United States District Court, N.D. Indiana, Fort Wayne Division
OPINION AND ORDER
WILLIAM C. LEE WILLIAM C. LEE, JUDGE U.S. DISTRICT COURT
matter is before the Court for ruling on three pending
motions. Plaintiff Valley Forge filed a Motion to Exclude
Certain Testimony of Paul F. Amoruso (ECF 778), to which
Defendants Hartford Iron and Alan B. Goldberg filed a brief
in opposition (ECF 783) and Valley Forge filed a reply (ECF
786). Hartford Iron and Goldberg each filed a Motion to
Exclude Experts under Daubert (ECF 780 and 781,
respectively), to which Valley Forge filed briefs in
opposition (ECF 784 and 785) and Hartford Iron filed a reply
(ECF 787). For the reasons explained below, Valley
Forge's motion (ECF 778) is GRANTED in part and
DENIED in part; Hartford Iron's motion (ECF 780)
is GRANTED in part and DENIED in part; and
Goldberg's motion (ECF 781) is DENIED.
Specific testimony and opinions by Paul Amoruso and Bernd
Heinze are precluded as set forth below. The motions are in
all other respects denied.
admissibility of expert testimony is governed by Federal Rule
of Evidence 702 and the Supreme Court's opinion in
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579 (1993). See Lees v. Carthage, 714 F.3d 516,
521 (7th Cir. 2013) (explaining that Rule 702 has superseded
Daubert, but that its standard of review is still
applicable). In analyzing the reliability of proposed expert
testimony, the role of the court is to determine whether the
expert is qualified in the relevant field and to examine the
methodology the expert has used in reaching his conclusions.
See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 153
(1999). An expert may be qualified by “knowledge,
skill, experience, training, or education.” Fed.R.Evid.
702. “The purpose of [the Daubert] inquiry is
to vet the proposed testimony under Rule 702's
requirements that it be ‘based on sufficient facts or
data,' use ‘reliable principles and methods,'
and ‘reliably appl[y] the principles and methods to the
facts of the case.'” Lapsley v. Xtek,
Inc., 689 F.3d 802, 804 (7th Cir. 2012) (quoting
Fed.R.Evid. 702). Whether to admit expert testimony rests
within the discretion of the district court. See Gen.
Elec. v. Joiner, 522 U.S. 136, 142 (1997);
Lapsley, 689 F.3d at 810 (“[W]e ‘give
the district court wide latitude in performing its
gate-keeping function and determining both how to measure the
reliability of expert testimony and whether the testimony
itself is reliable.'”) (quoting Bielskis v.
Louisville Ladder, Inc., 663 F.3d 887, 894 (7th Cir.
2011)). “The proponent of the expert bears the burden
of demonstrating that the expert's testimony would
satisfy the Daubert standard” by a
preponderance of the evidence. Lewis v. CITGO Petroleum
Corp., 561 F.3d 698, 705 (7th Cir. 2009).
the judge is the trier of fact “the usual concerns of
[Rule 702]-keeping unreliable expert testimony from the
jury-are not present.'” Equal Employment
Opportunity Comm'n v. Amsted Rail Co., 2018 WL
587345, at *3 (S.D. Ill. Jan. 29, 2018) (quoting
Metavante Corp. v. Emigrant Sav. Bank, 619 F.3d 748,
760 (7th Cir. 2010)). “[W]here the factfinder and the
gatekeeper are the same, the court does not err in admitting
the evidence subject to the ability later to exclude it or
disregard it if it turns out not to meet the standard of
reliability established by Rule 702.” Id.
(quoting In re Salem, 465 F.3d 767, 777 (7th Cir.
2006)). As this Court explained in BASF Corp. v. Aristo,
It is for the [trier of fact] to decide the correctness of
the facts that underlie each of these experts' opinions.
i4i Ltd. Partnership v. Microsoft Corp., 598 F.3d
831, 856 (Fed.Cir. 2010). These experts are ready to be
examined and cross-examined in [court], which will determine
who provides the more credible way of accounting for damages
in this case. The law of both the Seventh Circuit and the
Federal Circuit supports this conclusion. As the Seventh
Circuit has stated: “The question of whether the expert
is credible or whether his or her theories are correct given
the circumstances of a particular case is a factual one that
is left for the [trier of fact] to determine after opposing
counsel has been provided the opportunity to cross-examine
the expert regarding his conclusions and the facts on which
they are based.” Smith v. Ford Motor Co., 215
F.3d 713, 719 (7th Cir. 2000).
BASF Corp. v. Aristo, Inc., 2012 WL 2529213, at *4-5
(N.D. Ind. June 29, 2012). Another district court explained
this flexible standard as follows:
[T]o the extent that Daubert issues relate to
matters that will be tried to the Court, rather than a jury,
the Court possesses greater latitude in exercising its
gatekeeping function. See Metavante Corp. v. Emigrant
Sav. Bank, 619 F.3d 748, 760 (7th Cir. 2010); In re
Salem, 465 F.3d 767, 777 (7th Cir. 2006) (“Where
the gatekeeper and the factfinder are one and the same-that
is, the judge-the need to make such decisions prior to
hearing the testimony is lessened. That is not to say that
the scientific reliability requirement is lessened in such
situations; the point is only that the court can hear the
evidence and make its reliability determination during,
rather than in advance of, trial. Thus, where the factfinder
and the gatekeeper are the same, the court does not err in
admitting the evidence subject to the ability later to
exclude it or disregard it if it turns out not to meet the
standard of reliability established by Rule 702.”).
