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Filing # 191233458 E-Filed 02/05/2024 11:35:47 AM
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT
IN AND FOR OSCEOLA COUNTY, FLORIDA
VILLAS AT EMERALD LAKE
HOMEOWNERS ASSOCIATION, INC., a
Florida not for profit corporation,
Plaintiff,
v. CASE NO.: 2020-CA-002942-ON
ROYAL OAK HOMES, LLC, a Florida DEFENDANT, ROYAL OAK
limited liability company, f/k/a AVH HOMES, LLC’S, MOTION TO
ACQUISITION LLC; ADVANCED EXCLUDE EXTRAPOLATION
WRAPPING AND CONCRETE OPINIONS OF PLAINTIFF’S
SOLUTIONS OF CENTRAL FLORIDA, EXPERTS ON DAUBERT
INC., a Florida corporation; DON KING’S GROUNDS AND SUPPORTING
CONCRETE, INC., a Florida corporation; MEMORANDUM OF LAW
HUGH MACDONALD CONSTRUCTION,
INC., a Florida corporation; IMPERIAL
BUILDING CORPORATION, a Florida
corporation; PREMIER PLASTERING OF
CENTRAL FLORIDA, INC. n/k/a TGK
STUCCO, INC., a Florida corporation;
WEATHERMASTER BUILDING
PRODUCTS, INC., a Florida corporation;
WEINTRAUB INSPECTIONS &
FORENSICS, INC. n/k/a WEINTRAUB
ENGINEERING AND INSPECTIONS,
INC., a Florida corporation; THE DIMILLO
GROUP, LLC, a Florida limited liability
company; WOLF’S IRRIGATION &
LANDSCAPING, INC., a Florida
corporation; SUMMERPARK HOMES,
INC., a Florida corporation; BROWN +
COMPANY ARCHITECTURE, INC., a
Florida corporation;
EXPERT PAINTING & PRESSURE
WASHING, INC., a Florida corporation;
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Defendants.
/
ROYAL OAK HOMES, LLC, f/k/a AVH
ACQUISITION,
Crossclaim Plaintiff,
v.
ADVANCED WRAPPING AND
CONCRETE SOLUTIONS OF CENTRAL
FLORIDA, INC., a Florida corporation;
DON KING’S CONCRETE, INC., a Florida
corporation; HUGH MACDONALD
CONSTRUCTION, INC., a Florida
corporation; IMPERIAL BUILDING
CORPORATION, a Florida corporation;
PREMIER PLASTERING OF CENTRAL
FLORIDA, INC. n/k/a TGK STUCCO, INC.,
a Florida corporation; WEATHERMASTER
BUILDING PRODUCTS, INC., a Florida
corporation; WEINTRAUB INSPECTIONS
& FORENSICS, INC. n/k/a WEINTRAUB
ENGINEERING AND INSPECTIONS,
INC., a Florida corporation; WOLF’S
IRRIGATION & LANDSCAPING, INC., a
Florida corporation; BROWN + COMPANY
ARCHITECTURE, INC., a Florida
corporation; EXPERT PAINTING &
PRESSURE WASHING, INC., a Florida
corporation;
Crossclaim Defendants.
/
WEATHERMASTER BUILDING
PRODUCTS, INC., a Florida Corporation;
DON KING’S CONCRETE INC., a Florida
Corporation,
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135064760.1
Third-Party Plaintiff,
v.
ALL GLASS INSTALLATION COPRP., a
Florida corporation; CASEY HAWKINS
GLASS, INC., a Florida corporation; DEAN
NESBIT, LLC, a Florida limited liability
company; HELBERG ENGERPRISES,
LLC, a Florida limited liability company;
HOBBIT WINDOWS, LLC, a Florida
limited liability company; T&M
CONSTRUCTION OF SANFORD, INC., a
Florida corporation; WELL DONE
WINDOWS, INC., a Florida corporation;
and WELL HUNG WINDOWS & DOORS,
LLC, a Florida limited liability company;
E.R.O. CONSTRUCTION, INC., a Florida
Corporation; LIOS CONCRETE CORP., a
Florida Corporation; and ATLANTIC
CONCRETE SYSTEMS, INC., a Florida
Corporation,
Third-Party Defendants.
/
DEFENDANT, ROYAL OAK HOMES, LLC’S, MOTION TO EXCLUDE
EXTRAPOLATION OPINIONS OF PLAINTIFF’S EXPERTS ON DAUBERT
GROUNDS AND SUPPORTING MEMORANDUM OF LAW
INTRODUCTION
Based on a tiny sample of tested locations selected precisely because they
were likely defective, Plaintiff’s expert concluded that the hundreds of other, similar
but untested locations throughout the 10 buildings containing 76 townhomes
constructed by Royal Oak Homes, LLC’s (“Royal Oak”) subcontractors are also
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defective. Relying on this thin and unreliable evidentiary baseline, Plaintiff seeks to
recover the cost of removing and replacing all lower and upper roofs, all stucco on
the second floor exterior walls, all stucco around first floor windows, and an
assumed five percent allegedly “loose” stucco on the first floors, of all 10 buildings.
These extrapolation opinions are unscientific, unverifiable, and unreliable. They do
not meet the Daubert standard and are therefore inadmissible.
Royal Oak moves the Court to exclude the extrapolation opinions of the
experts for Plaintiff, Villas at Emerald Lake Homeowners Association, Inc.
(“Association”). This Motion is made pursuant to Florida Rule of Evidence 90.702,
as amended by In re: Amendments to the Florida Evidence Code, 278 So. 3d 551
(Fla. 2019), adopting the standards of Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579 (1993) and its progeny. Royal Oak supports this Motion with
sworn deposition testimony and affidavits but requests an evidentiary hearing,
including the presentation of expert testimony, to further support this Motion.
THE EMERALD LAKE TOWNHOME COMMUNITY
The Villas at Emerald Lake (“Emerald Lake”) is a townhome community
located in Kissimmee, Osceola County, Florida. There are 12 two-story buildings
containing 88 townhomes in Emerald Lake built in 2008 and between 2015 and
2017. (Deposition of Felix Martin, 35:21-25, 36:1-15, Ex. 6, p. 3, hereafter “Martin
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Dep.”). 1 Royal Oak served as the general contractor for 10 buildings (76
townhomes) built by its subcontractors between 2015 and 2017. (Id.)
The first floor for all 10 buildings is stucco over CMU. (Martin Dep., Ex. 6,
p. 3). The second floor for all 10 buildings is stucco over lath over wood-frame. (Id.).
The stucco and roofs were installed manually by subcontractors using different
crews or members of crews over the three-year construction period. (Id., 148:11-19,
149:2-11, 150:1-10).
PLAINTIFF’S “METHODOLOGY”
Plaintiff’s principal expert is Felix Martin, an engineer who devotes his
professional time primarily to consulting on litigated matters. (Martin Dep., 14:25,
15:1-11). Mr. Martin visually inspected and conducted destructive testing at limited
areas at the Emerald Lake townhomes. (Id., 35:21-25, 36:1-5, Ex. 6, p. 6). For
example, Mr. Martin removed only a single roof shingle at each of two upper roof
eaves on the roofs covering all 76 townhomes and a single shingle at each of two
roof eaves on lower roofs at the buildings. (Id., 169:20-25). And, he tested only
three of 56 roof diverter flashing locations at the lower roofs. (Id., 169:20-25, 183:3-
1 The deposition of Mr. Martin and relevant exhibits were filed with the Court on January 19,
2024. The same deposition citation format will be used for all volumes of Mr. Martin’s deposition
and for all other depositions filed with the Court in support of this Motion.
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16; Newkirk Dep., 48:18-22, 127:11-25, 128:1-3, Ex. 131, p. 16; Heaney Dep., 36:3-
13, 130:2-7, Ex. 27).2
Mr. Martin’s limited destructive testing was not restricted to the townhome
roofs. He performed destructive water testing of stucco areas around five windows,
four at the second floor and only one at the first floor, out of 473 first and second
floor windows. (Martin Dep., 81:17-25, 82:1-6, Ex. 6, p. 7; Newkirk Dep., Ex. 131,
p. 17; Heaney Dep., Ex. 27, Doors and Windows, Item 1). 3 Mr. Martin admittedly
never counted and therefore did not know the number of windows in the townhomes.
(Martin Dep., 81:23-25, 82-1-3, 192:4-6; 193:8-11). He performed destructive
testing at only four of scores of control joints in the second floor stucco on all 76
townhomes. (Id., Ex. 6, pp. 7, 13). Further, he performed destructive testing at the
stucco surrounding a single pipe penetration and only two dryer vent penetrations,
even though all 76 townhomes had at least one dryer vent and pipe penetration. (Id.,
239:7-15, 243:24-25, 244-245:1-6).
Notwithstanding these meager sample sizes for the roof and stucco
construction elements, Mr. Martin admits he extrapolates his opinions from this
2 Mr. Newkirk is a Florida licensed professional engineer and Royal Oak’s expert. Mr. Heaney is
Plaintiff’s cost expert. The depositions and relevant exhibits for Mr. Newkirk and Mr. Heaney in
support of this Motion were filed with the Court on January 19, 2024.
3 Mr. Martin also performed testing of stucco without water tests to determine if any moisture
intrusion existed around an additional seven windows, two on the second floor, and four on the
first floor of five of the 76 townhomes. (Martin Dep., Ex. 6, p. 7). Even so, that is only 12 of 473
windows, or 2.5 percent of the windows that Mr. Martin calls for replacement at Emerald Lake.
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limited testing to conclude that the same defects existed in (i) all construction
element areas not tested on the same townhomes, and (ii) all construction elements
on townhomes that were not tested at all. (see, e.g., Id., 323:25, 324:1-9; 445:20-25,
446:1-4). However, Mr. Martin did not employ a statistical random sampling method
to support any of his extrapolation opinions. (Id., 73:25, 74:1-13, 161:3-10, 324:20-
23).
Mr. Martin admits he did not randomly select locations for destructive testing
because “we were just looking for the material code violations themselves” and “that
was the only thing that we were essentially focused on” in selecting test locations.
(Id., 699:19-25, 700:1-5, 803:14-20). Indeed, Mr. Martin begins his assessment with
an “in-house” created list of pre-determined “architectural code” violations he is
looking for on every project. (Id., 38:15-24, 40:5-25, 41:1-3, 20-25, 42:1-8).
