Preview
Filing # 127688375 E-Filed 05/27/2021 02:57:00 PM
IN THE CIRCUIT COURT OF THE 14”
JUDICIAL CIRCUIT IN AND FOR BAY
COUNTY, FLORIDA
CASE NO.: 19004412CA
JAMIE AND JENNIFER CARR,
Plaintiffs,
Vs.
GULFSTREAM PROPERTY AND
CASUALTY INSURANCE COMPANY,
Defendant.
eae
PLAINTIFFS’ MOTION TO STRIKE
DEFENDANT’S EXPERT, JOHN NOVAK
Plaintiffs, JAMIE CARR and JENNIFER CARR, by and through undersigned counsel,
hereby moves to Strike Defendant’s Expert, John Novak, report and/or opinion as an expert
witness to be relied upon at Trial and as grounds in support thereof states the following:
1. This matter arises out of a claim for damages caused by Category 5 Hurricane
Michael 1801 New Hampshire Avenue, Lynn Haven, FL 32444 (“insured property”).
2. The deposition of Mr. Novak was taken by Plaintiffs over a two (2) day period
commencing May 4" and being completed on May 13, 2021. More importantly, the deposition
revealed that Mr. Novak’s proposed opinion is not reliable because the data underlying his
conclusion appears to be manufactured in order to support the opinion which he was paid to give—
that the damages to the property were much less than what’s needed to repair it.
3. Mr. Novak offers this opinion despite having never personally inspected or visited
the insured property, taken or verified any measurements therein or even having a basic
conversation with either of the insureds.
4, Rather, his opinion is based solely upon having reviewed estimates prepared by
other individuals and completely devoid of any firsthand knowledge.
5. Recently, the Florida Supreme Court has held that Florida is re-adopting the
Daubert standard for admitting expert testimony.
6. Florida has therefore codified the Daubert standard to determine whether an expert
testimony shall be admitted at Section 90.702, Florida Statutes. This statute allows a qualified
individual based upon his knowledge, experience, training or education, to offer expert testimony
if:
(1) The testimony is based upon sufficient facts or data;
(2) The testimony is the product of reliable principles and methods; and
(3) The witness has applied the principles and methods reliably to the facts of the
case.
7. This evidentiary standard requires this Court to initially determine whether Novak’s
knowledge, experience, training or education qualifies him to serve as an expert.
8. Further, Federal case law under Daubert has established that, in addition to being
qualified, a witness must also testify regarding the subject matter appropriate to his area of
expertise in order to testify as an expert witness. Beech Aircraft Corporation v. U.S., 51 F.3d 834
(9th Cir. Cal. 1995).
9. The proponent of the expert testimony bears the burden of establishing the
admissibility of the proffered expert testimony. Edwards v. Safety-Kleen Corp., 61 F. Supp. 2d
1354, 1357 (S.D. Fla. 1999) (citing Haggerty v. Upjohn Co., 950 F. Supp. 1160, 1162 (S.D. Fla.
1996), aff'd, 158 F. 3d 588 (11th Cir. 1998).
10. | Under Daubert, the judge's role is to keep unreliable and irrelevant information
from the jury because of its inability to assist in factual determinations, itspotential to create
confusion, and its lack of probative value. Allison v. McGhan Med. Corp., 184 F. 3d 1300, 1312
(11th Cir. 1999).
11. | When considering whether the expert testimony shall be admitted a preponderance
of the evidence standard must be applied. Baan v. Columbia Cnty., 180 So. 3d 1127, 1131-32 (Fla.
Ist DCA 2015).
Lack ofFoundation
12. Mr. Novak lacks the foundation to provide expert testimony.
13. The Court must determine whether Novak’s testimony both rests on a reliable
foundation and is relevant to the task at hand." Daubert v. Merrell Dow Pharms., Inc., 509 US.
579, 597 (1993). To do so, this Court must consider "whether the reasoning or methodology
underlying the testimony is scientifically valid and of whether that reasoning or methodology
properly can be applied to the facts in issue." Jd. at 592-93.
14. Florida law is well settled that “[a]n expert opinion is inadmissible where it is
apparent that the opinion is based on insufficient data.” Doctors Co. v. Dep’t ofIns., 940 So, 2d
466 (Fla. 1st DCA 2006); Dempsey v. Shell Oil Co., 589 So, 2d 373 (Fla. 4th DCA 1991) (“This
court has recognized that an expert opinion is inadmissible where it is apparent that the opinion is
based on insufficient data.”). Indeed, courts have explained that “[t]rained experts commonly
extrapolate from existing data. But nothing in either Daubert or the Federal Rules of Evidence
requires a district court to admit opinion evidence that is connected to existing data only by the
ipse dixit of the expert.” Crane Co. v.Delisle, 206 So. 3d 94, 102 (Fla. 4th DCA 2016) (quoting
GE vy. Joiner, 522 U.S. 136 (1997)). When an objection has been made to the admissibility of an
expert’s opinion, it is incumbent upon the trial court to examine the foundation of the opinion and
exclude it if it isnot grounded on appropriate principles and methodology. The judge's role is to
keep unreliable and irrelevant information from the jury because of its inability to assist in factual
determinations, its potential to create confusion, and its lack of probative value. Allison v. McGhan
Med. Corp., 184 F. 3d 1300, 1312 (11th Cir. 1999).
