Engineering Expert Witness’ testimony on roof damage cause and extent deemed inadmissible

This is an insurance case arising out of a storm occurring on or about April 28, 2021, which allegedly caused damage to the roof of Plaintiff’s hotel located in San Antonio, Texas at 4 Piano Place, 78228. Plaintiff Nehal LLC d/b/a Quality Inn filed a claim to Defendant, Accelerant Specialty Insurance Company (“ASIC”) on or about March 20, 2022, after which the Plaintiff alleged the Defendant underpaid the claim. Nehal LLC then filed this action in state court alleging causes of action for breach of contract, violations of Section 542 of the Texas Insurance Code, unfair insurance practices in violation of Section 541 of the Texas Insurance Code, violations of the Texas Deceptive Trade Practice Act, and breach of the duty of good faith and fair dealing.

Plaintiff designated W. Tom Witherspoon, a licensed engineer in the State of Texas, to testify “regarding the condition of Plaintiff’s roof, the cause and extent of damage to Plaintiff’s roof, the proper method of restoring Plaintiff’s roof to its pre-loss condition, and any other matters within his expertise related to the wind and hail damage to Plaintiff’s roof.”

Witherspoon pointed to evidence of hail impact damage to the roof and recommended that the roof be replaced in his expert report.

So, ASIC filed a motion to exclude Witherspoon from testifying as an expert for Plaintiff on the basis that his report was unreliable and not relevant, and his conclusions were unreliable and not supported by any methodology.

Engineering Expert Witness

W. Tom Witherspoon is a Navy veteran and a licensed professional engineer in the State of Texas. He has been doing forensic analyses of hail damaged roofs for more than 25 years. He is also a certified Structural Repair Specialist. During his career, Witherspoon has done forensic evaluations of various buildings, homes and other structures affected by wind or hail more than 500 times.

Discussion by the Court

ASIC insisted on the inadmissibility of Witherspoon’s opinions due to certain inconsistencies.  First, the date Witherspoon marked as the storm date was different from the date Plaintiff alleged as the storm date. Second, Witherspoon failed to explicitly say that the storms he referred to caused the damage at issue. ASIC further contended that Witherspoon’s conclusions were unreliable and not supported by any methodology because the data he relied on was insufficient.

At the hearing, ASIC also further clarified that Plaintiff has admitted it did not replace the roof after obtaining funds to do so from a settlement from a prior insurance claim for roof damage. At the hearing, Plaintiff did not dispute that Plaintiff did not make any repairs to the roof despite receiving funds to do so from a prior claim.

Witherspoon’s testimony is not reliable

Witherspoon’s unreliable methodology and conclusions were objected to by ASIC. They argued that he failed to differentiate between prior damage—since the roof was not replaced or repaired after prior damage for which Plaintiff received a settlement—and the damage Plaintiff alleged occurred due to the 2021 storm. Given this clarification, the Court held that Plaintiff did not meet its burden to show that Witherspoon’s testimony was reliable.

Plaintiff designated Witherspoon as an expert who might testify as to the cause of damage to the Plaintiff’s roof. The Plaintiff previously settled a claim with a reported loss date of April 12, 2016, with another insurer for damage to the property’s roof.  The evidence also established that Plaintiff did not replace the roof after it settled that claim.

The Court noted that Witherspoon’s report and affidavit failed to address prior storms and did not attempt to differentiate damage caused by previous storms from that of the 2021 storm. Additionally, Witherspoon had not been deposed, and there is no recorded testimony from him specifically addressing the cause of the roof damage. Plaintiff submitted a sworn affidavit with its response, but the affidavit did not address whether Witherspoon analyzed or attempted to analyze what damage was attributable to prior storms versus the one at issue in this case. 

The Court held that there was no proof of Witherspoon incorporating consideration of prior damage, or even that Witherspoon was aware that Plaintiff had received a settlement for a prior storm yet not replaced the roof.

Held

The Court granted Defendant’s motion to strike report and testimony of Engineering Expert Witness W. Tom Witherspoon.

The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.

Key Takeaways:

1. ASIC Objected to Witherspoon’s Methodology: ASIC raised objections to the reliability of Witherspoon’s methodology and conclusions regarding the cause of damage to the Plaintiff’s roof. They argued that Witherspoon failed to differentiate between prior damage and damage allegedly caused by the 2021 storm.
2. Court’s Decision Based on Burden of Proof: The Court determined that Plaintiff failed to meet its burden to demonstrate the reliability of Witherspoon’s testimony. This determination stemmed primarily from Witherspoon’s analysis not accounting for prior damage and its potential impact on the current case.
3. Plaintiff’s Settlement and Roof Damage History: Plaintiff had settled a previous claim with another insurer for damage to the roof, dated April 12, 2016. Despite this settlement, the roof was not replaced, indicating a history of prior damage.
4. Witherspoon’s Report Limitations: Witherspoon’s report and affidavit did not address prior storms, and there was no attempt to differentiate damage caused by previous storms versus the 2021 storm. Additionally, Witherspoon had not been deposed, and there was no record of his specific testimony regarding the cause of roof damage.
5. Lack of Consideration for Prior Damage: The Court found no evidence that Witherspoon considered prior damage, nor was there evidence that he was aware of the Plaintiff’s settlement for a previous storm and the subsequent lack of roof replacement.

Case Details:

Case Caption:	Nehal Llc V. Accelerant Specialty Insurance Company
Docket Number:	5:23cv747
Court:	United States District Court, Texas Western
Citation:	2024 U.S. Dist. LEXIS 47407
Order Date:	February 29, 2024