Mr. Martin attempts to justify the insufficient sample size based in part on his
“expectation” that the work was “the same quality,” (Id., 150:11-21), because “you
have a consistency in terms of installations that are violating the minimum
requirements of the Building Code.” (Id., 185:9-24). His “expectation” of this
“consistency” in installation defects is belied by his own investigation. His own
limited testing confirms that many of the allegedly defective “installation”
conditions were not “consistently” violating the Florida Building Code.
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Even where Mr. Martin alleges there was improper installation work at the
areas he tested, for the same areas he admits there was properly performed
installation work. (Id., 55:21-25, 56:1-2, 19-25, 57:1). So, while Mr. Martin prepared
a Defect List of alleged “architectural code” violations with his expert report, he also
prepared a “Non-Defect List.” (Id., 437:17-25, 438:1-2, Ex. 37).4 The Non-Defect
List identifies locations where he did not find the defect identified in his pre-
determined list of code violations. (Id., 440:3-9, Ex. 37).
The Non-Defect List proves there were no defects and/or damage at many of
the tested locations. For example, Mr. Martin admits that he found:
• Sufficiently placed cement sealant strip at three of four roof eave shingles
tested (Martin Dep., 169:10-19);
• Overdriven nails at only one of four roof shingle locations tested (Id.,
181:18-25, 182:1-3);
• Correctly installed starter shingle at three of the four roof shingle locations
tested (Id., 182:12-21);
• No damage at the lower and upper roofs for all four roof eave shingle
locations tested (Id., 174:7-16, 179:9-19, 180:21-25, 181:1, 182:8-25,
183:1-2);
• Correct size staples used to install the lath at 11 out of 15 locations tested
(Id., 215:12-15, Ex. 6, p. 12);
4
Mr. Martin failed to produce this Non-Defect List with his expert report. He initially denied even
preparing a Non-Defect List. (Martin Dep., 55:19-20). But he admitted that, as an engineer, he
was required to identify conditions installed correctly pursuant to the building code or industry
standards. (Id., 56:19-25, 57:1-20). Mr. Martin then admitted he did, in fact, identify conditions
installed correctly during his engineering assessment at the Emerald Lake townhomes in his Non-
Defect list and agreed to produce his Non-Defect List at his deposition. (Id., 57:21-25, 58:1,
437:17-25, 438:1-2, Ex. 37).
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• No stucco pulling away from the substrate as a result of incorrect staple
size or spacing (Id., 215:12-15, 216:11-25, 217:1-5, 218:21-25, 219:1-2,
Ex. 6. p. 12);
• No damaged sheathing at all four locations where the lath staples used
were too small (Id., 216:18-25, 217:1-5);
• No damaged sheathing at the two locations tested where the lath staples
were improperly spaced (Id., 219:3-9); and
• Allegedly improper lapping of lath at only one location tested, without
identifying the total locations tested. (Id., 219:24-25, 220:1-11, Ex. 6, p.
12).
The inconsistencies in the numbers of locations that Mr. Martin claims to have
tested for staple size, staple spacing, and lath lapping demonstrate a fundamental
problem with his method: he did not perform the same tests at every location. (Id.,
217:21-25, 218:1-20, 219:24-25, 220:1-19). For instance, of the 17 stucco locations
tested, he only tested the staple spacing at two locations. (Id., 217:21-25, 218:1-4).
Mr. Martin testified, “[s]o the staple spacing at those other [15] locations may be
incorrect, or they may be right. We don’t know.” (Id., 217:15-25, 218:1-20). As a
result, a non-defect analysis would not show any testing for staple spacing. (Id.,
218:5-11). Likewise, he testified when asked whether he recorded all observations
of proper lath lapping in his Non-Defect List: “No, because, once again, our work
scope is to determine whether a defective construction exists at the project.” (Id.,
220:12-19).
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Mr. Martin admits there is likely more code-compliant construction than was
actually recorded in his Non-Defect List.5 He chose not to extrapolate from any of
the non-defective, code-compliant installation conditions in the roof and stucco. Mr.
Martin’s Non-Defect List contradicts the assumption underlying his extrapolations
that, because he observed a defective condition at one location, the same conditions
exist at all similar locations. Manifestly, they do not.
Mr. Martin further testified that this “method” of selecting test locations and
sample sizes involves picking “representative” buildings that are “spread” across the
community. (Id., 156:16-25, 157:1-24). But, there is no written method before or
after his testing to explain how this is done. (Id., 86:20-25, 87:1-18, 78:2-24, 159:17-
25, 160:1-2). In fact, selection of the actual locations for destructive testing on
townhome buildings is left to the judgment of Mr. Ibarra, one of Mr. Martin’s
employees. (Id., 42:19-24, 86:17-25, 87:1-5). No written methodology or
instructions were provided to Mr. Martin’s employees about how to select the
locations for testing or how to conduct the testing. (Id., 63:22-25, 64:1-15, 87:11-
18). There are no written instructions for the scope of destructive testing, number
and types of pictures to take, or when and how to take and record measurements.
(Id., 87:19-25, 88:1-3, 15-21, 89:21-24, 92:3-13, 93:6-12).
5For example, Mr. Martin admits there was no damage at the stucco installation at one of the two
dryer vent locations tested and at three of the four control joint locations tested. (Martin Dep., Ex.
6, p. 7, Ex. 37, p. 13).
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MEMORANDUM OF LAW
A. Governing Legal Principles.
Section 90.702, Florida Statutes, provides in relevant part that an expert
witness may testify about scientific, technical, or other specialized knowledge in the
form of an opinion if: (i) the testimony is based upon sufficient facts or data; (ii) the
testimony is the product of reliable principles and methods; and (iii) the witness has
applied the principles and methods reliably to the facts of the case. Fla. Stat. §§
90.702–.705 (2021). The statute incorporates the standards set forth in Daubert and
its progeny for determining whether the proponent of expert testimony satisfies each
requirement governing its admissibility.
The proponent of the expert evidence – here, Plaintiff – bears the burden of
demonstrating that Daubert’s reliability requirements are met. Rink v. Cheminova,
Inc., 400 F.3d 1286, 1292 (11th Cir. 2005); Ramirez v. State, 651 So. 2d 1164, 1168
(Fla. 1995). Under Daubert, the Plaintiff must establish:
(1) the expert is qualified to testify competently regarding
the matters he intends to address; (2) the methodology by
which the expert reaches his conclusion 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.
Allison v. McGhan Med. Corp., 184 F.3d 1300, 1309 (11th Cir. 1999) (emphasis
added). Factors relevant to the reliability requirement include: (i) whether the
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expert’s technique or theory can be or has been tested, or instead reflects a
subjective, untestable approach; (ii) whether it has been subjected to peer review
and published; and (iii) its known or potential error rate. Additional factors include
whether the expert unjustifiably extrapolated from premises to unfounded
conclusions, as well as whether the expert relied on “experience” with no showing
how specific experience allows him or her to reach reliable conclusions, and whether
“analytical gaps” in the expert’s testimony render it unreliable. See Daubert, 509
U.S. at 593-95; Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997).
In particular, the inquiry into whether the expert’s technique or theory can be
or has been tested is essential to determine “whether the expert’s theory can be
challenged in some objective sense, or whether it is instead simply a subjective,
conclusory approach that cannot reasonably be assessed for reliability.” Fed. R.
Evid. 702, Advisory Committee Notes, 2000 Amendments. The reliability of an
expert’s methodology must be scrutinized at each step of the analysis, and a lack of
reliability at any step renders the testimony inadmissible. McClain v. Metabolife
Int’l, Inc., 401 F.3d 1233, 1245 (11th Cir. 2005). Under these standards, the expert’s
methodology must be sufficiently reliable, the facts on which the expert relies must
be sufficiently established, and the expert must reliably apply the methodology to
those facts. Fla. Stat. § 90.702(1)–(3); Allison, 184 F.3d at 1309; Kemp v. State, 280
So. 3d 81, 89 (Fla. 4th DCA 2019).
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Experience alone cannot support extrapolation opinions. As the district court
in Open Text S.A. v. Box, Inc., explained, an expert’s self-proclaimed “experience”
is not visible to the court or jury or testable by cross examination, but instead
amounts to “a black box into which data is fed at one end and from which an answer
emerges at the other.” 2015 WL 349197, at *6 (N.D. Cal. Jan. 23, 2015); Lee-Bolton
v. Koppers, Inc. 319 F.R.D. 346, 377-78 (N.D. Fla. 2017) (relying on Open Text
ruling expert testimony unreliable). Indeed, reliance on subjective, “[t]rust me, I
know it when I see it,” opinions is the opposite of a reliable, scientific approach. As
the Kemp court noted, “[n]othing in Daubert requires a court to ‘admit opinion
evidence that is connected to existing data only by the ipse dixit of the expert,’ and
a ‘court may conclude that there is simply too great an analytical gap between the
data and the opinion proffered.’” Kemp, 280 So. 3d at 89 (quoting Gen. Elec. Co.
v. Joinder, 522 U.S. 136, 146 (1997)). That is exactly the case with respect to Mr.
Martin’s extrapolation opinions.
Finally, the Daubert reliability standard is consistent with well-established
Florida law holding that an expert’s testimony must be based on facts supported by
the record. See, e.g., Arkin Constr. v. Simpkins, 99 So. 2d 557, 561 (Fla. 1957)
(ruling expert opinions based on facts or inferences not supported by the evidence
has “no evidential value”). “An expert’s opinion testimony is [likewise]
inadmissible if it is grounded on speculation, conjecture, or incorrect assumptions.”
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Doctors Co. v. Fla. Dep’t of Ins., 940 So. 2d 466, 470 (Fla. 1st DCA 2006); accord
All Am. Pool Surface, Inc. v. Jordan, 870 So. 2d 885, 886 (Fla. 3d DCA 2004); see
also Brito v. County of Palm Beach, 753 So. 2d 109, 114 (Fla. 4th DCA 1998) (“An
expert cannot simply assume the facts which form the basis of his opinion.”).
B. The Principles Applied: Mr. Martin is Not Qualified to Express
Opinions Resting on Statistics, and his Extrapolation Opinions
Lack a Scientifically Reliable Methodology.
(1) Plaintiff’s Extrapolation Opinions Do Not Rest on a Valid
Application of Statistical Principles.
As Dr. Jamie McClave, Royal Oak’s expert statistician, explains,
extrapolation is statistics. Extrapolation opinions are reliable only if based on valid
statistical sampling. (Affidavit of Dr. Jamie McClave (“McClave Aff.”), ¶¶ 4-5, Ex.
B, pp. 2-3). 6 To be valid, the sample must be randomly selected and large enough
to represent other similar conditions. Otherwise, the witness is simply ‘jumping to
conclusions’ without a valid scientific basis for admissible expert testimony.
