events are not uncommon in this area; indeed, an oft-cited statistic crowns Mobile, Alabama as the rainiest city in the United States. Nonetheless, this weather event was significant. During the storm, the roof of a warehouse building owned by non-party Thompson Tractor Company in Spanish Fort, Alabama collapsed. The roof collapse damaged not only the warehouse structure, but also the Caterpillar tractor parts inventory stored inside. Thompson's insurer, plaintiff Travelers Property Casualty Company of America, investigated the loss and ultimately paid out over $1 million in insurance benefits to Thompson.

         As subrogee under the applicable insurance policy, Travelers, standing in the shoes of its insured, filed suit against defendant All-South Subcontractors, Inc., to recover the insurance proceeds paid to Thompson. Travelers' theory is that All-South is responsible for Thompson's roof collapse because All-South had performed re-roofing services on that building in 2009-2010, and had responded to a service call from Thompson for a roof leak in 2014. Travelers' Complaint (doc. 1) pleads the following claims against All-South: (i) negligence and negligence per se, alleging that All-South failed to exercise reasonable care in performing work on the Thompson roof (Count I); (ii) negligent misrepresentation, alleging that All-South falsely represented to Thompson the work that it would perform, as well as the standard and end results of that work (Count II); (iii) breach of contract, alleging that All-South breached its contract with Thompson by failing to inspect, maintain, repair and/or replace the subject roof as agreed (Count III); and (iv) breach of express and implied warranties, alleging that Thompson breached a 15-year express warranty on the subject roof, breached the promises and warranties contained in its advertising materials, and breached implied warranties of fitness and merchantability under Alabama law (Count IV).

         Following the close of discovery, All-South filed a Motion for Summary Judgment, arguing that legal and/or factual defects in each of Travelers' causes of action entitle All-South to entry of judgment in its favor. Notably, in seeking summary judgment on Count I (negligence), All-South relies heavily on its contention that the opinions proffered by Travelers' structural engineering expert, Charles E. Whitley, P.E., must be excluded, and that in the absence of Whitley's opinions no reasonable finder of fact could determine that All-South breached a duty of care owed to Thompson. In furtherance of that argument, All-South filed a separate Motion to Exclude Testimony from Charles Whitley, which forms the starting point of this Court's analysis given its central importance to All-South's Rule 56 Motion.

         B. The Opinions of Charles Whitley.

         After being retained by Travelers and conducting a site inspection of the Thompson warehouse on May 12, 2016 (ten days after the roof collapse), Whitley authored a written expert report dated May 16, 2016. In that document, Whitley recited measurements and calculations concerning the drainage capacity of Thompson roof (which, based on the size of the drain openings and a 100-year hourly rainfall total of 4.5 inches, totaled 1, 726 square feet of roofing for each of the six drains), as compared to the minimum drainage requirements of the 2009 International Plumbing Code (which Whitley calculated at 2, 236.8 square feet of roofing for each of the six drains). On that basis, Whitley opined, “The calculations of the required drain sizes showed that the drains on the roof did not meet the requirements of the 2009 IPC.” (Doc. 48, Exh. U, at 2.) In that same report, Whitley observed that “[t]here were no overflow drains in the south side parapet wall, ” and that “[t]he lack of overflow drains is a violation of the 2009 IPC.” (Id. at 3.) Whitley's May 2016 report concluded, “The improper sizing of the roof drains and the lack of overflow drains are code violations that contributed to, and may be the sole cause of, the damage to the structure.” (Id.) He also noted the need for a weather analysis to determine whether excessive rainfall might have been a contributing factor.

         Whitley prepared a brief follow-up report on July 12, 2016, addressing the specific issue of whether corrosion discovered in a column near the center of the south wall of the warehouse structure and in structural steel members over the loading dock may have contributed to the roof collapse. (Doc. 54, Exh. B.) In the July 2016 report, Whitley explained that, after review of photographs and other information provided by Thompson, his opinion was this question was properly answered in the negative. In particular, Whitley reasoned, the corroded structural members were along the west face of the loading dock, but (i) “the west face of the loading dock is structurally independent of the warehouse, ” and (ii) “there was no collapse of the loading dock.” (Id. at 2.) As for the corroded column near the center of the south wall, Whitley observed that “columns near the center of the south wall were intact and in their original position after the collapse, ” so as to warrant a conclusion that “[w]ith the corroded column located in an area that was intact, the corrosion of the south wall column played no role in the collapse.” (Id.)