15. | Here, Mr. Novak’s opinion of the damages to the insured property caused by
Hurricane Michael is based on mere speculation of what others have viewed, assessed and/or have
told him.
16. Specifically, Mr. Novak admitted that he’s never personally been to property or
physically viewed the damages first hand. Novak did nothing to investigate the damages at issue
other than having reviewed estimates prepared by completely unrelated individuals nor did he
attempt to verify the information contained therein.
17. Basing an opinion on such a cursory review of information is not a reliable method
for determining damage to property.
18. Therefore, Mr. Novak’s testimony should be deemed inadmissible as his
conclusions are based upon a stacking of assumptions from uncorroborated estimates and the
measurements therein. Such testimony is irrelevant and lacks the probative value to overcome the
potential confusion it would cause the jury.
Lack ofReliability
19. | As mentioned above, Daubert requires that an expert apply their principles reliably
to the facts of the case.
20. During Novak’s deposition, he admitted that he’s never personally inspected or
visited the insured property. Nor did he personally take any measurements or verify the same as
contained within the estimates he reviewed. Therefore, Mr. Novak lacks the requisite personal
knowledge and his opinions are speculative at best.
21. The court’s role is to ensure speculative unreliable expert testimony to not be
admitted. See Rink v. Ceminova, Inc., 400 F.3d 1286, 1291 (11m Cir. 2005).
22. Here, as noted above, the judge's role is to keep unreliable and irrelevant
information from the jury because of its inability to assist in factual determinations, its potential
to create confusion, and its lack of probative value. Allison v. McGhan Med. Corp., 184 F. 3d 1300,
1312 (11th Cir. 1999).
23. Furthermore, under Daubert, when examining the reliability of an expert’s
testimony, Courts have found notable issued where an expert fails to exclude other potential causes
of injury. See Diviero v. Uniroyal Goodrich Tire Co., 919 F. Supp. 1353, 1359-60 (D. Az. 1996),
aff'd 114 F.3d 851 (9th Cir. 1997).
24. In Gonzalez v Citizens, the Court rejected the expert’s opinion, stating that “no
weight may be accorded to an expert opinion which is totally conclusory in nature and is
unsupported by any discernible, factually-based chain of underlying reasoning.” 44 Fla. L. Weekly
D 686 (Fla. 3ra DCA 2019), citing Div. ofAdmin v. Samter, 393 So. 2d 1142, 1145 (Fla. 3d DCA
1981).
25. Therefore, Mr. Novak’s failure to perform a basic investigation into the damages at
issue or take any steps to verify information contained within the estimates which serve as a basis
for his testimony is evidence of its unreliability and should be barred from admission at trial.
Conclusion
26. Inall cases where expert testimony is proffered, the trial judge must determine that
the testimony is properly grounded, well-reasoned, and not speculative before it can be admitted.
Fed. R. Evidence 702 advisory committee’s note (2000 amends.)
27. Here, Mr. Novak’s opinions are entirely speculative, lack a basis in sufficient data,
and are unreliable.
28. Although Mr. Novak may meet the qualifications of an expert in other cases, here,
he isnot offering testimony based upon sufficient facts or data; that is not the product of reliable
principles and that has not been applied reliably to the facts of this case.
29. Therefore, Plaintiffs seek to have Novak stricken as Defendant’s expert and his
testimony precluded from Trial.
WHEREFORE, for the foregoing reasons and based upon the foregoing authorities,
Plaintiffs, JAMIE CARR and JENNIFER CARR, respectfully requests that this Court grant this
Motion and strike John Novak as Defendant’s expert and report in this matter; and grant any and
all further relief as is just and proper.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been served on
this 27" day of May, 2021, via the Florida E-Filing Portal to: Kathy J. Maus, Esq., Butler
Weihmuller Katz Craig LLP, 400 North Ashley Drive, Suite 2300, Tampa, FL 33602,
kmaus@butler.legal.
GED LAWYERS, LLP
Attorneys for the Plaintiffs
7171 North Federal Highway
Boca Raton, FL 33487
Telephone: (561) 995-1966
Facsimile: (561) 241-0812
Primary Email: pdlitlaw@gedlawyers.com
Secondary Email:bgoetsch@gedlawyers.com
BY: /s/Scott M. Rosso
SCOTT M. ROSSO, ESQ.