As Dr. McClave further explains, random sampling must be extended to each
mutually exclusive group in the population to account for variability in the
population. (Id., Ex. B, pp. 2-3). And, the inherent uncertainty in making inferences
based on samples must be addressed, typically through calculating confidence
intervals, sometimes referred to as “margins of error.” (Id., Ex. B, p. 6).
6
The Affidavit of Dr. Jamie McClave in support of this Motion is filed separately with this Court.
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Thus, the initial sampling must be truly random, without any preconceived
bias. As Dr. McClave explains, judgment sampling is a form of biased sampling
where a person uses his or her own judgment about what sampling units might be
informative. (Id., Ex. B, p. 5). Dr. McClave further explains that judgment sampling
is not appropriate to extrapolate, i.e., determine how pervasive defects are across
Emerald Lake. (Id.). Only random sampling can lead to reliable extrapolation.
These principles are fundamental. They are set forth in basic textbooks on
statistics as well as ASTM standards for using statistics in material testing. (Id., ¶¶
4-8, Exs. B-E). 7 But a scientific application of these principles to particular data
requires statistical expertise. Lebron v. Secretary of Fla. Dept. of Children &
Families, 772 F.3d 1352, 1369 (11th Cir. 2014) (psychologist with no statistics
background not permitted to offer extrapolated opinions); Graves v. Plaza Medical
Ctrs., Corp., No. 10-23382-CIV-MORENO/O’SULLIVAN, 2017 WL 3895438, *4
(S.D. Fla. 2017) (expert who was not statistician and had no background in statistics
not permitted to opine on statistical significance of his analysis). 8
7 See McClave Aff. (i) Ex. C - ASTM E1402-13, “Standard Guide for Sampling Design;” (ii) Ex.
D - ASTM E2586-18, “Standard Practice for Calculating and Using Basic Statistics;” and (iii) Ex.
E - ASTM E141-10, “Standard Practice for Acceptance of Evidence Based on the Results of
Probability Sampling.”
8 This does not mean Mr. Martin must be a statistician to extrapolate. It simply means he must
have the education and/or experiential background to apply these fundamental statistical principles
to properly extrapolate. Mr. Newkirk, Royal Oak’s expert, for example, is a licensed, professional
engineer in Florida with the educational background and experience to perform statistical analysis
for extrapolation, which he has done when performing his own testing. (Newkirk Dep., 13:11-25,
14:1-25, 15:1-5, 17:10-12, 82:22-25, 83-99:1-3, 99:18-25, 100:1, Exs. 130, 131, p. 8).
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It is undisputed that Mr. Martin’s extrapolation opinions do not rest on a
proper application of the scientific principles governing statistical extrapolation. Mr.
Martin admits he is extrapolating opinions from areas tested to areas untested.
(Martin Dep., 323:25, 324:1-9, 445:20-25, 446:1-4). He also admits he did not
perform a statistical random sampling method and that he “would not be able to do
that” analysis. (Id., 73:25, 74:1-13, 161:3-10, 324:20-23). Mr. Martin is an engineer,
he is not a statistician, and he admits he is not qualified to perform statistical analysis.
(Martin Dep., 324:20-23).
Mr. Martin flatly admits that “we were just looking for the material code
violations themselves.” (Id., 699:19-25, 700:1-5, 803:14-20). He did not undertake
to do so by identifying random samples; quite to the contrary, he sought to
“investigate to find whether defective conditions exist; that’s my scope of work. I
wasn’t retained to find conditions that are Code compliant.” (Id., 55:19-25, 56:1-8).
This is a biased methodology, as Mr. Martin clearly concedes.
In sum, Mr. Martin did not use statistically valid random selection for testing
the construction elements in Emerald Lake. He did not follow the ASTM standards
that directly apply to his extrapolation opinions. Nor is Mr. Martin qualified to
validate the methodology necessary to draw valid statistical extrapolation
conclusions regarding the roof and stucco construction elements at Emerald Lake –
certainly not his non-random, destructive testing at a handful of locations selected
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precisely because he thought they were defective. See, e.g., Lebron, 772 F. 3d at
1369; Graves, 2017 3895438, *4; Impact v. Firestone, 893 F.2d 1189, 1195 (11th
Cir. 1990) (holding expert must be qualified on the discrete subject he is asked to
opine). Hence, his extrapolation opinions are unreliable and impermissibly
misleading. For this reason alone, Royal Oak’s Daubert motion should be granted.
(2) Mr. Martin’s “Methodology” for his Extrapolation Opinions
is Unscientific, Unverifiable, and Unreliable.
Mr. Martin’s extrapolation testimony is premised on an unscientific,
unverifiable, and unreliable methodology that he uses to reach litigation opinions.
Even a “supremely qualified expert” – which Mr. Martin is not in the field of
statistical extrapolation – “cannot waltz into the courtroom and render opinions
unless those opinions are…reliable and relevant under the test set forth by the
Supreme Court… .” Clark v. Takata Corp., 192 F.3d 750, 759, n.5 (7th Cir. 1999).
To determine the reliability of an expert’s testimony under Daubert, courts
should consider: 1) testing; 2) peer review; and 3) error rates. Daubert, 509 U.S. at
593-94. Further factors include whether the expert unjustifiably extrapolated from
premises to unfounded conclusions, and relied on “experience” with no showing
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how specific experience allows him or her to reach reliable conclusions. Id.
Application of these factors to Mr. Martin’s “method” demonstrates its unreliability.
(3) Mr. Martin’s “Method” is Biased Judgment Sampling.
Mr. Martin’s “method” is the opposite of random. It consists of picking only
known or suspected problem locations for destructive testing. Mr. Martin admits he
was looking for locations to test that he believed may contain non-code compliant
construction. (Martin Dep., 699:19-25, 700:1-5, 803:14-20). This is biased judgment
sampling. As Dr. McClave explains, this “method” cannot answer the question of
how pervasive that alleged installation defect is throughout Emerald Lake, even if it
actually exists at the test location. (McClave Aff., ¶ 5, Ex. B, p. 5). To answer that
question, as Dr. McClave further explains, Mr. Martin must employ random
sampling, which he admittedly did not do. (Id., Ex. B, pp. 2-4; Martin Dep., 73:25,
74:1-13, 161:3-10, 324:20-23). See Harbor House Condo. Assoc. v. Mass. Bay Ins.
Co., 703 F. Supp. 1313, 1316-18 (N.D. Ill. 1988) (expert testimony that pipes for all
278 units were leaking and thus damaged based on 23 leaking and repaired pipes
and non-random testing of pipes in six other units was not competent evidence, was
“pure speculation” and insufficient for the jury to find there were similar leaks at
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units not inspected). Extrapolation from such biased sampling is unscientific and
unreliable.
Mr. Martin’s extrapolation opinions also are so limited they cannot support
inferences beyond their locations. He tested the stucco at only 2.5 percent of the total
windows in Emerald Lake and the stucco at only four control joints, two dryer vents,
and one pipe penetration, among scores of second floor control joints and at least 76
dryer vents and pipe penetrations for each of the 76 townhomes. (Martin Dep.,
81:17-25, 82:1-6, 243:24-25, 244-245:1-6, Ex. 6, p. 7-8, 13; Newkirk Dep., Ex. 131,
p. 17; Heaney Dep., Ex. 27). He tested only roof eaves, not the roof fields, and only
a single shingle at each of two low and two upper roofs covering all 76 townhomes.
(Martin Dep., 169:23-25).
The small “sample” sizes of Mr. Martin’s tests compounds the lack of
randomness and bias in his “method.” (McClave Aff., ¶ 5, Ex. B, p. 6). Further, he
made no attempt to account for uncertainty in his test “method.” There are no
confidence interval or margin of error calculations for his “method.” (Id., pp. 7-10).
The statistically insignificant sample sizes with no determination of a margin of error
for his testing further demonstrates his “method” is unscientific and unreliable.
Mr. Martin’s “method” is not a proper basis for extrapolating his opinions
from tested locations to all non-tested locations. Mr. Martin points to no published
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materials suggesting his “method” is a proper statistical extrapolation methodology.
(Martin Dep., 18:19-25, 19:1-24, 163:1-17).
(4) Failure to Account for Key Variables.
Another fundamental flaw in Mr. Martin’s “method” exists because he failed
to account for variables in the manner in which the purported defects might arise
that necessarily impacts how prevalent the defects may be throughout Emerald Lake.
The townhomes were built over a three-year period by different subcontractors using
different crews. (Id., 148:11-19, 149:2-11, 150:1-10). The construction elements that
comprise the second floor stucco siding, for example, were installed manually by
different crews. (Id.). Mr. Martin admits there were “isolated incidents” or “random
occurrences” in the installation like the single bend in one fin of one window, which
he concedes was not a defect, and the allegedly improper lapping of the stucco lath
at one location. (Id., 219:24-25, 220:1-19, 351:19-21, 762:17-25, 763:1).
There is always the possibility that construction would be different when done
by different crews or different crew members – even Mr. Martin admits there was
code-compliant installation work even where he tested looking for non-compliance.
(Id., 55:21-25, 56:1-2, 19-25, 57:1). Yet, Mr. Martin did not account for variability
inherent in this manual construction installation process in his “method,” even
though his own test observations demonstrated it existed.
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Mr. Martin created a Non-Defect List of correctly installed construction
elements. (Id., 437:17-25, 438:1-2, Ex. 37). His Non-Defect List confirms his
observations of 12 different roof and 66 stucco installation conditions found to be
installed correctly at one or more test locations, including the lack of damage at
every lower and upper roof tested and at seven stucco locations tested. (Id., Ex. 37,
pp. 1-3, 5-15). The observations of correctly installed construction elements
recorded in his Non-Defect List demonstrates Mr. Martin’s ipse dixit opinion that,
with this townhome construction, a “consistency in terms” of installation practices
exist during construction is simply not true. (Id., 150:11-21, 185:9-24).
As Dr. McClave explains, stratified random sampling is the scientific, reliable
way to account for such variability in the construction. (McClave Aff., ¶ 5, Ex. B,
pp. 3, 7-9). This type of analysis is what Mr. Martin failed to do. His “trust me, I
know these things” approach cannot be allowed to pass the expert “gate” erected by
Daubert. This is precisely the type of area where a jury may give an expert too much
credence based on his credentials and conclude that the expert must be correct even
where common sense tells them he is not.
(5) Mr. Martin Relied on an Inapplicable ASTM Standard that
He Did Not Follow.