         On July 31, 2017, Whitley completed a more comprehensive written report on the Thompson roof collapse. The July 2017 report described in considerable detail the configuration of the roof and its drainage features both prior and subsequent to the All-South re-roofing project of January 2010. Whitley went on to explain in the July 2017 report the basis for his conclusion (gleaned from review of applicable codes as well as his understanding of the specific tasks performed by All-South) that All-South's work on the Thompson roof was governed by, and subject to, the 2006 and 2009 International Plumbing Code. (Doc. 48, Exh. Q, at 3-5.)[2] The July 2017 report also set forth the grounds for Whitley's conclusion, based on review of the International Plumbing Code and calculations of the drainage capabilities, that the roof's drainage capacity after All-South's work in January 2010 did not comport with the Code. (Id. at 5-8.) As part of that analysis, Whitley opined that the drain inserts installed by All-South had reduced the drainage capacity of the subject drains by 9%. (Id. at 8.) In Whitley's view, “the reduction of the size of the downspouts created by the installation of the inserts is a violation of the intent of” the Plumbing Code. (Id. at 8-9.) Whitley's July 2017 report also observed that the drain strainers installed by All-South did not extend the requisite four inches above the roof surface, and that “[t]he lack of a strainer that extended not less than four inches above the roof surface is a code violation.” (Id. at 9.) Whitley further reiterated his previous conclusion that “[w]hen All-South designed and installed the roof drainage system at the facility, they were required by the 2006 and 2009 IPC to install secondary or emergency roof drains, ” but they failed to do so. (Id.)

         In sum, Whitley's July 2017 report documented four distinct violations of the Plumbing Code (i.e., insufficient drainage capacity, improper reduction in drainage capacity, insufficient strainers, and lack of secondary drains) that were embodied in All-South's re-roofing project of January 2010. The conclusion of the July 2017 report was succinctly set forth as follows: “The above listed code violations resulted in an accumulation of water on the roof of the facility. The accumulation of water on the roof overloaded the structural system, resulting in the observed damage to the structure.” (Id. at 10.)

         II. All-South's Motion to Exclude Travelers' Expert Whitley.

         In a multi-pronged Motion to Exclude, All-South contends that Whitley's proffered opinions should be barred under Daubert principles. Specifically, All-South asserts that Whitley is not qualified to testify about structural load/capacity of the Thompson warehouse, code compliance, or causes of the roof collapse; that Whitley's methodology lacks the requisite reliability to assist the trier of fact; and that Whitley cannot testify about the applicable standard of care in the roofing industry.

         A. Legal Standard.

         The Federal Rules of Evidence, as construed by the Supreme Court in the landmark case of Daubert v. Merrell Dow Pharaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), “require[] expert scientific evidence to be both reliable and relevant pursuant to Rule 702, ” such that it “appropriately assists the trier of fact.” United States v. Henderson, 409 F.3d 1293, 1302 (11th Cir. 2005). In that regard, “[t]he court serves as a gatekeeper, charged with screening out experts whose methods are untrustworthy or whose expertise is irrelevant to the issue at hand.” Corwin v. Walt Disney Co., 475 F.3d 1239, 1250 (11th Cir. 2007). “The proponent of the expert testimony carries a substantial burden under Rule 702” to show admissibility by a preponderance of the evidence. Cook ex rel. Estate of Tessier v. Sheriff of Monroe County, Fla., 402 F.3d 1092, 1107 (11th Cir. 2005); see also Boca Raton Community Hosp., Inc. v. Tenet Health Care Corp., 582 F.3d 1227, 1232 (11th Cir. 2009) (“The offering party must show that the opinion meets the Daubert criteria, including reliable methodology and helpfulness to the factfinder …, by a preponderance of the evidence.”).

         As a general proposition, “[i]n determining the admissibility of expert testimony under Rule 702, a district court considers whether (1) the expert is qualified to testify competently regarding the matter he intends to address; (2) the methodology by which the expert reaches his conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Daubert; and (3) the testimony assists the trier of fact, through the application of scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in issue.” United States v. Douglas, 489 F.3d 1117, 1124-25 (11th Cir. 2007); see also Knight through Kerr v. Miami-Dade County, 856 F.3d 795, 808 (11th Cir. 2017) (similar). “While there is inevitably some overlap among the basic requirements - qualification, reliability, and helpfulness - they remain distinct concepts and the courts must take care not to conflate them.” Rosenfeld v. Oceana Cruises, Inc., 654 F.3d 1190, 1193 (11th Cir. 2011) (citation omitted).

         Courts have emphasized that “[t]he rules relating to Daubert issues are not precisely calibrated and must be applied in case-specific evidentiary circumstances that often defy generalization.” United States v. Brown, 415 F.3d 1257, 1266 (11th Cir. 2005). Moreover, a district court's gatekeeper role “is not intended to supplant the adversary system or the role of the jury.” United States v. Alabama Power Co., 730 F.3d 1278, 1282 (11th Cir. 2013) (citations omitted). Even in the aftermath of Daubert, “vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.” Id. (citations omitted). “[I]n most cases, objections to the inadequacies of a[n opinion] are more appropriately considered an objection going to the weight of the evidence rather than its admissibility.” Id. (citations omitted). Thus, disagreements as to the manner in which an expert performs an analysis may best “be aired out in front of the jury and tested by the crucible of cross-examination, ” without implicating the Daubert gatekeeping function. Tampa Bay Water v. HDR Engineering, Inc., 731 F.3d 1171, 1185 (11th Cir. 2013).

