Hettick Contractors LLC v. AMCO Insurance Company

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Regina M. Rodriguez
Civil Action No. 1:20-cv-00412-RMR-TPO
HETTICK CONTRACTORS, LLC,
Plaintiff/Counterclaim Plaintiff,
v.
AMCO INSURANCE COMPANY,
Defendant/Counterclaim Plaintiff.
ORDER
This matter is before the Court on Defendant’s Motion to Exclude Testimony of
Plaintiff Retained Expert, David Herring (the “Motion”). ECF No. 126. Plaintiff filed a
response, ECF No.173, and the Defendant filed a reply, ECF No. 174. The Motion is fully
briefed and ripe for review. For the reasons outlined in this Order, the Motion to exclude
is GRANTED in PART and DENIED in PART.
I. 	BACKGROUND
Non-party 	PTT 	Properties 	I, 	LLC 	(“PTT 	Properties”) 	owns 	four 	commercial
properties in Aurora, CO (the “Properties”). ECF No. 71 ¶ 11. PTT Properties is and was
the beneficiary of a property insurance policy (the “Policy”) covering the PTT Properties
issued by Defendant, AMCO Insurance Company (“AMCO”). Id. ¶ 12. Plaintiff Hettick
Contractors LLC (Hettick) is PTT Properties’ contractor. Id. ¶ 20. Plaintiff received an
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assignment of benefits from PTT Properties of the proceeds due under the Policy, plus
any associated causes of action, including this lawsuit. Id. ¶ 60.
On or about July 5, 2019, a large hailstorm struck and damaged the Properties.1
Id. ¶ 18. PTT Properties filed a claim with AMCO. Id. ¶ 20. AMCO hired an engineer to
determine whether the TPO and EPDM roofing members were water-soaked and
damaged by the recent hail. Id. ¶ 23. Using the engineer’s findings, the adjuster sent PTT
Properties a denial letter. Id. ¶ 24. In dispute in the case are the scope of hail damage
and the cost of repair, as well as AMCO’s handling of the Claim.
Plaintiff initiated this action on February 18, 2020. Plaintiff’s complaint asserts
claims for breach of contract and unreasonable delay and denial pursuant to Colo. Rev.
Stat. §§ 10-3-1115 and -1116. Id. ¶ 43. Plaintiff claims that the hailstorm severely
damaged the Property, and that AMCO has denied payment of benefits needed to cover
the total cost of repair to the Property without a reasonable basis. Id. ¶ 39.
II. 	LEGAL STANDARD
Rule 702 of the Federal Rules of Evidence governs the admissibility of expert
witness testimony. Rule 702 imposes on the district court a “gatekeeper function to
‘ensure that any and all scientific testimony or evidence admitted is not only relevant, but
reliable.’” United States v. Gabaldon, 389 F.3d 1090, 1098 (10th Cir. 2004) (quoting
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993)).
1 The Motion, ECF No. 126, and other paragraphs of the Amended Complaint, ECF No. 71 ¶¶ 24, 53,
indicate the hailstorm occurred on July 15, 2019 rather than July 5, 2019.
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To perform that function, the court must perform “a two-step analysis.” Roe v. FCA
US LLC, 42 F.4th 1175, 1180 (10th Cir. 2022); see also 103 Investors I, L.P. v. Square D
Co., 470 F.3d 985, 990 (10th Cir. 2006). First, the court must determine whether the
expert is qualified by “knowledge, skill, experience, training, or education” to render an
opinion. Roe, 42 F.4th at 1180 (quoting Fed. R. Evid. 702). Second, if the expert is
sufficiently qualified, the proffered opinions must be assessed for reliability. Id. at 1180–
81; Fed. R. Evid. 702(b)–(d). The opinions are reliable if the proponent of a qualified
expert witness demonstrates to the Court that it is “more likely than not” that (a) “the
expert’s scientific, technical, or other specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact or issue;” (b) the expert testimony is
“based on sufficient facts or data;” (c) the expert testimony “is the product of reliable
principles and methods;” and (d) “the expert’s opinion reflects a reliable application of the
principles and methods to the facts of the case.” Fed. R. Evid. 702.
To demonstrate the reliability of an opinion that is based solely on an expert’s
experience, the expert “must explain how that experience leads to the conclusion
reached, why that experience is a sufficient basis for the opinion, and how that experience
is reliably applied to the facts.” United States v. Medina-Copete, 757 F.3d 1092, 1104
(10th Cir. 2014) (quoting Fed. R. Evid. 702, advisory committee notes). Establishing
reliability does not require showing that the expert’s testimony is indisputably correct.