Florida Bar No.: 505757
DAVID R. SHAHEEN, ESQ.
Florida Bar No.: 0117947
Preview
Filing # 127688375 E-Filed 05/27/2021 02:57:00 PM IN THE CIRCUIT COURT OF THE 14” JUDICIAL CIRCUIT IN AND FOR BAY COUNTY, FLORIDA CASE NO.: 19004412CA JAMIE AND JENNIFER CARR, Plaintiffs, Vs. GULFSTREAM PROPERTY AND CASUALTY INSURANCE COMPANY, Defendant. eae PLAINTIFFS’ MOTION TO STRIKE DEFENDANT’S EXPERT, JOHN NOVAK Plaintiffs, JAMIE CARR and JENNIFER CARR, by and through undersigned counsel, hereby moves to Strike Defendant’s Expert, John Novak, report and/or opinion as an expert witness to be relied upon at Trial and as grounds in support thereof states the following: 1. This matter arises out of a claim for damages caused by Category 5 Hurricane Michael 1801 New Hampshire Avenue, Lynn Haven, FL 32444 (“insured property”). 2. The deposition of Mr. Novak was taken by Plaintiffs over a two (2) day period commencing May 4" and being completed on May 13, 2021. More importantly, the deposition revealed that Mr. Novak’s proposed opinion is not reliable because the data underlying his conclusion appears to be manufactured in order to support the opinion which he was paid to give— that the damages to the property were much less than what’s needed to repair it. 3. Mr. Novak offers this opinion despite having never personally inspected or visited the insured property, taken or verified any measurements therein or even having a basic conversation with either of the insureds. 4, Rather, his opinion is based solely upon having reviewed estimates prepared by other individuals and completely devoid of any firsthand knowledge. 5. Recently, the Florida Supreme Court has held that Florida is re-adopting the Daubert standard for admitting expert testimony. 6. Florida has therefore codified the Daubert standard to determine whether an expert testimony shall be admitted at Section 90.702, Florida Statutes. This statute allows a qualified individual based upon his knowledge, experience, training or education, to offer expert testimony if: (1) The testimony is based upon sufficient facts or data; (2) The testimony is the product of reliable principles and methods; and (3) The witness has applied the principles and methods reliably to the facts of the case. 7. This evidentiary standard requires this Court to initially determine whether Novak’s knowledge, experience, training or education qualifies him to serve as an expert. 8. Further, Federal case law under Daubert has established that, in addition to being qualified, a witness must also testify regarding the subject matter appropriate to his area of expertise in order to testify as an expert witness. Beech Aircraft Corporation v. U.S., 51 F.3d 834 (9th Cir. Cal. 1995). 9. The proponent of the expert testimony bears the burden of establishing the admissibility of the proffered expert testimony. Edwards v. Safety-Kleen Corp., 61 F. Supp. 2d 1354, 1357 (S.D. Fla. 1999) (citing Haggerty v. Upjohn Co., 950 F. Supp. 1160, 1162 (S.D. Fla. 1996), aff'd, 158 F. 3d 588 (11th Cir. 1998). 10. | Under Daubert, the judge's role is to keep unreliable and irrelevant information from the jury because of its inability to assist in factual determinations, itspotential to create confusion, and its lack of probative value. Allison v. McGhan Med. Corp., 184 F. 3d 1300, 1312 (11th Cir. 1999). 11. | When considering whether the expert testimony shall be admitted a preponderance of the evidence standard must be applied. Baan v. Columbia Cnty., 180 So. 3d 1127, 1131-32 (Fla. Ist DCA 2015). Lack ofFoundation 12. Mr. Novak lacks the foundation to provide expert testimony. 13. The Court must determine whether Novak’s testimony both rests on a reliable foundation and is relevant to the task at hand." Daubert v. Merrell Dow Pharms., Inc., 509 US. 579, 597 (1993). To do so, this Court must consider "whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue." Jd. at 592-93. 14. Florida law is well settled that “[a]n expert opinion is inadmissible where it is apparent that the opinion is based on insufficient data.” Doctors Co. v. Dep’t ofIns., 940 So, 2d 466 (Fla. 1st DCA 2006); Dempsey v. Shell Oil Co., 589 So, 2d 373 (Fla. 4th DCA 1991) (“This court has recognized that an expert opinion is inadmissible where it is apparent that the opinion is based on insufficient data.”). Indeed, courts have explained that “[t]rained experts commonly extrapolate from existing data. But nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert.” Crane Co. v.Delisle, 206 So. 3d 94, 102 (Fla. 4th DCA 2016) (quoting GE vy. Joiner, 522 U.S. 136 (1997)). When an objection has been made to the admissibility of an expert’s opinion, it is incumbent upon the trial court to examine the foundation of the opinion and exclude it if it isnot grounded on appropriate principles and methodology. The judge's role is to keep unreliable and irrelevant information from the jury because of its inability to assist in factual determinations, its potential to create confusion, and its lack of probative value. Allison v. McGhan Med. Corp., 184 F. 3d 1300, 1312 (11th Cir. 1999). 