Mr. Martin claims he followed ASTM E2128, which, he further claims,
permits him to extrapolate his opinions from his limited test findings to all 76
Emerald Lake townhomes without using statistical random sampling. (Martin Dep.,
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58:13-25, 59:1-6). ASTM E2128 does not support extrapolation without random
sampling, and Mr. Martin did not follow it.
ASTM E2128, on its face, is intended for use to determine the cause of known
or suspected water leaks. (McClave Aff., ¶ 9, Ex. F – ASTM E2128-17, “Standard
Guide for Evaluating Water Leakage of Building Walls”). It necessarily is not a
standard for determining whether water intrusion exists elsewhere, whether
installation defects exist, or whether they are prevalent throughout the construction
of the building or multiple buildings. (Id.). ASTM E2128 repeatedly makes this
clear. Section 1.1 states “[t]his guide describes methods for determining and
evaluating causes of water leakage of exterior walls.” (Id.). Other sections similarly
provide: §4.1 (“It is intended for evaluating buildings that exhibit water leakage”);
§5.1 (”The methodology in this guide is a systematic approach to evaluating wall
leaks … .”). (Id.). Indeed, Section 10.1.1, “Recreate Leaks,” states the “primary
purpose of investigative testing is to recreate leaks that are known to occur.”
(emphasis added) (Id.; Martin Dep., 272:13-17, Ex. 16).
ASTM E2128 does not allow an expert to extrapolate conclusions about other
walls on the same townhome, or on other townhomes, other than the ones he actually
inspected and tested, without random sampling. When ASTM E2128 states that its
protocol “is not based on conventional hypothesis testing and quantitative random
sampling,” it expressly states that this is because the standard’s “starting premise”
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for its application “is that the building is suspected or known to leak.” (McClave
Aff., ¶ 9, Ex. F – ASTM E2128-17, §5.2) (emphasis added). By its own terms,
ASTM E2128 applies to inspection and testing to find the cause of a leak or leaks in
a particular building, not to extrapolating the existence of leaks to other buildings
that have not been tested or examined pursuant to its protocol.
The decisions in In re: Pella Corp. Architect and Designer Series Windows
Marketing, Sales Practices and Products Liability Litigation, 214 F. Supp. 3d 478
(D.S.C. 2016) and 269 F. Supp. 3d 685 (D.S.C. 2017), respectively, are instructive
with respect to the attempted application of ASTM E2128 by Mr. Martin to support
his extrapolation opinions. In these decisions, the District Court granted a motion to
exclude – and denied a motion to alter/amend that order to exclude – expert
extrapolation opinions under Daubert that relied upon ASTM E2128.
As the District Court summarized plaintiff’s position, its experts presented
testing and observation data for some windows to demonstrate a “product-wide”
defect, implicitly asserting their testing and observations were representative of the
performance of “the entire population of approximately 7.5 million [w]indows.”
Pella, 214 F. Supp. at 491. The court explained the “field of statistics provides the
traditional methods for making such an assertion.” Id. Conversely, the District Court
ruled ASTM E2128, relied upon by plaintiff’s experts to support their extrapolation
opinions, was a standard “used to identify the cause of specific instances of water
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infiltration[;]…not [to] purport to provide generalizable findings.” Id. at 492. The
District Court held “plaintiffs cannot rely on compliance with ASTM E2128 and
other, related standards to show that their findings can be reliably applied to all
[w]indows.” Id.
Mr. Martin, nevertheless, contends that ASTM E2128 “gives the building
professional a roadmap that they can follow and choose…sections from the standard
to determine which ones may be applicable or not to their particular circumstances,”
essentially asserting his “qualitative” judgment is sufficient by itself to support his
extrapolation opinions. (Martin Dep., 272:18-25, 273:1-13). This is not supported
by ASTM E2128.
The District Court rejected the same argument in the Pella window cases. As
the District Court explained, any argument that ASTM E2128 “leaves the bulk of
testing design to the expert’s discretion” must leave “the court without any means of
evaluating the reliability of” plaintiff’s testing. 214 F. Supp. at 488. “The court
cannot permit the plaintiffs to invoke ASTM E2128 as both a sword and shield.
Doing so would constitute an abdication of the court’s gatekeeping duty under
Daubert.” Id. Mr. Martin similarly cannot use ASTM E2128 as “both a sword and
shield” here to hide his extrapolation opinions behind his “expertise” and
“judgment.” That ipse dixit argument fails to meet the Daubert standard and should
be excluded.
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It remains only to note that D.R. Horton, Inc. – Jacksonville, v. Heron’s
Landing Condo. Ass’n of Jacksonville, Inc., 266 So. 3d 1201 (Fla. 1st DCA 2018)
in no way supports Mr. Martin’s extrapolation testimony and has no application here.
First, D.R. Horton was decided when the Frye standard was in effect. 266 So. 3d at
1207-08. Second, there is no peer review of Mr. Martin’s “method,” which the court
found existed in D.R. Horton. Finally, although plaintiff’s expert in D.R. Horton
claimed to follow ASTM E2128 like Mr. Martin does here, that ASTM has no
application to extrapolation opinions and Mr. Martin failed to follow its directions
despite relying on it. Id. at 1204.
(6) Lack of a Pre-Determined, Objective Test Method that
Cannot Reliably be Replicated.
Another fundamental problem with Mr. Martin’s opinions involves his failure
to employ any written methodology before or during testing that explained what he
was going to do, why, and how he was going to do it. There was no written protocol
or method provided to Mr. Martin’s employees on site that explained how to select
locations for testing and how to conduct that testing. (Martin Dep., 78:2-24, 86:20-
25, 87:1-18, 159:17-25).
Mr. Martin admits selection of the actual locations for testing was left to Mr.
Ibarra, one of his employees. (Id., 86:17-25, 87:1-5). We do not know how and why
Mr. Ibarra selected the actual locations tested for testing, and thus, the process of
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selecting test locations cannot be replicated. Replication is a fundamental
requirement of a valid scientific process. (McClave Aff., ¶ 5, Ex. B, pp. 6, 10-12).
The actual steps of the testing process at each test location also cannot be
replicated because there is no written method or protocol explaining them. There is
no written method explaining the size of the area tested, the types of pictures to be
taken, where, when, and how to take measurements, or how to conduct any water or
other tests at these locations. (Martin Dep., 87:19-25, 88:1-3, 15-21, 89:21-24, 92:3-
13, 93:6-12). Mr. Martin failed to document his methodology and preserve a record
of what was done such that his methodology could be understood and followed.
Absent this documentation, and the preservation of data in accordance with it, the
testing underlying Mr. Martin’s opinions cannot be replicated. Because the available
data is insufficient to replicate Mr. Martin’s “method,” it is not reliable. (McClave
Aff., ¶ 5, Ex. B, pp. 6, 10-12).
ASTM E2128, which Mr. Martin claims to follow, likewise has specific
protocols for documenting the expert’s test investigation methods and recording the
test results when determining the cause of a water leak. Section 9.7, entitled
“Documentation,” for example, emphasizes the importance of documenting steps
that are taken in the investigation in writing in a way for the evaluation process to
be repeated. Yet, Mr. Martin failed to document his test investigation methods.
ASTM E2128 also recommends a determination of the service history, which
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includes interviewing occupants, maintenance personnel, and obtaining and
reviewing maintenance and repair records to determine the extent of water leakage.
ASTM E2128, §§ 8, 8.1, 8.2, 8.3 and 8.4. Mr. Martin did none of these things. Mr.
Martin did not gather information from the homeowners, Plaintiff, or its
management company on any service history related to water leakage or moisture
intrusion problems. (Martin Dep., 288:11-18). Mr. Martin likewise did not obtain
maintenance or repair records. (Id., 72:21-25, 73:1-19, 317:9-17). He admits he had
no reports from any homeowner at a location he tested that indicated the owner was
experiencing water or moisture intrusion in their home. (Id., 288:11-18).
Mr. Martin argues that ASTM E2128 allows him to select which
recommended protocols to follow, such that he need not follow any particular one,
rather he may simply use his engineering judgment. (Id., 272:18-25, 273:1-13). But
Mr. Martin cannot have it both ways, just as the District Court in the Pella window
cases ruled. See 214 F. Supp. at 487-88. To the extent he relies on his “judgment” to
dispense with steps the ASTM standard he purports to follow provides, it necessarily
renders his attempt to borrow reliability and objectivity by relying on the standard
totally empty. Id., at 487 (The “court cannot allow plaintiffs to rely on ASTM E2128
to establish the reliability of their methodology while simultaneously allowing every
testing decision to escape scrutiny under the cloak of ‘professional judgment.’ If
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ASTM E2128 were interpreted this way, it would be so vague as to provide no
guidance at all.”).
We simply have to take Mr. Martin’s word that he had a “method” and that
he followed that “method” in arriving at his opinions. This is precisely the opposite
of Daubert’s mandate that the Court is not required to admit expert testimony based
solely on the expert’s own ipse dixit or “say so.” Kemp, 280 So. 3d at 89; Pella, 214
F. Supp. at 487-88; see also May v. State of Fla., 326 So. 3d 188, 193 (Fla. 1st DCA
2021). Yet, that is about all Mr. Martin has provided Royal Oak and the Court.
In all events, the burden is on the proponent of expert testimony – the Plaintiff
here – to establish all elements of admissibility, including reliability, by a
preponderance of the evidence. The reliability of the expert’s methodology must be
tested and pass muster at each step of the expert’s analysis. That is not the case for
Mr. Martin’s “method” or implementation of that “method.”
WHEREFORE, Defendant, Royal Oak Homes, LLC, respectfully requests
this Court enter an order granting its Daubert Motion and excluding the
extrapolation opinions of Plaintiff’s experts, and if permitted, the evidence
introduced at the evidentiary hearing in support of the Motion, and such further relief
as justice requires.
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Pursuant to Local Rule 5.3, I hereby certify that on February 1, 2024, counsel
for Royal Oak Homes, LLC, Fiona E. Foley Esq., conferred with counsel for
Plaintiff, Kayce Joyce, Esq., in a good faith effort to resolve the issues raised in this
Motion but the parties have been unable to resolve the issues.
Dated: February 5, 2024
/s/ J. Michael Walls
James Michael Walls
Florida Bar No. 706272
Luis Prats
Florida Bar No. 329096
Robin H. Leavengood
Florida Bar No. 0547751
Fiona E. Foley
Florida Bar No. 118668
Alexa M. Nordman
Florida Bar No. 1025863
CARLTON FIELDS, P.A.
