Roof Damage Expert Allowed to Opine on Repair Feasibility

Plaintiffs Timothy J. Sterling and Sarah A. Sterling (“The Sterlings” or “Plaintiffs”) own a home at 4121 Crane Boulevard in Jackson, Mississippi. The declarations for homeowners Policy No. OF3039712 (the “Policy”) identify American Economy Insurance Company as the issuing insurer. The declarations also identify American Economy as “A SAFECO Company,” reflecting that American Economy issued the Policy under the Safeco brand. The Policy provided coverage from May 17, 2023, through May 17, 2024. This lawsuit features a dispute over whether certain hail damage to the Sterlings’ cedar-shake roof occurred during the Policy’s coverage period, and whether Defendants had a legitimate basis for denying the resulting insurance claim.

The Sterlings designated Cory Smith as their sole retained expert. Liberty subsequently designated, among others, Robert James and Kearson Strong.

Civil Engineering Expert Witness

Robert S. James, Ph.D., P.E. holds a B.C.E and M.S. in Civil Engineering from Auburn University and a Ph.D. in Civil Engineering from Mississippi State University. He has over 25 years of experience in research, testing, design, and construction of pavement and civil materials and residential and commercial building construction.

Get the full story on challenges to Robert James’s expert opinions and testimony with an in-depth Challenge Study.

Insurance Expert Witness

Kearson (Malmgren) Strong is a property claims consultant and claims handling expert with over 37 years experience in the insurance industry.

Want to know more about the challenges Kearson Strong has faced? Get the full details with our Challenge Study report.

Roof Damage Expert Witness

Cory Smith has more than ten years of experience assessing, estimating, investigating, and repairing residential roof damage.

Gain a comprehensive understanding of Cory Smith’s qualifications and casework history with his Expert Witness Profile report.

Discussion by the Court

A. Plaintiffs' Motion to Strike or Exclude Defendants' Experts

1. Robert James

Plaintiffs advanced two principal objections to James. First, they argued that the insurer did not possess James' report when it denied the claim and, therefore, could not use James to support the denial. Second, they contended that James' alleged findings duplicated the engineer whose report preceded the denial.

Plaintiffs’ first objection identifies a legitimate limitation on the purpose for which Defendants may use James’ testimony, but it does not justify excluding that testimony altogether. Mississippi law distinguishes between contractual coverage and an insurer’s arguable basis for denying a claim. When the dispute concerns contractual coverage, an insurer may invoke a policy exclusion even if it did not identify that exclusion in its denial letter.

When coverage exists and the dispute concerns whether the insurer acted in bad faith, however, the Court considers only the reasons the insurer communicated to the insured and the facts available to the insurer when it denied the claim—not reasons or evidence developed after litigation began.

James did not participate in the adjustment and cannot testify that the insurer actually relied upon his later report. Defendants also may not use his post-denial work to insert a new reason for denial or new historical information that the insurer lacked when it acted on the denial. Those restrictions do not make all of his engineering testimony irrelevant. The timing and cause of the hail damage remain relevant to contractual coverage. His testimony also may rebut Smith's causation opinions. To the extent James evaluates photographs, weather information, and other materials already contained in the claim record, he may explain their technical significance.

The Court therefore will permit James to offer otherwise admissible engineering opinions concerning the age, size, timing, and cause of the hail damage, including opinions responsive to Smith. Defendants may not present James' post-denial conclusions as information the insurer possessed or relied upon when it denied the claim. If Defendants offer his testimony on the extra- contractual claims, they must tie it to the stated denial reason and the contemporaneous facts; James may not create an after-the-fact reason for denial.

The cumulative-evidence objection does not justify wholesale exclusion before trial. The present submissions do not show that every James opinion will repeat the engineer's testimony. James’ testimony also serves the distinct purpose of rebutting Smith's causation analysis. This Court will not permit needlessly repetitive testimony. Accordingly, Sterlings may renew a focused Rule 403 objection if Defendants elicit substantially duplicative opinions at trial.

2. Kearson Strong

Strong is a claims-handling expert. Plaintiffs do not seek her complete exclusion. They challenge her opinions concerning hail damage, the insurer's post-suit payment, and a possible late-notice issue associated with a March 2023 storm.

Strong may explain customary property-claim practices, the significance of prompt reporting and inspection, and the manner in which a claims professional ordinarily evaluates roofloss information. She also may evaluate identified claims-handling steps against articulated industry standards, provided that she uses record materials disclosed to the Sterlings. Her testimony must identify the practice or standard, the disclosed facts she considered, and the reasoning that connects the two.

Several boundaries apply here. Strong may not tell the jury that the policy legally provided no coverage, that Defendants owed the Sterlings nothing, that the later payment waived or preserved a policy defense, or that any party acted in bad faith. Those are legal conclusions or matters reserved for the Court and jury. She also may not testify that Defendants made the post-suit payment as a favor, intended to benefit the Sterlings, intentionally overpaid the claim, or possessed some other subjective motive. Marlin rejects expert testimony that undertakes to determine a party's intent or state of mind. Accordingly, Strong may describe documented conduct and apply industry standards to it; she may not convert inferences about motive into expert facts.

