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Nicola Altieri v. State Farm Fire and Casualty Company

May 16, 2011


The opinion of the court was delivered by: Elizabeth T. Hey United States Magistrate Judge


In this case, Plaintiff, Nicola Altieri, seeks insurance coverage for the collapse of a wall of his commercial garage. At the time of the collapse, the property was insured by Defendant, State Farm. However, Defendant has denied coverage, based on an exclusion in the policy. The question ultimately is the cause of the collapse. Plaintiff's expert has authored a report stating that weight of pooled water on the roof caused the collapse, while the defense expert has determined that the collapse was caused by hydrostatic pressure. The former is a covered cause of loss; the latter is not. Plaintiff has filed a motion to preclude the defense expert's testimony. For the reasons that follow, I will deny the Plaintiff's motion.


On April 16, 2007, the rear wall of the commercial garage at 4278-4282 Penn Street in Philadelphia collapsed. See Doc. 1 Exh. A at ¶ 5. At the time, the garage was owned by Plaintiff and insured by Defendant. Id. Gregory Pagano, a public adjuster hired by Plaintiff, submitted the claim to Defendant on April 24, 2007. See Doc. 12 Exh. D. After representatives from Defendant inspected the property, Defendant hired a structural engineer, Russell E. Daniels, P.E., to inspect the property. See Doc. 13-2 at 1. Mr. Daniels inspected the property on May 14, 2007, and prepared a report concluding that the collapse was caused by soil/hydrostatic pressure. See Doc. 32 Exh. A at 3. Based on Mr. Daniels' report, Defendant denied Plaintiff's claim on May 31, 2007. See Doc. 12 Exh. H. Mr. Daniels supplemented his original report on December 14, 2009, after reviewing Plaintiff's deposition, additional photographs, the Philadelphia Department of Licenses and Inspection's file ("the L&I file"), and Plaintiff's expert report. See Docs. 12 Exh. K; 33 Exh. B. Mr. Daniels concluded that the evidence he reviewed was consistent with his original opinion that the collapse was caused by hydrostatic pressure. Id.

On March 7, 2008, John Hare, P.E., an engineer retained by Plaintiff, authored a report in which he opined that the collapse was caused by the weight of pooled water on the roof. See Doc. 12 Exh. J. Plaintiff brought suit in the Philadelphia Court of Common Pleas on April 13, 2009, alleging breach of contract and bad faith. See Doc. 1 Exh. A. Defendant removed the case to the federal court on May 22, 2009, on the basis of diversity jurisdiction. See Doc. 1. On December 16, 2009, Defendant sought partial summary judgment on the bad faith claim, see Doc. 12, which was granted by the Honorable Mary McLaughlin on February 9, 2010. See Doc. 19. Judge McLaughlin referred the case to the undersigned with the consent of the parties on February 18, 2011. See Doc. 28.

On April 18, 2011, Plaintiff filed this motion, seeking to preclude the report and testimony of Mr. Daniels and evidence that Plaintiff's property was damaged as a result of hydrostatic pressure. See Doc 32. Defendant has filed a response. See Doc. 33. Considering these filings, I do not find it necessary to hold a hearing in order to make a determination. See Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137, 152 (1999) ("The trial court must have . . . latitude in deciding how to test an expert's reliability, and to decide whether special briefing or other proceedings are necessary . . ."); Meeks v. APV Ltd., No. 00-4191, 2002 WL 32348524, at *2 (E.D. Pa. Feb. 5, 2002) (Hart, M.J.) (denying Daubert motion without a hearing). Thus, the issue is now ripe for disposition.


The admissibility of expert testimony is primarily governed by Federal Rule of Evidence 702:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education, may testify thereto in a form of an opinion or otherwise, 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.

Fed. R. Evid. 702. Thus, Rule 702 sets forth three principle requirements -- "(1) the proffered witness must be an expert, i.e., must be qualified; (2) the expert must testify about matters requiring scientific, technical or other specialized knowledge; and (3) the expert testimony must assist the trier of fact." Pineda v. Ford Motor Co., 520 F.3d 237, 244 (3d Cir. 2008) (citing In Re: Paoli R.R. Yard PCB Litig., 35 F.3d 717, 741-42 (3d Cir. 1994)). Rule 702 has "a liberal policy of admissibility." Pineda, 520 F.3d at 243 (quoting Kannankeril v. Terminix Inter., Inc., 128 F.3d 802, 806 (3d Cir. 1997)).

In Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993), the Supreme Court explained that, under the Federal Rules of Evidence, the trial judge acts as a "gatekeeper" to ensure that "any and all expert testimony or evidence is not only relevant, but also reliable." 509 U.S. at 589; Pineda, 520 F.3d at 244. "[An] expert's testimony is admissible so long as the process or technique the expert used in formulating the opinion is reliable." Pineda, 520 F.3d at 244 (quoting Paoli, 35 F.3d at 742). Thus, the focus of the inquiry is on the methodology used by the expert, rather than the conclusions reached. See id.

There is no definitive checklist used in evaluating expert testimony, and the court's inquiry must be tied to the specific facts of a particular case. Kumho Tire, 526 U.S. at 150. The Third Circuit has suggested the following list of factors that the trial judge may consider in determining reliability:

(1) Whether a method consists of a testable hypothesis;

(2) Whether a method has been the subject of ...

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