4221 W. Boy Scout Boulevard
Tampa, FL 33607-5780
Telephone: (813) 223-7000
Facsimile: (813) 229-4133
mwalls@carltonfields.com
lprats@carltonfields.com
rleavengood@carltonfields.com
anordman@carltonfields.com
slambe@carltonfields.com
ffoley@carltonfields.com
fgonzalez@carltonfields.com
Attorneys for Defendant, Royal Oak Homes,
LLC
29
135064760.1
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on February 5, 2024, the foregoing was
electronically filed with the Clerk of the Court by using the E-filing Portal, which
will electronically serve this document to all registered counsel of record.
/s/ J. Michael Walls
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135064760.1
Preview
Filing # 191233458 E-Filed 02/05/2024 11:35:47 AM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA VILLAS AT EMERALD LAKE HOMEOWNERS ASSOCIATION, INC., a Florida not for profit corporation, Plaintiff, v. CASE NO.: 2020-CA-002942-ON ROYAL OAK HOMES, LLC, a Florida DEFENDANT, ROYAL OAK limited liability company, f/k/a AVH HOMES, LLC’S, MOTION TO ACQUISITION LLC; ADVANCED EXCLUDE EXTRAPOLATION WRAPPING AND CONCRETE OPINIONS OF PLAINTIFF’S SOLUTIONS OF CENTRAL FLORIDA, EXPERTS ON DAUBERT INC., a Florida corporation; DON KING’S GROUNDS AND SUPPORTING CONCRETE, INC., a Florida corporation; MEMORANDUM OF LAW HUGH MACDONALD CONSTRUCTION, INC., a Florida corporation; IMPERIAL BUILDING CORPORATION, a Florida corporation; PREMIER PLASTERING OF CENTRAL FLORIDA, INC. n/k/a TGK STUCCO, INC., a Florida corporation; WEATHERMASTER BUILDING PRODUCTS, INC., a Florida corporation; WEINTRAUB INSPECTIONS & FORENSICS, INC. n/k/a WEINTRAUB ENGINEERING AND INSPECTIONS, INC., a Florida corporation; THE DIMILLO GROUP, LLC, a Florida limited liability company; WOLF’S IRRIGATION & LANDSCAPING, INC., a Florida corporation; SUMMERPARK HOMES, INC., a Florida corporation; BROWN + COMPANY ARCHITECTURE, INC., a Florida corporation; EXPERT PAINTING & PRESSURE WASHING, INC., a Florida corporation; 1 135064760.1 Defendants. / ROYAL OAK HOMES, LLC, f/k/a AVH ACQUISITION, Crossclaim Plaintiff, v. ADVANCED WRAPPING AND CONCRETE SOLUTIONS OF CENTRAL FLORIDA, INC., a Florida corporation; DON KING’S CONCRETE, INC., a Florida corporation; HUGH MACDONALD CONSTRUCTION, INC., a Florida corporation; IMPERIAL BUILDING CORPORATION, a Florida corporation; PREMIER PLASTERING OF CENTRAL FLORIDA, INC. n/k/a TGK STUCCO, INC., a Florida corporation; WEATHERMASTER BUILDING PRODUCTS, INC., a Florida corporation; WEINTRAUB INSPECTIONS & FORENSICS, INC. n/k/a WEINTRAUB ENGINEERING AND INSPECTIONS, INC., a Florida corporation; WOLF’S IRRIGATION & LANDSCAPING, INC., a Florida corporation; BROWN + COMPANY ARCHITECTURE, INC., a Florida corporation; EXPERT PAINTING & PRESSURE WASHING, INC., a Florida corporation; Crossclaim Defendants. / WEATHERMASTER BUILDING PRODUCTS, INC., a Florida Corporation; DON KING’S CONCRETE INC., a Florida Corporation, 2 135064760.1 Third-Party Plaintiff, v. ALL GLASS INSTALLATION COPRP., a Florida corporation; CASEY HAWKINS GLASS, INC., a Florida corporation; DEAN NESBIT, LLC, a Florida limited liability company; HELBERG ENGERPRISES, LLC, a Florida limited liability company; HOBBIT WINDOWS, LLC, a Florida limited liability company; T&M CONSTRUCTION OF SANFORD, INC., a Florida corporation; WELL DONE WINDOWS, INC., a Florida corporation; and WELL HUNG WINDOWS & DOORS, LLC, a Florida limited liability company; E.R.O. CONSTRUCTION, INC., a Florida Corporation; LIOS CONCRETE CORP., a Florida Corporation; and ATLANTIC CONCRETE SYSTEMS, INC., a Florida Corporation, Third-Party Defendants. / DEFENDANT, ROYAL OAK HOMES, LLC’S, MOTION TO EXCLUDE EXTRAPOLATION OPINIONS OF PLAINTIFF’S EXPERTS ON DAUBERT GROUNDS AND SUPPORTING MEMORANDUM OF LAW INTRODUCTION Based on a tiny sample of tested locations selected precisely because they were likely defective, Plaintiff’s expert concluded that the hundreds of other, similar but untested locations throughout the 10 buildings containing 76 townhomes constructed by Royal Oak Homes, LLC’s (“Royal Oak”) subcontractors are also 3 135064760.1 defective. Relying on this thin and unreliable evidentiary baseline, Plaintiff seeks to recover the cost of removing and replacing all lower and upper roofs, all stucco on the second floor exterior walls, all stucco around first floor windows, and an assumed five percent allegedly “loose” stucco on the first floors, of all 10 buildings. These extrapolation opinions are unscientific, unverifiable, and unreliable. They do not meet the Daubert standard and are therefore inadmissible. Royal Oak moves the Court to exclude the extrapolation opinions of the experts for Plaintiff, Villas at Emerald Lake Homeowners Association, Inc. (“Association”). This Motion is made pursuant to Florida Rule of Evidence 90.702, as amended by In re: Amendments to the Florida Evidence Code, 278 So. 3d 551 (Fla. 2019), adopting the standards of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and its progeny. Royal Oak supports this Motion with sworn deposition testimony and affidavits but requests an evidentiary hearing, including the presentation of expert testimony, to further support this Motion. THE EMERALD LAKE TOWNHOME COMMUNITY The Villas at Emerald Lake (“Emerald Lake”) is a townhome community located in Kissimmee, Osceola County, Florida. There are 12 two-story buildings containing 88 townhomes in Emerald Lake built in 2008 and between 2015 and 2017. (Deposition of Felix Martin, 35:21-25, 36:1-15, Ex. 6, p. 3, hereafter “Martin 4 135064760.1 Dep.”). 1 Royal Oak served as the general contractor for 10 buildings (76 townhomes) built by its subcontractors between 2015 and 2017. (Id.) The first floor for all 10 buildings is stucco over CMU. (Martin Dep., Ex. 6, p. 3). The second floor for all 10 buildings is stucco over lath over wood-frame. (Id.). The stucco and roofs were installed manually by subcontractors using different crews or members of crews over the three-year construction period. (Id., 148:11-19, 149:2-11, 150:1-10). PLAINTIFF’S “METHODOLOGY” Plaintiff’s principal expert is Felix Martin, an engineer who devotes his professional time primarily to consulting on litigated matters. (Martin Dep., 14:25, 15:1-11). Mr. Martin visually inspected and conducted destructive testing at limited areas at the Emerald Lake townhomes. (Id., 35:21-25, 36:1-5, Ex. 6, p. 6). For example, Mr. Martin removed only a single roof shingle at each of two upper roof eaves on the roofs covering all 76 townhomes and a single shingle at each of two roof eaves on lower roofs at the buildings. (Id., 169:20-25). And, he tested only three of 56 roof diverter flashing locations at the lower roofs. (Id., 169:20-25, 183:3- 1 The deposition of Mr. Martin and relevant exhibits were filed with the Court on January 19, 2024. The same deposition citation format will be used for all volumes of Mr. Martin’s deposition and for all other depositions filed with the Court in support of this Motion. 5 135064760.1 16; Newkirk Dep., 48:18-22, 127:11-25, 128:1-3, Ex. 131, p. 16; Heaney Dep., 36:3- 13, 130:2-7, Ex. 27).2 Mr. Martin’s limited destructive testing was not restricted to the townhome roofs. He performed destructive water testing of stucco areas around five windows, four at the second floor and only one at the first floor, out of 473 first and second floor windows. (Martin Dep., 81:17-25, 82:1-6, Ex. 6, p. 7; Newkirk Dep., Ex. 131, p. 17; Heaney Dep., Ex. 27, Doors and Windows, Item 1). 3 Mr. Martin admittedly never counted and therefore did not know the number of windows in the townhomes. (Martin Dep., 81:23-25, 82-1-3, 192:4-6; 193:8-11). He performed destructive testing at only four of scores of control joints in the second floor stucco on all 76 townhomes. (Id., Ex. 6, pp. 7, 13). Further, he performed destructive testing at the stucco surrounding a single pipe penetration and only two dryer vent penetrations, even though all 76 townhomes had at least one dryer vent and pipe penetration. (Id., 239:7-15, 243:24-25, 244-245:1-6). Notwithstanding these meager sample sizes for the roof and stucco construction elements, Mr. Martin admits he extrapolates his opinions from this 2 Mr. Newkirk is a Florida licensed professional engineer and Royal Oak’s expert. Mr. Heaney is Plaintiff’s cost expert. The depositions and relevant exhibits for Mr. Newkirk and Mr. Heaney in support of this Motion were filed with the Court on January 19, 2024. 3 Mr. Martin also performed testing of stucco without water tests to determine if any moisture intrusion existed around an additional seven windows, two on the second floor, and four on the first floor of five of the 76 townhomes. (Martin Dep., Ex. 6, p. 7). Even so, that is only 12 of 473 windows, or 2.5 percent of the windows that Mr. Martin calls for replacement at Emerald Lake. 6 135064760.1 limited testing to conclude that the same defects existed in (i) all construction element areas not tested on the same townhomes, and (ii) all construction elements on townhomes that were not tested at all. (see, e.g., Id., 323:25, 324:1-9; 445:20-25, 446:1-4). However, Mr. Martin did not employ a statistical random sampling method to support any of his extrapolation opinions. (Id., 73:25, 74:1-13, 161:3-10, 324:20- 23). Mr. Martin admits he did not randomly select locations for destructive testing because “we were just looking for the material code violations themselves” and “that was the only thing that we were essentially focused on” in selecting test locations. (Id., 699:19-25, 700:1-5, 803:14-20). Indeed, Mr. Martin begins his assessment with an “in-house” created list of pre-determined “architectural code” violations he is looking for on every project. (Id., 38:15-24, 40:5-25, 41:1-3, 20-25, 42:1-8). Mr. Martin attempts to justify the insufficient sample size based in part on his “expectation” that the work was “the same quality,” (Id., 150:11-21), because “you have a consistency in terms of installations that are violating the minimum requirements of the Building Code.” (Id., 185:9-24). His “expectation” of this “consistency” in installation defects is belied by his own investigation. His own limited testing confirms that many of the allegedly defective “installation” conditions were not “consistently” violating the Florida Building Code. 7 135064760.1 Even where Mr. Martin alleges there was improper installation work at the areas he tested, for the same areas he admits there was properly performed installation work. (Id., 55:21-25, 56:1-2, 19-25, 57:1). So, while Mr. Martin prepared a Defect List of alleged “architectural code” violations with his expert report, he also prepared a “Non-Defect List.” (Id., 437:17-25, 438:1-2, Ex. 37).4 The Non-Defect List identifies locations where he did not find the defect identified in his pre- determined list of code violations. (Id., 440:3-9, Ex. 37). The Non-Defect List proves there were no defects and/or damage at many of the tested locations. For example, Mr. Martin admits that he found: • Sufficiently placed cement sealant strip at three of four roof eave shingles tested (Martin Dep., 169:10-19); • Overdriven nails at only one of four roof shingle locations tested (Id., 181:18-25, 182:1-3); • Correctly installed starter shingle at three of the four roof shingle locations tested (Id., 182:12-21); • No damage at the lower and upper roofs for all four roof eave shingle locations tested (Id., 174:7-16, 179:9-19, 180:21-25, 181:1, 182:8-25, 183:1-2); • Correct size staples used to install the lath at 11 out of 15 locations tested (Id., 215:12-15, Ex. 6, p. 12); 4 Mr. Martin failed to produce this Non-Defect List with his expert report. He initially denied even preparing a Non-Defect List. (Martin Dep., 55:19-20). But he admitted that, as an engineer, he was required to identify conditions installed correctly pursuant to the building code or industry standards. (Id., 56:19-25, 57:1-20). Mr. Martin then admitted he did, in fact, identify conditions installed correctly during his engineering assessment at the Emerald Lake townhomes in his Non- Defect list and agreed to produce his Non-Defect List at his deposition. (Id., 57:21-25, 58:1, 437:17-25, 438:1-2, Ex. 37). 