Client Funding Solutions Corp. v. Crim, 943
F.Supp.2d 849, 860-61 (N.D. Ill. 2013).
and perhaps most importantly in this case, when a party's
challenges to proposed expert testimony “do not go to
admissibility but to the appropriate weight that should be
accorded to the evidence[, ] ‘[d]etermination on
admissibility should not supplant the adversarial process;
shaky expert testimony may be admissible, assailable by its
opponents through cross-examination.'”
Metavante, 619 F.3d at 760 (quoting Gayton v.
McCoy, 593 F.3d 610, 616 (7th Cir.2010)).
Court, having reviewed the parties' briefs and exhibits
and considered the arguments presented, concludes that the
parties' motions to exclude expert testimony will be
denied, with the exception of specific opinions or testimony
from Hartford Iron expert Paul Amoruso and Valley Forge
expert Bernd Heinze as set forth below. In overwhelming part,
the parties' arguments are actually criticisms that go to
weight (and even credibility, in some instances) rather than
admissibility. This is especially true given that this case
is scheduled for a bench trial, which affords the Court much
more flexibility regarding the admission of expert testimony
(all testimony, for that matter). The Court's rulings are
intended to ensure that both sides have a fair opportunity to
present their expert evidence and challenge opposing experts
through cross-examination and contrary evidence. The parties
really pick apart the opposing side's experts, and both
have some legitimate complaints about certain statements,
references, conclusions or opinions included in the expert
reports. At the same time, the Court's review of those
reports reveals that all of them contain relevant information
that would assist the Court in understanding and ruling on
the substantive issues to be tried.
present motions are easily resolved without the need for the
Court to parse through each of the expert reports in an
effort to sanitize them of their many alleged defects. Valley
Forge and Hartford Iron want the Court to throw the baby out
with the bath water. Amoruso's opinions about
environmental matters are on their face outside his area of
expertise and much of Heinze's proposed testimony is
inadmissible for other reasons. All of the parties' other
challenges and objections to proposed expert evidence boil
down to this: the other side's experts' opinions on
almost every issue are inadmissible because they are wrong.
The parties go to great lengths to explain why the
conclusions and opinions of a particular expert are so bogus
that the Court should not waste time considering them. The
parties' challenges don't warrant excluding expert
evidence; rather, they reveal the need to subject all of the
experts to cross-examination at trial.
Valley Forge's motion to exclude certain testimony of
Paul F. Amoruso.
Forge “moves to exclude the testimony of former
insurance claims handler Paul F. Amoruso regarding certain
opinions disclosed in his written reports dated October 2,
2017 and November 6, 2017, respectively, that concern topics
well beyond his knowledge, skill, experience, training, and
education.” Motion to Exclude Testimony of Amoruso (ECF
778), p. 1. More specifically, Valley Forge argues as
motion is brought on the basis that certain of Amoruso's
opinions fail to meet the Rule 702 standard for admissibility
of expert testimony because: (1) Amoruso, a former claims
handler, is not qualified to opine on matters such as
environmental engineering, contract interpretation, and
underwriting practices; (2) Amoruso used unreliable
methodologies in reaching his conclusions, such as relying on
conjecture and baseless supposition concerning a
third-party's mindset; and (3) Amoruso's opinions do
nothing to assist the trier of fact to understand the
evidence or to determine a fact in issue.
Id. Valley Forge takes no issue with Amoruso's
proposed testimony “related to claims practices and
procedures in this case[, ]” and concedes that
“[i]f that were the extent of Amoruso's opinions,
then Valley Forge would not question his qualifications under
Rule 702[.]” Brief in Support of Motion to Exclude (ECF
779), p. 1. The portions of Amoruso's proposed testimony
that Valley Forge challenges involve what it designates as
his “environmental opinions” and
“contract-interpretation opinions, ” which Valley
Forge insists “stray far beyond his area of experience
and knowledge[.]” Id., p. 2.
reports, Amoruso includes several statements that Valley
Forge contends involve environmental or engineering matters
outside his field of expertise. There are nine such
statements or opinions, according to Valley Forge, that
Amoruso is unqualified to make, which are:
On February 26, 2014, IDEM changed its April 17, 2012
instruction that remediation of PCBs should be carried out to
the agency's industrial screening level of 7.4 ppm.
Instead, the agency set a cleanup level of 1 ppm PCBs
‘due to the recent PCB impacted storm water
[Valley Forge hydrogeology expert Robert] Karls makes a
single argument about delay of effective stormwater work. The
argument provides no valid basis to attribute this delay to
Hartford Iron. This issue illustrates broader failures of
methodology in the Karls and [Bernd] Heinze reports.
o Karls says nothing about the supposed fault of Hartford
Iron regarding this task, including the failure of
Insurer's coverage counsel to negotiate terms with
Keramida in 2015.
o Effectively and completely capturing stormwater migrating
from the Hartford Iron site is ...