Strong also may discuss observable roof conditions and how a claims handler would use those observations. She may not offer an independent engineering or meteorological causation opinion about the precise date, age, or size of the hail unless Defendants first establish that her qualifications and disclosed methodology satisfy Rule 702 for that distinct subject. Her claims-handling experience does not automatically qualify her to duplicate the engineers' technical causation opinions.

Strong's opinions about the post-suit payment must rest solely on non-privileged information disclosed to the Sterlings.

The evidentiary motion before the Court does not require the Court to decide the ultimate scope of any privilege or waiver. It does require a testable foundation for Strong's opinions. If Strong relied only on the supplemental discovery response and other produced materials, she may discuss what those materials show, subject to the restrictions above. Defendants may not use her as a conduit for undisclosed communications or reveal selected conclusions from withheld material, while preventing meaningful examination of their basis. Strong may not fill gaps in the disclosed record with speculation. Finally, Strong may explain why prompt notice matters to an insurer's ability to investigate a claimed March 2023 loss if that issue remains relevant after the Court decides the dispositive motions. She may not represent late notice as the reason Defendants denied the reported April 2024 claim, and Defendants may not use her testimony to rewrite the denial letter. The Court reserves any narrower relevance objection until the merits rulings establish which coverage theories and defenses remain for trial.

This Court permitted claims-handling testimony within the aforementioned limits, but excluded the legal conclusions, state-of-mind testimony, undisclosed-basis testimony, and unsupported technical causation testimony described above.

B. Defendants' Motion to Exclude Cory Smith

Smith personally inspected the Sterlings' roof before its replacement. Defendants instead argued that his short report stated conclusions without explaining a reliable method.

As a retained expert, Smith had to provide a report satisfying Federal Rule of Civil Procedure 26(a)(2)(B). The report identifies six opinions and supplies their principal bases. Smith described his experience, personal knowledge of the April 2024 storm, use of a HailTrace report, personal roof inspection, photographs, assessment of the cedar shakes and copper fixtures, and preparation of the contemporaneous Renova report. He also listed the additional materials he reviewed.

Smith's deposition further elaborated on this disclosed foundation. He testified that he inspected the elevations and roof slopes for several hours, used a shingle gauge as a reference for hail-indentation size, evaluated hail spatter as an indicator of recency, and considered alternative causes such as wear and tear and older weather events. That testimony explains the inspection practices underlying the opinions already stated in the report; it does not introduce a different causation theory or an undisclosed ultimate opinion.

Smith's method is experience-based and observational rather than laboratory-based. Smith inspected the roof soon after the reported storm, identified physical indicators he associates with hail impact and recency, compared those indicators with weather information, considered wear, tear, and earlier storms, and used his roofing experience to assess repair feasibility.

Defendants may challenge whether hail spatter reliably dates the damage, whether Smith adequately distinguished the April 2024 event from earlier storms, whether HailTrace data deserves weight, and whether his conclusion is stated with sufficient certainty. Those questions provide substantial ground for cross-examination. They do not establish that Smith merely guessed. The competing experts' disagreement over the same roof evidence reinforces that the jury must evaluate credibility and weight after the Court admits sufficiently reliable testimony from both sides.

Smith's report stated that the hail damage appeared recent and was consistent with the April 9-10, 2024 storm. It identifies his personal inspection, the Renova photographs and report, the HailTrace information, and his observations of the roof and copper fixtures. His deposition then explains the disclosed inspection process: he inspected every elevation and slope, used a shingle gauge, treated hail spatter as evidence of recency, and considered alternative causes.

Smith's report identified the recent hail opinion, the April 2024 storm, the inspection, the physical conditions, the photographs, and the weather information. The deposition supplied detail about how he performed that disclosed inspection and interpreted those disclosed conditions. On this record, the report gave Defendants notice of the opinions, principal reasons, and supporting information, and Defendants examined Smith at length about them. The Court will not permit Smith to offer a new ultimate opinion or materially different methodology beyond his report and reasonable elaboration of it, but Rule 26 does not require his exclusion.

Defendants' Rule 403 argument is derivative of their reliability challenge. Smith's testimony concerns central factual issues and carries substantial probative value. Careful examination, contrary experts, and appropriate instructions can address the asserted weaknesses without excluding the Sterlings' only retained expert.

Held

• The Court granted in part and denied in part Sterlings' motion to exclude Robert James' testimony and to limit Kearson Strong's testimony.

• The Court denied Defendants' motion to exclude the testimony of Cory Smith.

Key Takeaway

Smith does not rely on credentials alone. He identifies an inspection protocol, physical observations, measurement tools, weather information, and indicators he used to distinguish recent hail impact from older conditions.

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