8 135064760.1 • No stucco pulling away from the substrate as a result of incorrect staple size or spacing (Id., 215:12-15, 216:11-25, 217:1-5, 218:21-25, 219:1-2, Ex. 6. p. 12); • No damaged sheathing at all four locations where the lath staples used were too small (Id., 216:18-25, 217:1-5); • No damaged sheathing at the two locations tested where the lath staples were improperly spaced (Id., 219:3-9); and • Allegedly improper lapping of lath at only one location tested, without identifying the total locations tested. (Id., 219:24-25, 220:1-11, Ex. 6, p. 12). The inconsistencies in the numbers of locations that Mr. Martin claims to have tested for staple size, staple spacing, and lath lapping demonstrate a fundamental problem with his method: he did not perform the same tests at every location. (Id., 217:21-25, 218:1-20, 219:24-25, 220:1-19). For instance, of the 17 stucco locations tested, he only tested the staple spacing at two locations. (Id., 217:21-25, 218:1-4). Mr. Martin testified, “[s]o the staple spacing at those other [15] locations may be incorrect, or they may be right. We don’t know.” (Id., 217:15-25, 218:1-20). As a result, a non-defect analysis would not show any testing for staple spacing. (Id., 218:5-11). Likewise, he testified when asked whether he recorded all observations of proper lath lapping in his Non-Defect List: “No, because, once again, our work scope is to determine whether a defective construction exists at the project.” (Id., 220:12-19). 9 135064760.1 Mr. Martin admits there is likely more code-compliant construction than was actually recorded in his Non-Defect List.5 He chose not to extrapolate from any of the non-defective, code-compliant installation conditions in the roof and stucco. Mr. Martin’s Non-Defect List contradicts the assumption underlying his extrapolations that, because he observed a defective condition at one location, the same conditions exist at all similar locations. Manifestly, they do not. Mr. Martin further testified that this “method” of selecting test locations and sample sizes involves picking “representative” buildings that are “spread” across the community. (Id., 156:16-25, 157:1-24). But, there is no written method before or after his testing to explain how this is done. (Id., 86:20-25, 87:1-18, 78:2-24, 159:17- 25, 160:1-2). In fact, selection of the actual locations for destructive testing on townhome buildings is left to the judgment of Mr. Ibarra, one of Mr. Martin’s employees. (Id., 42:19-24, 86:17-25, 87:1-5). No written methodology or instructions were provided to Mr. Martin’s employees about how to select the locations for testing or how to conduct the testing. (Id., 63:22-25, 64:1-15, 87:11- 18). There are no written instructions for the scope of destructive testing, number and types of pictures to take, or when and how to take and record measurements. (Id., 87:19-25, 88:1-3, 15-21, 89:21-24, 92:3-13, 93:6-12). 5For example, Mr. Martin admits there was no damage at the stucco installation at one of the two dryer vent locations tested and at three of the four control joint locations tested. (Martin Dep., Ex. 6, p. 7, Ex. 37, p. 13). 10 135064760.1 MEMORANDUM OF LAW A. Governing Legal Principles. Section 90.702, Florida Statutes, provides in relevant part that an expert witness may testify about scientific, technical, or other specialized knowledge in the form of an opinion if: (i) the testimony is based upon sufficient facts or data; (ii) the testimony is the product of reliable principles and methods; and (iii) the witness has applied the principles and methods reliably to the facts of the case. Fla. Stat. §§ 90.702–.705 (2021). The statute incorporates the standards set forth in Daubert and its progeny for determining whether the proponent of expert testimony satisfies each requirement governing its admissibility. The proponent of the expert evidence – here, Plaintiff – bears the burden of demonstrating that Daubert’s reliability requirements are met. Rink v. Cheminova, Inc., 400 F.3d 1286, 1292 (11th Cir. 2005); Ramirez v. State, 651 So. 2d 1164, 1168 (Fla. 1995). Under Daubert, the Plaintiff must establish: (1) the expert is qualified to testify competently regarding the matters he intends to address; (2) the methodology by which the expert reaches his conclusion 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. Allison v. McGhan Med. Corp., 184 F.3d 1300, 1309 (11th Cir. 1999) (emphasis added). Factors relevant to the reliability requirement include: (i) whether the 11 135064760.1 expert’s technique or theory can be or has been tested, or instead reflects a subjective, untestable approach; (ii) whether it has been subjected to peer review and published; and (iii) its known or potential error rate. Additional factors include whether the expert unjustifiably extrapolated from premises to unfounded conclusions, as well as whether the expert relied on “experience” with no showing how specific experience allows him or her to reach reliable conclusions, and whether “analytical gaps” in the expert’s testimony render it unreliable. See Daubert, 509 U.S. at 593-95; Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997). In particular, the inquiry into whether the expert’s technique or theory can be or has been tested is essential to determine “whether the expert’s theory can be challenged in some objective sense, or whether it is instead simply a subjective, conclusory approach that cannot reasonably be assessed for reliability.” Fed. R. Evid. 702, Advisory Committee Notes, 2000 Amendments. The reliability of an expert’s methodology must be scrutinized at each step of the analysis, and a lack of reliability at any step renders the testimony inadmissible. McClain v. Metabolife Int’l, Inc., 401 F.3d 1233, 1245 (11th Cir. 2005). Under these standards, the expert’s methodology must be sufficiently reliable, the facts on which the expert relies must be sufficiently established, and the expert must reliably apply the methodology to those facts. Fla. Stat. § 90.702(1)–(3); Allison, 184 F.3d at 1309; Kemp v. State, 280 So. 3d 81, 89 (Fla. 4th DCA 2019). 12 135064760.1 Experience alone cannot support extrapolation opinions. As the district court in Open Text S.A. v. Box, Inc., explained, an expert’s self-proclaimed “experience” is not visible to the court or jury or testable by cross examination, but instead amounts to “a black box into which data is fed at one end and from which an answer emerges at the other.” 2015 WL 349197, at *6 (N.D. Cal. Jan. 23, 2015); Lee-Bolton v. Koppers, Inc. 319 F.R.D. 346, 377-78 (N.D. Fla. 2017) (relying on Open Text ruling expert testimony unreliable). Indeed, reliance on subjective, “[t]rust me, I know it when I see it,” opinions is the opposite of a reliable, scientific approach. As the Kemp court noted, “[n]othing in Daubert requires a court to ‘admit opinion evidence that is connected to existing data only by the ipse dixit of the expert,’ and a ‘court may conclude that there is simply too great an analytical gap between the data and the opinion proffered.’” Kemp, 280 So. 3d at 89 (quoting Gen. Elec. Co. v. Joinder, 522 U.S. 136, 146 (1997)). That is exactly the case with respect to Mr. Martin’s extrapolation opinions. Finally, the Daubert reliability standard is consistent with well-established Florida law holding that an expert’s testimony must be based on facts supported by the record. See, e.g., Arkin Constr. v. Simpkins, 99 So. 2d 557, 561 (Fla. 1957) (ruling expert opinions based on facts or inferences not supported by the evidence has “no evidential value”). “An expert’s opinion testimony is [likewise] inadmissible if it is grounded on speculation, conjecture, or incorrect assumptions.” 13 135064760.1 Doctors Co. v. Fla. Dep’t of Ins., 940 So. 2d 466, 470 (Fla. 1st DCA 2006); accord All Am. Pool Surface, Inc. v. Jordan, 870 So. 2d 885, 886 (Fla. 3d DCA 2004); see also Brito v. County of Palm Beach, 753 So. 2d 109, 114 (Fla. 4th DCA 1998) (“An expert cannot simply assume the facts which form the basis of his opinion.”). B. The Principles Applied: Mr. Martin is Not Qualified to Express Opinions Resting on Statistics, and his Extrapolation Opinions Lack a Scientifically Reliable Methodology. (1) Plaintiff’s Extrapolation Opinions Do Not Rest on a Valid Application of Statistical Principles. As Dr. Jamie McClave, Royal Oak’s expert statistician, explains, extrapolation is statistics. Extrapolation opinions are reliable only if based on valid statistical sampling. (Affidavit of Dr. Jamie McClave (“McClave Aff.”), ¶¶ 4-5, Ex. B, pp. 2-3). 6 To be valid, the sample must be randomly selected and large enough to represent other similar conditions. Otherwise, the witness is simply ‘jumping to conclusions’ without a valid scientific basis for admissible expert testimony. As Dr. McClave further explains, random sampling must be extended to each mutually exclusive group in the population to account for variability in the population. (Id., Ex. B, pp. 2-3). And, the inherent uncertainty in making inferences based on samples must be addressed, typically through calculating confidence intervals, sometimes referred to as “margins of error.” (Id., Ex. B, p. 6). 6 The Affidavit of Dr. Jamie McClave in support of this Motion is filed separately with this Court. 14 135064760.1 Thus, the initial sampling must be truly random, without any preconceived bias. As Dr. McClave explains, judgment sampling is a form of biased sampling where a person uses his or her own judgment about what sampling units might be informative. (Id., Ex. B, p. 5). Dr. McClave further explains that judgment sampling is not appropriate to extrapolate, i.e., determine how pervasive defects are across Emerald Lake. (Id.). Only random sampling can lead to reliable extrapolation. These principles are fundamental. They are set forth in basic textbooks on statistics as well as ASTM standards for using statistics in material testing. (Id., ¶¶ 4-8, Exs. B-E). 