         B. Challenge to Whitley's Qualifications.

         As the first ground for its Motion to Exclude, All-South maintains that “Whitley is not qualified to testify competently” about matters of building load/capacity, code compliance, or causation of the roof collapse. (Doc. 45, at 4.) Certainly, before an expert's opinions may be admitted, “the expert must be qualified on the matter about which he intends to testify.” Hughes v. Kia Motors Corp., 766 F.3d 1317, 1329 (11th Cir. 2014). The Eleventh Circuit has explained that “experts may be qualified in various ways, including by scientific training, education, and experience.” Seamon v. Remington Arms Co., 813 F.3d 983, 988 (11th Cir. 2016) (citation and internal quotation marks omitted).

         Notwithstanding the manner in which this objection is framed, All-South identifies no factual basis for questioning Whitley's qualifications to testify about these particular matters. To the contrary, All-South concedes that “generally Whitley's education, training and experience as being a professionally licensed structural engineer would qualify him to testify as to his analysis and resulting opinions as to structural roof issues.” (Doc. 45, at 6.) All-South goes on to clarify that its objection is to Whitley's “failure to perform even the basic evaluations, measurements, calculations and testing - or, stated otherwise, his complete failure to use any methodology.” (Id.) That is a reliability/methodology objection, not a qualifications objection. As noted supra, these are distinct concepts in the Daubert analysis which must not be conflated. This objection is also redundant of the methodology challenge presented in a separate section of All-South's Motion. As such, defendant's objection purporting to allege that Whitley is not qualified to render opinions in this case is overruled, and that aspect of the Motion to Exclude is denied.

         C. Challenge to Whitley's Methodology.

         Over a 12-page span, All-South's Motion to Exclude identifies multiple respects in which it contends that “[t]he methodology by which Charles Whitley reaches his conclusions is not sufficiently reliable under Daubert and his testimony will not assist the trier of fact.” (Doc. 45, at 7.) The “reliability” prong examines “whether the reasoning or methodology underlying the testimony is scientifically valid and … whether that reasoning or methodology properly can be applied to the facts in issue.” Seamon, 813 F.3d at 988 (citation omitted). In determining whether an expert's methodology is reliable, courts consider “(1) whether the expert's methodology has been tested or is capable of being tested; (2) whether the technique has been subjected to peer review and publication; (3) the known and potential error rate of the methodology; and (4) whether the technique has been generally accepted in the proper scientific community.” Id. (citations omitted). However, this list is not exhaustive, and “the trial judge must have considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable.” Knight, 856 F.3d at 809 (citation omitted). At all times in this flexible inquiry, the court's focus must be “solely on principles and methodology, not on the conclusions that they generate.” Seamon, 813 F.3d at 988 (citation omitted).

         As an initial salvo, All-South contends that Whitley's opinion that All-South was responsible for the roof collapse was reached during his initial telephone call with Traveler's claims adjuster on May 10, 2016. According to All-South, Whitley formed this opinion “without performing any investigation or analysis” and “did not consider other possible causes.” (Doc. 45, at 7.) The deposition testimony runs directly to the contrary. Indeed, Whitley testified that, as to causation of the roof collapse, he “had not made any determination on May 10, 2016.” (Whitley Dep. (doc. 48, Exh. D), at 60-61.) Although All-South says that Whitley wrote on a form on May 10, 2016 “Cause (work in 2010), ”[3] Whitley's testimony was exceedingly clear that he had not reached any determinations as to cause on that date, that his notation on the form was simply “referencing work that was done in 2010 as something to be considered, ” and that he considered other potential causes “as the investigation was done.” (Whitley Dep., at 62.) Given the clarity of Whitley's explanation, All-South cannot exclude his opinions on the theory that “it is abundantly clear” Whitley reached a final causation opinion “without performing any investigation or analysis” and that he “did not consider other possible causes.” (Doc. 45, at 7.) At trial, defendant is free to cross-examine Whitley about the form and the meaning of particular notations.

         Next, All-South faults Whitley for failing to undertake “to determine the correct applicable building code, ” and cites Whitley's acknowledgment in his deposition that “[d]epending on what code the county is using, it could make a difference.” (Doc. 45, at 8; Whitley Dep., at 71.) Defendant is correct that Whitley's analysis revealed uncertainty as to whether the 2006 or the 2009 iterations of the International Building Code or the International Plumbing Code were applicable. Indeed, in his July 2017 report, Whitley noted that if the Thompson warehouse were located in Spanish Fort, Alabama, then the 2009 Codes applied as of January 2010, but that if it were located in an unincorporated area of Baldwin County, then the 2006 Codes governed. (Doc. 48, Exh. Q, at 3.) Whitley's July 2017 report analyzed code compliance under both the 2006 and the 2009 iterations of the Codes, finding no pertinent differences between the two. (Id. at 3-10.)[4] On this showing, there is no ...


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