United States v. Pehrson, 65 F.4th 526, 540 (10th Cir. 2023); see also Goebel v. Denver
& Rio Grande W. R.R. Co., 346 F.3d 987, 991 (10th Cir. 2003) (discussing how the
opinion is tested against the standard of reliability, not correctness). However, expert
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testimony “may not be admitted unless the proponent demonstrates that it is more likely
than not that the proffered testimony meets . . . the preponderance of the evidence
standard that applies to most of the admissibility requirements set forth in the evidence
rules.” Fed. R. Evid. 702, advisory committee’s note to 2023 amendments. If the court
finds it more likely than not that the proponent demonstrates an expert has a sufficient
basis to support an opinion and “that the admissibility requirement has been met, any
attack by the opponent will go only to the weight of the evidence.” Id.
Under Rule 702, a court must also ensure that the proffered testimony is relevant
and will assist the trier of fact. See id. at 156; United States v. Rodriguez-Felix, 450 F.3d
1117, 1122–23 (10th Cir. 2006). “Relevant expert testimony must logically advance[ ] a
material aspect of the case and be sufficiently tied to the facts of the case that it will aid
the jury in resolving a factual dispute.” United States v. Garcia, 635 F.3d 472, 476 (10th
Cir. 2011) (quotations and citations omitted). In assessing whether expert testimony will
assist the trier of fact, a court should also consider “whether the testimony ‘is within the
juror’s common knowledge and experience,’ and ‘whether it will usurp the juror’s role of
evaluating a witness's credibility.’” Id. at 476–77 (quoting Rodriguez-Felix, 450 F.3d at
1123).
III. 	ANALYSIS
Plaintiff has designated David Herring, a building consultant, estimator, umpire,
and appraiser, as an expert to testify in the field of insurance industry standards.
Defendant moves to strike Mr. Herring as an expert because he is generally unqualified
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to opine on the matters addressed in his report, because he is “not a lawyer and has
never adjusted insurance claims before.” ECF No. at 126 at 2.
A. 	Legal Conclusions
AMCO argues that several of the opinions expressed in Mr. Herring’s report involve
improper legal conclusions as well as opinions that improperly invade the province of the
jury. ECF No. 126 at 10. Mr. Herring’s affirmative expert report is six pages long, ECF No.
126-2, and his rebuttal report is three pages long, ECF No. 3. Defendant provides 27
opinions of Mr. Herring, nearly as long as the report itself, which it argues crosses the line
into a legal conclusion. Plaintiff agrees that “Mr. Herring cannot offer opinions as to what
the law is [and] [a]s such, Plaintiff’s counsel will limit Mr. Herring’s testimony to whether
AMCO violated insurance industry standards.” ECF No. 173 at 2. Rather than parse Mr.
Herring’s expert report line-by-line, the Court will set forth broad guidelines that will govern
Mr. Herring’s testimony at trial.
“[A]n expert's testimony is not per se inadmissible simply because it requires
discussion of the law.” Amica Life Ins. Co. v. Wetz, No. 15-cv-1161-WJM-CBS, 2017 WL
897839, at *3 (D. Colo. Mar. 7, 2017). The Tenth Circuit has recognized that “a witness
may properly be called upon to aid the jury in understanding the facts in evidence even
though reference to those facts is couched in legal terms.” Specht v. Jensen, 853 F.2d
805, 809 (10th Cir. 1988). However, witness testimony that aims to “direct the jury's
understanding of the legal standards upon which [its] verdict must be based” improperly
usurps the role of the trial judge and is therefore inadmissible. Id. Thus, opinions that
merely rephrase the pertinent legal standards and express the expert's beliefs regarding
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the legal rights and obligations of the parties are not admissible because they usurp the
role of the judge and are not helpful to the jury. Pacheco v. State Farm Mut. Auto. Ins.
Co., No. 23-CV-00305-NYW-SBP, 2024 WL 3834166, at *10 (D. Colo. Aug. 15, 2024)
(“While Mr. Seigal will be permitted to testify about insurance industry standards and
explain why he believes State Farm departed from those standards, he is not permitted
to opine about whether State Farm acted reasonably, whether State Farm acted in bad
faith, what State Farm was or was not legally obligated to do, or whether State Farm
complied with its legal obligations.”) (citation omitted); Wise v. USAA Cas. Ins. Co., No.