7 But a scientific application of these principles to particular data requires statistical expertise. Lebron v. Secretary of Fla. Dept. of Children & Families, 772 F.3d 1352, 1369 (11th Cir. 2014) (psychologist with no statistics background not permitted to offer extrapolated opinions); Graves v. Plaza Medical Ctrs., Corp., No. 10-23382-CIV-MORENO/O’SULLIVAN, 2017 WL 3895438, *4 (S.D. Fla. 2017) (expert who was not statistician and had no background in statistics not permitted to opine on statistical significance of his analysis). 8 7 See McClave Aff. (i) Ex. C - ASTM E1402-13, “Standard Guide for Sampling Design;” (ii) Ex. D - ASTM E2586-18, “Standard Practice for Calculating and Using Basic Statistics;” and (iii) Ex. E - ASTM E141-10, “Standard Practice for Acceptance of Evidence Based on the Results of Probability Sampling.” 8 This does not mean Mr. Martin must be a statistician to extrapolate. It simply means he must have the education and/or experiential background to apply these fundamental statistical principles to properly extrapolate. Mr. Newkirk, Royal Oak’s expert, for example, is a licensed, professional engineer in Florida with the educational background and experience to perform statistical analysis for extrapolation, which he has done when performing his own testing. (Newkirk Dep., 13:11-25, 14:1-25, 15:1-5, 17:10-12, 82:22-25, 83-99:1-3, 99:18-25, 100:1, Exs. 130, 131, p. 8). 15 135064760.1 It is undisputed that Mr. Martin’s extrapolation opinions do not rest on a proper application of the scientific principles governing statistical extrapolation. Mr. Martin admits he is extrapolating opinions from areas tested to areas untested. (Martin Dep., 323:25, 324:1-9, 445:20-25, 446:1-4). He also admits he did not perform a statistical random sampling method and that he “would not be able to do that” analysis. (Id., 73:25, 74:1-13, 161:3-10, 324:20-23). Mr. Martin is an engineer, he is not a statistician, and he admits he is not qualified to perform statistical analysis. (Martin Dep., 324:20-23). Mr. Martin flatly admits that “we were just looking for the material code violations themselves.” (Id., 699:19-25, 700:1-5, 803:14-20). He did not undertake to do so by identifying random samples; quite to the contrary, he sought to “investigate to find whether defective conditions exist; that’s my scope of work. I wasn’t retained to find conditions that are Code compliant.” (Id., 55:19-25, 56:1-8). This is a biased methodology, as Mr. Martin clearly concedes. In sum, Mr. Martin did not use statistically valid random selection for testing the construction elements in Emerald Lake. He did not follow the ASTM standards that directly apply to his extrapolation opinions. Nor is Mr. Martin qualified to validate the methodology necessary to draw valid statistical extrapolation conclusions regarding the roof and stucco construction elements at Emerald Lake – certainly not his non-random, destructive testing at a handful of locations selected 16 135064760.1 precisely because he thought they were defective. See, e.g., Lebron, 772 F. 3d at 1369; Graves, 2017 3895438, *4; Impact v. Firestone, 893 F.2d 1189, 1195 (11th Cir. 1990) (holding expert must be qualified on the discrete subject he is asked to opine). Hence, his extrapolation opinions are unreliable and impermissibly misleading. For this reason alone, Royal Oak’s Daubert motion should be granted. (2) Mr. Martin’s “Methodology” for his Extrapolation Opinions is Unscientific, Unverifiable, and Unreliable. Mr. Martin’s extrapolation testimony is premised on an unscientific, unverifiable, and unreliable methodology that he uses to reach litigation opinions. Even a “supremely qualified expert” – which Mr. Martin is not in the field of statistical extrapolation – “cannot waltz into the courtroom and render opinions unless those opinions are…reliable and relevant under the test set forth by the Supreme Court… .” Clark v. Takata Corp., 192 F.3d 750, 759, n.5 (7th Cir. 1999). To determine the reliability of an expert’s testimony under Daubert, courts should consider: 1) testing; 2) peer review; and 3) error rates. Daubert, 509 U.S. at 593-94. Further factors include whether the expert unjustifiably extrapolated from premises to unfounded conclusions, and relied on “experience” with no showing 17 135064760.1 how specific experience allows him or her to reach reliable conclusions. Id. Application of these factors to Mr. Martin’s “method” demonstrates its unreliability. (3) Mr. Martin’s “Method” is Biased Judgment Sampling. Mr. Martin’s “method” is the opposite of random. It consists of picking only known or suspected problem locations for destructive testing. Mr. Martin admits he was looking for locations to test that he believed may contain non-code compliant construction. (Martin Dep., 699:19-25, 700:1-5, 803:14-20). This is biased judgment sampling. As Dr. McClave explains, this “method” cannot answer the question of how pervasive that alleged installation defect is throughout Emerald Lake, even if it actually exists at the test location. (McClave Aff., ¶ 5, Ex. B, p. 5). To answer that question, as Dr. McClave further explains, Mr. Martin must employ random sampling, which he admittedly did not do. (Id., Ex. B, pp. 2-4; Martin Dep., 73:25, 74:1-13, 161:3-10, 324:20-23). See Harbor House Condo. Assoc. v. Mass. Bay Ins. Co., 703 F. Supp. 1313, 1316-18 (N.D. Ill. 1988) (expert testimony that pipes for all 278 units were leaking and thus damaged based on 23 leaking and repaired pipes and non-random testing of pipes in six other units was not competent evidence, was “pure speculation” and insufficient for the jury to find there were similar leaks at 18 135064760.1 units not inspected). Extrapolation from such biased sampling is unscientific and unreliable. Mr. Martin’s extrapolation opinions also are so limited they cannot support inferences beyond their locations. He tested the stucco at only 2.5 percent of the total windows in Emerald Lake and the stucco at only four control joints, two dryer vents, and one pipe penetration, among scores of second floor control joints and at least 76 dryer vents and pipe penetrations for each of the 76 townhomes. (Martin Dep., 81:17-25, 82:1-6, 243:24-25, 244-245:1-6, Ex. 6, p. 7-8, 13; Newkirk Dep., Ex. 131, p. 17; Heaney Dep., Ex. 27). He tested only roof eaves, not the roof fields, and only a single shingle at each of two low and two upper roofs covering all 76 townhomes. (Martin Dep., 169:23-25). The small “sample” sizes of Mr. Martin’s tests compounds the lack of randomness and bias in his “method.” (McClave Aff., ¶ 5, Ex. B, p. 6). Further, he made no attempt to account for uncertainty in his test “method.” There are no confidence interval or margin of error calculations for his “method.” (Id., pp. 7-10). The statistically insignificant sample sizes with no determination of a margin of error for his testing further demonstrates his “method” is unscientific and unreliable. Mr. Martin’s “method” is not a proper basis for extrapolating his opinions from tested locations to all non-tested locations. Mr. Martin points to no published 19 135064760.1 materials suggesting his “method” is a proper statistical extrapolation methodology. (Martin Dep., 18:19-25, 19:1-24, 163:1-17). (4) Failure to Account for Key Variables. Another fundamental flaw in Mr. Martin’s “method” exists because he failed to account for variables in the manner in which the purported defects might arise that necessarily impacts how prevalent the defects may be throughout Emerald Lake. The townhomes were built over a three-year period by different subcontractors using different crews. (Id., 148:11-19, 149:2-11, 150:1-10). The construction elements that comprise the second floor stucco siding, for example, were installed manually by different crews. (Id.). Mr. Martin admits there were “isolated incidents” or “random occurrences” in the installation like the single bend in one fin of one window, which he concedes was not a defect, and the allegedly improper lapping of the stucco lath at one location. (Id., 219:24-25, 220:1-19, 351:19-21, 762:17-25, 763:1). There is always the possibility that construction would be different when done by different crews or different crew members – even Mr. Martin admits there was code-compliant installation work even where he tested looking for non-compliance. (Id., 55:21-25, 56:1-2, 19-25, 57:1). Yet, Mr. Martin did not account for variability inherent in this manual construction installation process in his “method,” even though his own test observations demonstrated it existed. 20 135064760.1 Mr. Martin created a Non-Defect List of correctly installed construction elements. (Id., 437:17-25, 438:1-2, Ex. 37). His Non-Defect List confirms his observations of 12 different roof and 66 stucco installation conditions found to be installed correctly at one or more test locations, including the lack of damage at every lower and upper roof tested and at seven stucco locations tested. (Id., Ex. 37, pp. 1-3, 5-15). The observations of correctly installed construction elements recorded in his Non-Defect List demonstrates Mr. Martin’s ipse dixit opinion that, with this townhome construction, a “consistency in terms” of installation practices exist during construction is simply not true. (Id., 150:11-21, 185:9-24). As Dr. McClave explains, stratified random sampling is the scientific, reliable way to account for such variability in the construction. (McClave Aff., ¶ 5, Ex. B, pp. 3, 7-9). This type of analysis is what Mr. Martin failed to do. His “trust me, I know these things” approach cannot be allowed to pass the expert “gate” erected by Daubert. This is precisely the type of area where a jury may give an expert too much credence based on his credentials and conclude that the expert must be correct even where common sense tells them he is not. (5) Mr. Martin Relied on an Inapplicable ASTM Standard that He Did Not Follow. Mr. Martin claims he followed ASTM E2128, which, he further claims, permits him to extrapolate his opinions from his limited test findings to all 76 Emerald Lake townhomes without using statistical random sampling. (Martin Dep., 21 135064760.1 58:13-25, 59:1-6). ASTM E2128 does not support extrapolation without random sampling, and Mr. Martin did not follow it. ASTM E2128, on its face, is intended for use to determine the cause of known or suspected water leaks. (McClave Aff., ¶ 9, Ex. F – ASTM E2128-17, “Standard Guide for Evaluating Water Leakage of Building Walls”). It necessarily is not a standard for determining whether water intrusion exists elsewhere, whether installation defects exist, or whether they are prevalent throughout the construction of the building or multiple buildings. (Id.). ASTM E2128 repeatedly makes this clear. Section 1.1 states “[t]his guide describes methods for determining and evaluating causes of