15. | Here, Mr. Novak’s opinion of the damages to the insured property caused by Hurricane Michael is based on mere speculation of what others have viewed, assessed and/or have told him. 16. Specifically, Mr. Novak admitted that he’s never personally been to property or physically viewed the damages first hand. Novak did nothing to investigate the damages at issue other than having reviewed estimates prepared by completely unrelated individuals nor did he attempt to verify the information contained therein. 17. Basing an opinion on such a cursory review of information is not a reliable method for determining damage to property. 18. Therefore, Mr. Novak’s testimony should be deemed inadmissible as his conclusions are based upon a stacking of assumptions from uncorroborated estimates and the measurements therein. Such testimony is irrelevant and lacks the probative value to overcome the potential confusion it would cause the jury. Lack ofReliability 19. | As mentioned above, Daubert requires that an expert apply their principles reliably to the facts of the case. 20. During Novak’s deposition, he admitted that he’s never personally inspected or visited the insured property. Nor did he personally take any measurements or verify the same as contained within the estimates he reviewed. Therefore, Mr. Novak lacks the requisite personal knowledge and his opinions are speculative at best. 21. The court’s role is to ensure speculative unreliable expert testimony to not be admitted. See Rink v. Ceminova, Inc., 400 F.3d 1286, 1291 (11m Cir. 2005). 22. Here, as noted above, the judge's role is to keep unreliable and irrelevant information from the jury because of its inability to assist in factual determinations, its potential to create confusion, and its lack of probative value. Allison v. McGhan Med. Corp., 184 F. 3d 1300, 1312 (11th Cir. 1999). 23. Furthermore, under Daubert, when examining the reliability of an expert’s testimony, Courts have found notable issued where an expert fails to exclude other potential causes of injury. See Diviero v. Uniroyal Goodrich Tire Co., 919 F. Supp. 1353, 1359-60 (D. Az. 1996), aff'd 114 F.3d 851 (9th Cir. 1997). 24. In Gonzalez v Citizens, the Court rejected the expert’s opinion, stating that “no weight may be accorded to an expert opinion which is totally conclusory in nature and is unsupported by any discernible, factually-based chain of underlying reasoning.” 44 Fla. L. Weekly D 686 (Fla. 3ra DCA 2019), citing Div. ofAdmin v. Samter, 393 So. 2d 1142, 1145 (Fla. 3d DCA 1981). 25. Therefore, Mr. Novak’s failure to perform a basic investigation into the damages at issue or take any steps to verify information contained within the estimates which serve as a basis for his testimony is evidence of its unreliability and should be barred from admission at trial. Conclusion 26. Inall cases where expert testimony is proffered, the trial judge must determine that the testimony is properly grounded, well-reasoned, and not speculative before it can be admitted. Fed. R. Evidence 702 advisory committee’s note (2000 amends.) 27. Here, Mr. Novak’s opinions are entirely speculative, lack a basis in sufficient data, and are unreliable. 28. Although Mr. Novak may meet the qualifications of an expert in other cases, here, he isnot offering testimony based upon sufficient facts or data; that is not the product of reliable principles and that has not been applied reliably to the facts of this case. 29. Therefore, Plaintiffs seek to have Novak stricken as Defendant’s expert and his testimony precluded from Trial. WHEREFORE, for the foregoing reasons and based upon the foregoing authorities, Plaintiffs, JAMIE CARR and JENNIFER CARR, respectfully requests that this Court grant this Motion and strike John Novak as Defendant’s expert and report in this matter; and grant any and all further relief as is just and proper. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been served on this 27" day of May, 2021, via the Florida E-Filing Portal to: Kathy J. Maus, Esq., Butler Weihmuller Katz Craig LLP, 400 North Ashley Drive, Suite 2300, Tampa, FL 33602, kmaus@butler.legal. GED LAWYERS, LLP Attorneys for the Plaintiffs 7171 North Federal Highway Boca Raton, FL 33487 Telephone: (561) 995-1966 Facsimile: (561) 241-0812 Primary Email: pdlitlaw@gedlawyers.com Secondary Email:bgoetsch@gedlawyers.com BY: /s/Scott M. Rosso SCOTT M. ROSSO, ESQ. Florida Bar No.: 505757 DAVID R. SHAHEEN, ESQ. Florida Bar No.: 0117947