Expert Witness Blog
Both parties challenged the expert witness testimonies of 100-year floodplain. 2 out of 3 opinions were excluded by the court
Facts: This case (Federal-Mogul Corporation v. Insurance Company of the State of Pennsylvania – United States District Court – Eastern District of Michigan – Southern Division August 26th, 2016) involves a flood that occurred in 2011 at the Rojana Industrial Park in Ayutthaya, Thailand. The facility was owned by Federal-Mogul Corporation (Plaintiff). The plaintiff sued Insurance Company of the State of Pennsylvania (defendant) for losses that are in dispute. The main question is whether the property was located within a 100-year flood plain at the time of the loss. In order to prove their cases, both parties hired expert witnesses: The defendant hired Dr. Pornsak Suppataratarn and Mr. Chawalit Chantararat (Hydrology & Groundwater Expert Witnesses), known as the TEAM Experts and Dr. Lee E. Branscome (Weather & Meteorology Expert Witness). The plaintiffs hired Dr. Gerald Galloway (Civil Engineering Expert Witness). Both parties have moved to exclude the testimony of these experts.
Discussion: The TEAM experts, used their statistical frequency analysis and computer modeling to offer the opinion that Plaintiff’s facility is totally located in a 100-year floodplain and that it was situated there at the time of the 2011 flood and prior to the 2011 flood. The plaintiff argue that this testimony should be excluded because 1) it is not based methodology that is scientifically valid, 2) does not “fit” the specific case at issue, and 3) the opinion is unfairly prejudicial.
The plaintiffs maintain that the TEAM experts’ opinions do not satisfy the “fit” requirement because the used 2011 flood data in forming their opinions. This, they argue, will not help the jury to determine whether the facility was located in a 100-year floodplain at the time of the 2011 flood. The court agreed, stating that because the opinion evidence utilizes data from the flood at issue, it would not assist the jury in determining whether the facility was located in a 100-year floodplain at the time of the flood. Thus, this expert witness testimony should be excluded.
Dr. Branscome’s expert report concluded that the facility is within a 100-year floodplain and that it has at least a 1% chance of flooding. The plaintiff argues that this opinion is based on anecdotal evidence and does not have any methodological basis. The defendant replied that Dr. Branscome used commonly used and accepted methods to come to his conclusions, including reviewing and analyzing public topographical data and looking at peer-reviews studies performed prior to 2011. The court disagreed with the defendant, stating that it is not enough to deem his opinion inadmissible because he relied on data collected from other published resources. In addition, any arguments related to the data can be challenged during cross examination.
Last, the plaintiffs challenge the expert witness testimony of Dr. Gerald Galloway, stating that his testimony does not “fit” and that Dr. Galloway is not qualified to render an opinion on the issue at hand. The court agreed, stating that Dr. Galloway has not prepared an opinion to determine whether the Rojana Facility was in a 100-year floodplain.
Conclusion: The court excluded the expert witness testimony of the TEAM experts and those of Dr. Gerald Galloway. The court allowed the expert witness testimony of Dr. Lee E. Branscome.