water leakage of exterior walls.” (Id.). Other sections similarly provide: §4.1 (“It is intended for evaluating buildings that exhibit water leakage”); §5.1 (”The methodology in this guide is a systematic approach to evaluating wall leaks … .”). (Id.). Indeed, Section 10.1.1, “Recreate Leaks,” states the “primary purpose of investigative testing is to recreate leaks that are known to occur.” (emphasis added) (Id.; Martin Dep., 272:13-17, Ex. 16). ASTM E2128 does not allow an expert to extrapolate conclusions about other walls on the same townhome, or on other townhomes, other than the ones he actually inspected and tested, without random sampling. When ASTM E2128 states that its protocol “is not based on conventional hypothesis testing and quantitative random sampling,” it expressly states that this is because the standard’s “starting premise” 22 135064760.1 for its application “is that the building is suspected or known to leak.” (McClave Aff., ¶ 9, Ex. F – ASTM E2128-17, §5.2) (emphasis added). By its own terms, ASTM E2128 applies to inspection and testing to find the cause of a leak or leaks in a particular building, not to extrapolating the existence of leaks to other buildings that have not been tested or examined pursuant to its protocol. The decisions in In re: Pella Corp. Architect and Designer Series Windows Marketing, Sales Practices and Products Liability Litigation, 214 F. Supp. 3d 478 (D.S.C. 2016) and 269 F. Supp. 3d 685 (D.S.C. 2017), respectively, are instructive with respect to the attempted application of ASTM E2128 by Mr. Martin to support his extrapolation opinions. In these decisions, the District Court granted a motion to exclude – and denied a motion to alter/amend that order to exclude – expert extrapolation opinions under Daubert that relied upon ASTM E2128. As the District Court summarized plaintiff’s position, its experts presented testing and observation data for some windows to demonstrate a “product-wide” defect, implicitly asserting their testing and observations were representative of the performance of “the entire population of approximately 7.5 million [w]indows.” Pella, 214 F. Supp. at 491. The court explained the “field of statistics provides the traditional methods for making such an assertion.” Id. Conversely, the District Court ruled ASTM E2128, relied upon by plaintiff’s experts to support their extrapolation opinions, was a standard “used to identify the cause of specific instances of water 23 135064760.1 infiltration[;]…not [to] purport to provide generalizable findings.” Id. at 492. The District Court held “plaintiffs cannot rely on compliance with ASTM E2128 and other, related standards to show that their findings can be reliably applied to all [w]indows.” Id. Mr. Martin, nevertheless, contends that ASTM E2128 “gives the building professional a roadmap that they can follow and choose…sections from the standard to determine which ones may be applicable or not to their particular circumstances,” essentially asserting his “qualitative” judgment is sufficient by itself to support his extrapolation opinions. (Martin Dep., 272:18-25, 273:1-13). This is not supported by ASTM E2128. The District Court rejected the same argument in the Pella window cases. As the District Court explained, any argument that ASTM E2128 “leaves the bulk of testing design to the expert’s discretion” must leave “the court without any means of evaluating the reliability of” plaintiff’s testing. 214 F. Supp. at 488. “The court cannot permit the plaintiffs to invoke ASTM E2128 as both a sword and shield. Doing so would constitute an abdication of the court’s gatekeeping duty under Daubert.” Id. Mr. Martin similarly cannot use ASTM E2128 as “both a sword and shield” here to hide his extrapolation opinions behind his “expertise” and “judgment.” That ipse dixit argument fails to meet the Daubert standard and should be excluded. 24 135064760.1 It remains only to note that D.R. Horton, Inc. – Jacksonville, v. Heron’s Landing Condo. Ass’n of Jacksonville, Inc., 266 So. 3d 1201 (Fla. 1st DCA 2018) in no way supports Mr. Martin’s extrapolation testimony and has no application here. First, D.R. Horton was decided when the Frye standard was in effect. 266 So. 3d at 1207-08. Second, there is no peer review of Mr. Martin’s “method,” which the court found existed in D.R. Horton. Finally, although plaintiff’s expert in D.R. Horton claimed to follow ASTM E2128 like Mr. Martin does here, that ASTM has no application to extrapolation opinions and Mr. Martin failed to follow its directions despite relying on it. Id. at 1204. (6) Lack of a Pre-Determined, Objective Test Method that Cannot Reliably be Replicated. Another fundamental problem with Mr. Martin’s opinions involves his failure to employ any written methodology before or during testing that explained what he was going to do, why, and how he was going to do it. There was no written protocol or method provided to Mr. Martin’s employees on site that explained how to select locations for testing and how to conduct that testing. (Martin Dep., 78:2-24, 86:20- 25, 87:1-18, 159:17-25). Mr. Martin admits selection of the actual locations for testing was left to Mr. Ibarra, one of his employees. (Id., 86:17-25, 87:1-5). We do not know how and why Mr. Ibarra selected the actual locations tested for testing, and thus, the process of 25 135064760.1 selecting test locations cannot be replicated. Replication is a fundamental requirement of a valid scientific process. (McClave Aff., ¶ 5, Ex. B, pp. 6, 10-12). The actual steps of the testing process at each test location also cannot be replicated because there is no written method or protocol explaining them. There is no written method explaining the size of the area tested, the types of pictures to be taken, where, when, and how to take measurements, or how to conduct any water or other tests at these locations. (Martin Dep., 87:19-25, 88:1-3, 15-21, 89:21-24, 92:3- 13, 93:6-12). Mr. Martin failed to document his methodology and preserve a record of what was done such that his methodology could be understood and followed. Absent this documentation, and the preservation of data in accordance with it, the testing underlying Mr. Martin’s opinions cannot be replicated. Because the available data is insufficient to replicate Mr. Martin’s “method,” it is not reliable. (McClave Aff., ¶ 5, Ex. B, pp. 6, 10-12). ASTM E2128, which Mr. Martin claims to follow, likewise has specific protocols for documenting the expert’s test investigation methods and recording the test results when determining the cause of a water leak. Section 9.7, entitled “Documentation,” for example, emphasizes the importance of documenting steps that are taken in the investigation in writing in a way for the evaluation process to be repeated. Yet, Mr. Martin failed to document his test investigation methods. ASTM E2128 also recommends a determination of the service history, which 26 135064760.1 includes interviewing occupants, maintenance personnel, and obtaining and reviewing maintenance and repair records to determine the extent of water leakage. ASTM E2128, §§ 8, 8.1, 8.2, 8.3 and 8.4. Mr. Martin did none of these things. Mr. Martin did not gather information from the homeowners, Plaintiff, or its management company on any service history related to water leakage or moisture intrusion problems. (Martin Dep., 288:11-18). Mr. Martin likewise did not obtain maintenance or repair records. (Id., 72:21-25, 73:1-19, 317:9-17). He admits he had no reports from any homeowner at a location he tested that indicated the owner was experiencing water or moisture intrusion in their home. (Id., 288:11-18). Mr. Martin argues that ASTM E2128 allows him to select which recommended protocols to follow, such that he need not follow any particular one, rather he may simply use his engineering judgment. (Id., 272:18-25, 273:1-13). But Mr. Martin cannot have it both ways, just as the District Court in the Pella window cases ruled. See 214 F. Supp. at 487-88. To the extent he relies on his “judgment” to dispense with steps the ASTM standard he purports to follow provides, it necessarily renders his attempt to borrow reliability and objectivity by relying on the standard totally empty. Id., at 487 (The “court cannot allow plaintiffs to rely on ASTM E2128 to establish the reliability of their methodology while simultaneously allowing every testing decision to escape scrutiny under the cloak of ‘professional judgment.’ If 27 135064760.1 ASTM E2128 were interpreted this way, it would be so vague as to provide no guidance at all.”). We simply have to take Mr. Martin’s word that he had a “method” and that he followed that “method” in arriving at his opinions. This is precisely the opposite of Daubert’s mandate that the Court is not required to admit expert testimony based solely on the expert’s own ipse dixit or “say so.” Kemp, 280 So. 3d at 89; Pella, 214 F. Supp. at 487-88; see also May v. State of Fla., 326 So. 3d 188, 193 (Fla. 1st DCA 2021). Yet, that is about all Mr. Martin has provided Royal Oak and the Court. In all events, the burden is on the proponent of expert testimony – the Plaintiff here – to establish all elements of admissibility, including reliability, by a preponderance of the evidence. The reliability of the expert’s methodology must be tested and pass muster at each step of the expert’s analysis. That is not the case for Mr. Martin’s “method” or implementation of that “method.” WHEREFORE, Defendant, Royal Oak Homes, LLC, respectfully requests this Court enter an order granting its Daubert Motion and excluding the extrapolation opinions of Plaintiff’s experts, and if permitted, the evidence introduced at the evidentiary hearing in support of the Motion, and such further relief as justice requires. 28 135064760.1 Pursuant to Local Rule 5.3, I hereby certify that on February 1, 2024, counsel for Royal Oak Homes, LLC, Fiona E. Foley Esq., conferred with counsel for Plaintiff, Kayce Joyce, Esq., in a good faith effort to resolve the issues raised in this Motion but the parties have been unable to resolve the issues. Dated: February 5, 2024 /s/ J. Michael Walls James Michael Walls Florida Bar No. 706272 Luis Prats Florida Bar No. 329096 Robin H. Leavengood Florida Bar No. 0547751 Fiona E. Foley Florida Bar No. 118668 Alexa M. Nordman Florida Bar No. 1025863 CARLTON FIELDS, P.A. 4221 W. Boy Scout Boulevard Tampa, FL 33607-5780 Telephone: (813) 223-7000 Facsimile: (813) 229-4133 mwalls@carltonfields.com lprats@carltonfields.com rleavengood@carltonfields.com anordman@carltonfields.com slambe@carltonfields.com ffoley@carltonfields.com fgonzalez@carltonfields.com Attorneys for Defendant, Royal Oak Homes, LLC 29 135064760.1 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on February 5, 2024, the foregoing was electronically filed with the Clerk of the Court by using the E-filing Portal, which will electronically serve this document to all registered counsel of record. /s/ J. Michael Walls 30 135064760.1