22-CV-01694-REB-STV, 2024 WL 6100421, at *4 (D. Colo. June 27, 2024) (“Mr. Seigal
may not testify as to whether, in his opinion, the conduct of USAA was unreasonable as
a matter of law or was in violation of any statute. [] Mr. Seigal may explain how claims are
generally handled in the insurance industry, including by discussing the standards for
timely investigations, reservations of rights, and coverage decisions, and can explain the
facts that he believes demonstrate that USAA departed from those standards or fell short
of them.”). Accordingly, for the same reasons articulated in Pacheco and Wise, the Court
will exclude Mr. Herring’s “opinions that Defendant's conduct was unreasonable or
insufficient as a matter of law, or was in violation of any statute. [H]e is unqualified to offer
such opinions as a matter of legal expertise and such ultimate conclusions would not be
helpful to the jury and would improperly intrude on its fact-finding function.” Marion v. Am.
Fam. Mut. Ins. Co., S.I., No. 22-CV-1330-WJM-JPO, 2024 WL 3400486, at *2 (D. Colo.
July 12, 2024) (citations omitted). “[Mr. Herring] may offer testimony articulating what []he
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believes 	to 	be 	the 	relevant 	industry 	standards, 	and 	explaining—factually—how
Defendant's conduct did or did not comport with those standards.” Id.
The Court directs Plaintiff to ensure that Mr. Herring’s testimony conforms to the
guidelines outlined above. Accordingly, this portion of the Motion is granted to the extent
explained above.
B. 	Reliability
Next, Defendant seeks to exclude the “entirety of Mr. Herrings opinions” “because
they are not based on sufficient facts and are not the product of reliable principles and
methods” and are “the type of ipse dixit that courts refuse to accept.” ECF No. 126 at 14-
15. Plaintiff counters that Mr. Herring “provides detailed reasons for his opinions,” which
include “the importance of advanced diagnostic methods that AMCO failed to utilize, as
well as AMCO’s dismissal of documented water intrusion and hail impacts.” ECF No. 173
at 7.
An insurance industry expert's methodology has been deemed reliable when the
expert “explains what he knew of insurance industry standards and practices based on
his experience, explains the facts and evidence he reviewed in the case,” and opines on
how the insurer's handling of the plaintiff's claim “fell short of the relevant industry
standards or differed from handling of similar claims in his experience.” George v. Metro.
Prop. & Cas. Ins. Co., No. 18-cv-01663-PAB-SKC, 2020 WL 70424, at *13 (D. Colo. Jan.
2, 2020) (quoting O'Sullivan v. Geico Cas. Co., 233 F. Supp. 3d 917, 925 (D. Colo. 2017))
(cleaned up). Expert testimony “must be supported by appropriate validation—i.e., ‘good
grounds,’ based on what is known.” Daubert, 509 U.S. at 590. “Nothing in either Daubert
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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.” Gen. Elec. Co. v. Joiner,
522 U.S. 136, 146 (1997); see also Mooring Cap. Fund, LLC v. Phoenix Cent., Inc., No.
5:06-cv-00006-HE, 2009 WL 4263359, at *5 (W.D. Okla. Feb. 12, 2009) (“[A]n expert's
opinions are not admissible merely because the expert says, in effect, ‘trust me, I know.’”).
“[C]onclusory opinions, which require blind acceptance of the expert's ipse dixit, are never
helpful.” Huang v. Marklyn Grp. Inc., No. 11-cv-01765-REB-BNB, 2014 WL 3559367, at
*5 (D. Colo. July 18, 2014).
The record reflects Mr. Herring has experience as a claims adjuster, providing
estimating services for property damage, and investigating insurance claims. Mr. Herring
is qualified to opine on hail damage to roof systems and the cost to repair such damage.
He appears qualified to provide opinions regarding the cause of damage and the
diagnostic methods used in the industry to detect water damage. Defendant also argues
that Mr. Herring’s report is not reliable because he opines that the engineering report from
January 20, 2020, did not address the ongoing leaks and water intrusion issues when the
Defendant argues it did. ECF No. 174 at 4. The Defendant is free to point out
inconsistencies in Mr. Herring’s report or that his opinions should be afforded less weight
than the expert opinions proffered by its expert. It will be up to the jury to determine which
expert to believe. Defendant has not given the Court any reason to wholesale exclude
Mr. Herring’s non-legal opinions at this stage. Therefore, Defendant’s Motion is denied to
the extent it seeks to preclude Mr. Herring from testifying.
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IV. 	CONCLUSION
For the reasons set forth herein, it is ORDERED as follows:
1) Defendant’s Motion to Exclude Testimony of Plaintiff’s Retained Expert, David
Herring, ECF No. 126, is GRANTED in PART and DENIED in PART, as
outlined in this Order.
DATED: March 30, 2026
BY THE COURT:
_____________________________
REGINA M. RODRIGUEZ
United States District Judge
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